AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.29
AMENDED
AND RESTATED
This
Employment Agreement (this “Agreement”) is
made as of December 1, 2008, by and between First Solar, Inc., a Delaware
corporation having its principal office at 000 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx
000, Xxxxx, Xxxxxxx 00000 (hereinafter “Employer”) and Xxxxx Xxx (hereinafter
“Employee”).
WITNESSETH:
WHEREAS,
Employer and Employee wish to amend and restate the Employment Agreement dated
August 26, 2008 between Employee and Employer (the “Prior Agreement”) and enter
into this agreement relating to the employment of Employee by
Employer.
NOW,
THEREFORE, in consideration of the foregoing premises, and the mutual covenants,
terms and conditions set forth herein, and intending to be legally bound hereby,
Employer and Employee hereby agree as follows:
ARTICLE
I. Employment
1.1 Term; At-Will Nature of
Employment. Employer shall employ Employee as a full-time,
at-will employee, and Employee shall accept employment with Employer as a
full-time, at-will employee. Employer or Employee may terminate this
Agreement at any time and for any reason, with or without cause and with or
without notice, subject to the provisions of this Agreement.
1.2 Position and Duties of
Employee. Employer hereby employs Employee in the initial
capacity of Vice President,
Corporate Controller and Employee hereby accepts such
position. In this position, Employee initially shall report to
Employer’s Chief Financial Officer (the “Supervisor”). Employee
agrees to diligently and faithfully perform such duties as may from time to time
be assigned to Employee by the Supervisor, consistent with Employee’s position
with Employer. Employee recognizes the necessity for established
policies and procedures pertaining to Employer’s business operations, and
Employer’s right to change, revoke or supplement such policies and procedures at
any time, in Employer’s sole discretion. Employee agrees to comply
with such policies and procedures, including those contained in any manuals or
handbooks, as may be amended from time to time in the sole discretion of
Employer.
1.3 No Salary or Benefits
Continuation Beyond Termination. Except as may be required by
applicable law or as otherwise specified in this Agreement, Employer shall not
be liable to Employee for any salary or benefits continuation beyond the date of
Employee’s cessation of employment with Employer. The rights and
obligations of the parties under the provisions of this Agreement, including
Section 1.5 and Articles IV and V, shall survive and remain binding and
enforceable, notwithstanding the termination of Employee’s employment for any
reason, to the extent necessary to preserve the intended benefits of such
provisions.
1.4 Termination of
Employment. Employee’s employment with Employer shall
terminate upon the earliest of: (a) Employee’s death; (b) unless
waived by Employer, Employee’s “Disability”, (which for purposes of this
Agreement, shall mean either a physical or mental condition (as determined by a
qualified physician mutually agreeable to Employer and Employee) which renders
Employee unable, for a period of at least six (6) months, effectively to perform
the obligations, duties and responsibilities of Employee’s employment with
Employer); (c) the termination of Employee’s employment by Employer
for Cause (as hereinafter defined); (d) Employee’s resignation; and
(e) the termination of Employee’s employment by Employer without
Cause. As used herein, “Cause” shall mean Employer’s good faith
determination of: (i) Employee’s dishonest, fraudulent or
illegal conduct relating to the business of Employer; (ii) Employee’s
willful breach or habitual neglect of Employee’s duties or obligations in
connection with Employee’s employment; (iii) Employee’s misappropriation of
Employer funds; (iv) Employee’s conviction of a felony or any other
criminal offense involving fraud or dishonesty, whether or not relating to the
business of Employer or Employee’s employment with Employer; (v) Employee’s
excessive use of alcohol; (vi) Employee’s unlawful use of controlled substances
or other addictive behavior; (vii) Employee’s unethical business conduct;
(viii) Employee’s breach of any statutory or common law duty of loyalty to
Employer; or (ix) Employee’s material breach of this Agreement, the
Non-Competition and Non-Solicitation Agreement between Employer and Employee as
in effect on the date hereof or as may be amended from time to time (the
“Non-Competition Agreement”) or the Confidentiality and Intellectual Property
Agreement between Employer and Employee as in effect on the date hereof or as
may be amended from time to time (the “Confidentiality
Agreement”). Upon termination of Employee’s employment with Employer
for any reason, Employee will promptly return to Employer all materials in any
form acquired by Employee as a result of such employment with Employer and all
property of Employer.
1.5 Severance Payments and
Vacation Pay.
(a) Vacation Pay in the Event of
a Termination of Employment. In the event of the termination
of Employee’s employment with Employer for any reason, Employee shall be
entitled to receive, in addition to the Severance Payments described in Section
1.5(b) below, if any, the dollar value of any earned but unused (and
unforfeited) vacation. Such dollar value shall be paid to Employee
within fifteen (15) days following the date of termination of
employment.
(b) Severance Payments in the
Case of a Termination Without Cause. If Employee’s employment
is terminated by Employer without Cause, then Employee shall be entitled to
severance pay equal to continuation of Employee’s Base Salary (as hereinafter
defined) in effect as of the date of termination of employment, (such salary
continuation, the “Severance Payments”) for a period of twelve (12) months,
payable in accordance with Employer’s regular payroll practices commencing on
the first payroll date on or following the 36th day
following the date of employment termination plus payment of an amount
equal to the prior year’s bonus payable on the date of the first Severance
Payment. Severance Payments shall be reduced by any compensation that
Employee earns during the twelve (12) months following such termination of
employment. Employee agrees to notify Employer of the amounts of such
compensation earned. Severance Payments shall be subject to any
applicable tax withholding requirements. Notwithstanding anything to
the contrary herein, no Severance Payments shall be due or made to Employee
hereunder unless, on or prior to the thirty-sixth (36th) day following the date
of termination of employment, (i) Employee shall have executed and
delivered a general release in favor of Employer and its affiliates, which shall
be substantially in the form of the Separation Agreement and Release attached
hereto as Exhibit
A and otherwise satisfactory to Employer and (ii) such general
release has become effective and irrevocable.
(c) Medical
Insurance. If Employee’s employment is terminated by Employer
without Cause, Employer will provide or pay the cost of continuing the medical
coverage provided by Employer to Employee during his employment at the same or a
comparable coverage level, for a period commencing on the date employment
terminates and ending on the earlier of (i) the date that is twelve (12) months
following such termination and (ii) the date that Employee is covered under a
medical benefits plan of a subsequent employer. Employee agrees to
make a timely COBRA election, to the extent requested by Employer, to facilitate
Employer’s provision of continuation coverage. Except as permitted by
Section 409A (as defined below), the continued benefits provided to Employee
pursuant to this Section 1.5(c) during any calendar year will not affect the
continued benefits to be provided to Employee pursuant to this Section 1.5(c) in
any other calendar year.
(d) Equity Award
Vesting. In the event of (i) the termination of Employee’s
employment with Employer due to death, (ii) the termination of Employee’s
employment due to Disability or (iii) a termination by Employer without
Cause, Employee shall immediately receive an additional twelve (12) months of
vesting credit with respect to Employee’s stock options, stock appreciation
rights, restricted stock or any other equity or equity-based
compensation. The shares underlying any restricted stock units that
become vested pursuant to this Section 1.5(d) shall be payable on the date of
Employee’s termination of employment. Any of Employee’s stock options
and stock appreciation rights that become vested pursuant to this Section 1.5(d)
shall be exercisable immediately upon vesting, and any such stock options and
stock appreciation rights and any of Employee’s stock options and stock
appreciation rights that are otherwise vested and exercisable as of Employee’s
termination of employment shall remain exercisable for 12 months following
Employee’s termination of employment, provided that, if during such period
Employee is under any trading restriction due to a lockup agreement or closed
trading window, such period shall be tolled during the period of such trading
restriction. In the event the terms of this Agreement are contrary to
or conflict with the terms of any document or agreement addressing Employee’s
stock options, restricted stock, restricted stock units or any other equity
compensation, the terms of this Agreement shall govern and control; provided
that, notwithstanding anything to the contrary herein, in no event shall any
stock option or stock appreciation right continue to be exercisable after the
original expiration date of such stock option or stock appreciation
right.
ARTICLE
II. Compensation
2.1 Base
Salary. Employee shall be compensated at an annual base salary
of Two Hundred Twenty-Nine
Thousand Nine Hundred
Dollars ($229,900) (the “Base Salary”) while
Employee is employed by Employer under this Agreement, subject to such annual
increases that Employer may, in its sole discretion, determine to be
appropriate. Such Base Salary shall be paid in accordance with
Employer’s standard policies and shall be subject to applicable tax withholding
requirements.
2.2 Annual Bonus
Eligibility. Employee shall be eligible to receive an annual
bonus of up to forty percent
(40%) of Employee’s Base Salary based upon individual and company
performance, as determined by Employer in its sole discretion. The
specific bonus eligibility and the standards for earning a bonus will be
developed by Employer and communicated to Employee as soon as practicable after
the beginning of each year.
2.3 Benefits;
Vacation. Employee shall be eligible to receive all benefits
as are available to similarly situated employees of Employer generally, and any
other benefits that Employer may, in its sole discretion, elect to grant to
Employee from time to time. In addition, Employee shall be entitled
to three (3) weeks paid vacation per year, which shall be accrued in accordance
with Employer's policies applicable to similarly situated employees of
Employer.
2.4 Reimbursement of Business
Expenses. Employee may incur reasonable expenses in the course
of employment hereunder for which Employee shall be eligible for reimbursement
or advances in accordance with Employer’s standard policy therefor.
2.5 Equity
Awards. Employee will be eligible to participate in Employer’s
equity participation programs to acquire options or equity incentive
compensation units in the common stock of Employer, subject to and/or in
accordance with the following: (i) the additional terms contained in
Employer’s equity grant documentation; (ii) approval, if required, of Employer’s
equity incentive plan by Employer’s board of directors (the “Board”) and the
shareholders of Employer; (iii) approval of the grants by the Board; (iv)
Employee’s execution of documents requested by Employer at the time of grant;
(v) Employee’s continued employment through the grant date; (vi) the terms of
the 2006 Omnibus Equity Incentive Compensation Plan or the successor thereto;
and (vii) the policies, procedures and practices that may be adopted from time
to time by Employer in its sole discretion for granting such options or equity
incentive compensation units.
2.6 Location. Employee’s
position will be based in Tempe, Arizona.
ARTICLE
III. Absence of
Restrictions
3.1 Employee
hereby represents and warrants to Employer that Employee has full power,
authority and legal right to enter into this Agreement and to carry out all
obligations and duties hereunder and that the execution, delivery and
performance by Employee of this Agreement will not violate or conflict with, or
constitute a default under, any agreements or other understandings to which
Employee is a party or by which Employee may be bound or affected, including any
order, judgment or decree of any court or governmental
agency. Employee further represents and warrants to Employer that
Employee is free to accept employment with Employer as contemplated herein and
that Employee has no prior or other obligations or commitments of any kind to
any person, firm, partnership, association, corporation, entity or business
organization that would in any way hinder or interfere with Employee’s
acceptance of, or the full performance of, Employee’s duties
hereunder.
ARTICLE
IV. Miscellaneous
4.1 Withholding. Any
payments made under this Agreement shall be subject to applicable federal, state
and local tax reporting and withholding requirements.
4.2 Governing
Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without reference
to the principles of conflicts of laws. Any judicial action commenced
relating in any way to this Agreement including the enforcement, interpretation
or performance of this Agreement, shall be commenced and maintained in a court
of competent jurisdiction located in Maricopa County, Arizona. In any
action to enforce this Agreement, the prevailing party shall be entitled to
recover its litigation costs, including its attorneys’ fees. The
parties hereby waive and relinquish any right to a jury trial and agree that any
dispute shall be heard and resolved by a court and without a
jury. The parties further agree that the dispute resolution,
including any discovery, shall be accelerated and expedited to the extent
possible. Each party’s agreements in this Section 4.2 are made in
consideration of the other party’s agreements in this Section 4.2, as well as in
other portions of this Agreement.
4.3 No
Waiver. The failure of Employer or Employee to insist in any
one or more instances upon performance of any terms, covenants and conditions of
this Agreement shall not be construed as a waiver or relinquishment of any
rights granted hereunder or of the future performance of any such terms,
covenants or conditions.
4.4 Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if personally delivered,
delivered by facsimile transmission or by courier or mailed, registered or
certified mail, postage prepaid as follows:
If to
Employer: First
Solar, Inc.
000 Xxxx Xxxxxxxxxx
Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention:
Corporate Secretary
If to
Employee: To
Employee’s then current address on file with
Employer
Or at
such other address or addresses as any such party may have furnished to the
other party in writing in a manner provided in this Section 4.4.
4.5 Assignability and Binding
Effect. This Agreement is for personal services and is
therefore not assignable by Employee. This Agreement may be assigned
by Employer to any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business or
assets of Employer. This Agreement shall be binding upon and inure to
the benefit of the parties, their successors, assigns, heirs, executors and
legal representatives. If there shall be a successor to Employer or
Employer shall assign this Agreement, then as used in this Agreement, (a) the
term “Employer” shall mean Employer as hereinbefore defined and any successor or
any permitted assignee, as applicable, to which this Agreement is assigned and
(b) the term “Board” shall mean the Board as hereinbefore defined and the board
of directors or equivalent governing body of any successor or any permitted
assignee, as applicable, to which this Agreement is assigned.
4.6 Entire
Agreement. This Agreement, the Non-Competition Agreement and
the Confidentiality Agreement set forth the entire agreement between Employer
and Employee regarding the terms of Employee’s employment and supersede all
prior agreements between Employer and Employee covering the terms of Employee’s
employment (including the Prior Agreement). This Agreement may not be
amended or modified except in a written instrument signed by Employer and
Employee identifying this Agreement and stating the intention to amend or modify
it.
4.7 Severability. If it is determined by a
court of competent jurisdiction that any of the restrictions or language in this
Agreement are for any reason invalid or unenforceable, the parties desire and
agree that the court revise any such restrictions or language, including
reducing any time or geographic area, so as to render them valid and enforceable
to the fullest extent allowed by law. If any restriction or language
in this Agreement is for any reason invalid or unenforceable and cannot by law
be revised so as to render it valid and enforceable, then the parties desire and
agree that the court strike only the invalid and unenforceable language and
enforce the balance of this Agreement to the fullest extent allowed by
law. Employer and Employee agree that the invalidity or
unenforceability of any provision of this Agreement shall not affect the
remainder of this Agreement.
4.8 Construction. As
used in this Agreement, words such as “herein,” “hereinafter,” “hereby” and
“hereunder,” and the words of like import refer to this Agreement, unless the
context requires otherwise. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.
ARTICLE
V. Section
409A
5.1 In
General. It is intended that the provisions of this Agreement
comply with Section 409A of the Internal Revenue Code of 1986, as amended, and
the regulations thereunder as in effect from time to time (collectively,
“Section 409A”), and all provisions of this Agreement shall be construed and
interpreted in a manner consistent with the requirements for avoiding taxes or
penalties under Section 409A.
5.2 No Alienation, Set-offs,
Etc. Neither Employee nor any creditor or beneficiary of
Employee shall have the right to subject any deferred compensation (within the
meaning of Section 409A) payable under this Agreement or under any other plan,
policy, arrangement or agreement of or with Employer or any of its affiliates
(this Agreement and such other plans, policies, arrangements and agreements, the
“Employer Plans”) to any anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance, attachment or garnishment. Except as permitted
under Section 409A, any deferred compensation (within the meaning of Section
409A) payable to or for the benefit of Employee under any Employer Plan may not
be reduced by, or offset against, any amount owing by Employee to Employer or
any of its affiliates.
5.3 Possible Six-Month
Delay. If, at the time of Employee’s separation from
service (within the meaning of Section 409A), (a) Employee shall be a specified
employee (within the meaning of Section 409A and using the identification
methodology selected by Employer from time to time) and (b) Employer shall make
a good faith determination that an amount payable under an Employer Plan
constitutes deferred compensation (within the meaning of Section 409A) the
payment of which is required to be delayed pursuant to the six-month delay rule
set forth in Section 409A in order to avoid taxes or penalties under Section
409A, then Employer (or an affiliate thereof, as applicable) shall not pay such
amount on the otherwise scheduled payment date but shall instead accumulate such
amount and pay it, without interest, on the first day of the seventh month
following such separation from service.
5.4 Treatment of
Installments. For purposes of Section 409A, each of the
installments of continued Base Salary referred to in Section 1.5(b) shall be
deemed to be a separate payment as permitted under Treas. Reg. Sec.
1.409A-2(b)(2)(iii).
IN
WITNESS WHEREOF, Employer has caused this Agreement to be executed by one of its
duly authorized officers and Employee has individually executed this Agreement,
each intending to be legally bound, as of the date first above
written.
EMPLOYEE:
/s/ Xxxxx
Xxx
Xxxxx
Xxx
EMPLOYER:
By:
/s/ Xxxxx
Xxxxxxxx
Name
Printed: Xxxxx
Xxxxxxxx
Title:
Vice President, Human
Resources
Exhibit
A
SEPARATION AGREEMENT AND
RELEASE
I. Release. For
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, with the intention of binding himself/herself,
his/her heirs, executors, administrators and assigns, does hereby release and
forever discharge First Solar, Inc., a Delaware corporation (the “Company”), and
its present and former officers, directors, executives, agents, employees,
affiliated companies, subsidiaries, successors, predecessors and assigns
(collectively, the “Released Parties”), from any and all claims, actions, causes
of action, demands, rights, damages, debts, accounts, suits, expenses,
attorneys’ fees and liabilities of whatever kind or nature in law, equity, or
otherwise, whether now known or unknown (collectively, the “Claims”), which the
undersigned now has, owns or holds, or has at any time heretofore had, owned or
held against any Released Party, arising out of or in any way connected with the
undersigned’s employment relationship with the Company, its subsidiaries,
predecessors or affiliated entities, or the termination thereof, under any
Federal, state or local statute, rule, or regulation, or principle of common,
tort or contract law, including but not limited to, the Fair Labor Standards Act
of 1938, as amended, 29 U.S.C. §§ 201 et seq., the Family and Medical Leave Act
of 1993, as amended (the “FMLA”), 29 U.S.C. §§ 2601 et seq., Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq., the Age
Discrimination in Employment Act of 1967, as amended, 29 U.S.C. §§ 621 et seq.,
the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101 et
seq., the Worker Adjustment and Retraining Notification Act of 1988, as amended,
29 U.S.C. §§ 2101 et seq., the Employee Retirement Income Security Act of 1974,
as amended, 29 U.S.C. §§ 1001 et seq., and any other equivalent or similar
Federal, state, or local statute; provided, however, that nothing herein shall
release the Company (a) from its obligations under that certain Employment
Agreement to which the undersigned is a party and pursuant to which this
Separation Agreement and Release is being executed and delivered, (b) from any
claims by the undersigned arising out of any director and officer
indemnification or insurance obligations in favor of the undersigned (c) from
any director and officer indemnification obligations under the Company’s
by-laws, and (d) from any claim for benefits under the First Solar, Inc. 401(k)
Plan. The undersigned understands that, as a result of executing this
Separation Agreement and Release, he/she will not have the right to assert that
the Company or any other Released Party unlawfully terminated his/her employment
or violated any of his/her rights in connection with his/her employment or
otherwise.
The
undersigned affirms that he/she has not filed or caused to be filed, and
presently is not a party to, any Claim, complaint or action against any Released
Party in any forum or form and that he/she knows of no facts which may lead to
any Claim, complaint or action being filed against any Released Party in any
forum by the undersigned or by any agency, group, or class
persons. The undersigned further affirms that he/she has been paid
and/or has received all leave (paid or unpaid), compensation, wages, bonuses,
commissions, and/or benefits to which he/she may be entitled and that no other
leave (paid or unpaid), compensation, wages, bonuses, commissions and/or
benefits are due to him/her from the Company and its subsidiaries, except as
specifically provided in this Separation Agreement and Release. The
undersigned furthermore affirms that he/she has no known workplace injuries or
occupational diseases and has been provided and/or has not been denied any leave
requested under the FMLA. If any agency or court assumes jurisdiction
of any such Claim, complaint or action against any Released Party on behalf of
the undersigned, the undersigned will request such agency or court to withdraw
the matter.
The
undersigned further declares and represents that he/she has carefully read and
fully understands the terms of this Separation Agreement and Release and that
he/she has been advised and had the opportunity to seek the advice and
assistance of counsel with regard to this Separation Agreement and Release, that
he/she may take up to and including 21 days from receipt of this Separation
Agreement and Release, to consider whether to sign this Separation Agreement and
Release, that he/she may revoke this Separation Agreement and Release within
seven calendar days after signing it by delivering to the Company written
notification of revocation, and that he/she knowingly and voluntarily, of
his/her own free will, without any duress, being fully informed and after due
deliberate action, accepts the terms of and signs the same as his own free
act.
II. Protected
Rights. The Company and the undersigned agree that nothing in
this Separation Agreement and Release is intended to or shall be construed to
affect, limit or otherwise interfere with any non-waivable right of the
undersigned under any Federal, state or local law, including the right to file a
charge or participate in an investigation or proceeding conducted by the Equal
Employment Opportunity Commission (“EEOC”) or to exercise any other right that
cannot be waived under applicable law. The undersigned is releasing,
however, his/her right to any monetary recovery or relief should the EEOC or any
other agency pursue Claims on his/her behalf. Further, should the
EEOC or any other agency obtain monetary relief on his/her behalf, the
undersigned assigns to the Company all rights to such relief.
III. Equitable
Remedies. The undersigned acknowledges that a violation by the
undersigned of any of the covenants contained in this Agreement would cause
irreparable damage to the Company and its subsidiaries in an amount that would
be material but not readily ascertainable, and that any remedy at law (including
the payment of damages) would be inadequate. Accordingly, the
undersigned agrees that, notwithstanding any provision of this Separation
Agreement and Release to the contrary, the Company shall be entitled (without
the necessity of showing economic loss or other actual damage) to injunctive
relief (including temporary restraining orders, preliminary injunctions and/or
permanent injunctions) in any court of competent jurisdiction for any actual or
threatened breach of any of the covenants set forth in this Agreement in
addition to any other legal or equitable remedies it may have.
IV. Return of
Property. The undersigned shall return to the Company on or
before [10 DAYS AFTER TERMINATION DATE], all property of the Company in the
undersigned’s possession or subject to the undersigned’s control, including
without limitation any laptop computers, keys, credit cards, cellular telephones
and files. The undersigned shall not alter any of the Company’s
records or computer files in any way after [TERMINATION DATE].
V. Severability. If
any term or provision of this Separation Agreement and Release is invalid,
illegal or incapable of being enforced by any applicable law or public policy,
all other conditions and provisions of this Separation Agreement and Release
shall nonetheless remain in full force and effect so long as the economic and
legal substance of the transactions contemplated by this Separation Agreement
and Release is not affected in any manner materially adverse to any
party.
VI. GOVERNING
LAW. THIS
SEPARATION AGREEMENT AND RELEASE SHALL BE DEEMED TO BE MADE IN THE STATE OF
DELAWARE, AND THE VALIDITY, INTERPRETATION, CONSTRUCTION AND PERFORMANCE OF THIS
AGREEMENT IN ALL RESPECTS SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE
WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW.
Effective
on the eighth calendar day following the date set forth below.
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By
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Name:
Title:
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EMPLOYEE:
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Xxxxx
Xxx
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Date
Signed:____________________
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Zhu
Sample Release
Agreement (rev.
10/27/08)
NON-COMPETITION AND
NON-SOLICITATION AGREEMENT
In
consideration of Employee’s (as defined below) ongoing at-will employment with
Employer (as defined below) or one of its subsidiary companies, the compensation
and benefits provided to me including those set forth in a separate Employment
Agreement and Confidentiality and Intellectual Property Agreement (the
“Confidentiality Agreement”) and Employer’s agreement to provide Employee with
access to Employer’s confidential information, intellectual property and trade
secrets, access to its customers and other promises made below, Employee enters
into the following non-competition and non-solicitation agreement:
This
Non-Competition and Non-Solicitation Agreement (“Agreement”) is effective by and
between Xxxxx Xxx
(“Employee”) and First Solar, Inc. (“Employer”) as of August 26, 2008.
Whereas,
Employee desires to be employed by Employer and Employer has agreed to employ
Employee in the current position of Employee with Employer, or such other
position as Employer may from time to time determine;
Whereas,
because of the nature of Employee’s duties, in the performance of such duties,
Employee will have access to and will necessarily utilize sensitive, secret and
proprietary data and information, the value of which derives from its secrecy
from Employer’s competitors, which, like Employer, sell products and services
throughout the world;
Whereas,
Employee and Employer acknowledge and agree that Employee’s conduct in the
manner prohibited by this Agreement during, or for the period specified in this
Agreement following the termination of, Employee’s employment with Employer,
would jeopardize Employer’s Confidential Information (as defined in the
Confidentiality Agreement) and the goodwill Employer has developed and generated
over a period of years, and would cause Employer to experience unfair
competition and immediate, irreparable harm; and
Whereas,
in consideration of Employer’s hiring Employee, Employee therefore has agreed to
the terms of this Agreement, the Employment Agreement and the Confidentiality
Agreement, and specifically to the restrictions contained herein.
Therefore,
Employee and Employer hereby agree as follows (THE FOLLOWING ARE IMPORTANT
RESTRICTIONS TO WHICH EMPLOYEE AGREES IN ORDER TO INDUCE EMPLOYER TO RETAIN
EMPLOYEE AND WHICH, ONCE EMPLOYEE SIGNS THIS AGREEMENT, ARE BINDING ON
EMPLOYEE. BY SIGNING THIS AGREEMENT, EMPLOYEE SIGNIFIES THAT EMPLOYEE
HAS READ THESE RESTRICTIONS CAREFULLY BEFORE SIGNING THIS AGREEMENT, UNDERSTANDS
THE AGREEMENT’S TERMS, AND ASSENTS TO ABIDE BY THESE
RESTRICTIONS.):
1. Nature
and Period of Restriction. At all times during
Employee’s employment and for a period of twelve months after the
termination of employment (for any reason, including discharge or resignation)
with Employer (the “Restricted Period”), Employee agrees as
follows:
1.1. Employee
agrees not to engage or assist, in any way or in any capacity, anywhere in the
Territory (as defined below), either directly or indirectly, (a) in the business
of the development, sale, marketing, manufacture or installation that would be
in direct competition with of any type of product sold, developed, marketed,
manufactured or installed by Employer during Employee’s employment with
Employer, including photovoltaic modules, or (b) in any other activity in direct
competition or that would be in direct competition with the business of Employer
as that business exists and is conducted (or with any business planned or
seriously considered, of which Employee has knowledge) during Employee’s
employment with Employer. In addition and in particular, Employee
agrees not to sell, market, provide or distribute, or endeavor to sell, market,
provide or distribute, in any way, directly or indirectly, on behalf of Employee
or any other person or entity, any products or services competitive with those
of Employer to any person or entity which is or was an actual or prospective
customer of Employer at any time during Employee’s employment by
Employer.
1.2. “Territory”
for purposes of this Agreement means North America, South America, Australia,
Europe and Asia.
1.3. Employee
agrees not to solicit, recruit, hire, employ or attempt to hire or employ, or
assist any other person or entity in the recruitment or hiring of, any person
who is (or was) an employee of Employer, and agrees not to otherwise urge,
induce or seek to induce any person to terminate his or her employment with
Employer.
1.4. The
parties understand and agree that the restrictions set forth in the paragraphs
in this Section 1 also extend to Employee’s recommending or directing any such
actual or prospective customers to any other competitive concerns, or assisting
in any way any competitive concerns in soliciting or providing products or
services to such customers, whether or not Employee personally provides any
products or services directly to such customers. For purposes of this
Agreement, a prospective customer is one that Employer solicited or with which
Employer otherwise sought to engage in a business transaction during the time
that Employee is or was employed by Employer.
1.5. Employee
and Employer acknowledge and agree that Employer has expended substantial
amounts of time, money and effort to develop business strategies, customer
relationships, employee relationships, trade secrets and goodwill and to build
an effective organization and that Employer has a legitimate business interest
and right in protecting those assets as well as any similar assets that Employer
may develop or obtain. Employee and Employer acknowledge that
Employer is entitled to protect and preserve the going concern value of Employer
and its business and trade secrets to the extent permitted by
law. Employee acknowledges and agrees the restrictions imposed upon
Employee under this Agreement are reasonable and necessary for the protection of
Employer’s legitimate interests, including Employer’s Confidential Information,
intellectual property, trade secrets and goodwill. Employee and
Employer acknowledge that Employer is engaged in a highly competitive business,
that Employee is expected to serve a key role with Employer, that Employee will
have access to Employer’s Confidential Information, that Employer’s business and
customers and prospective customers are located around the world, and that
Employee could compete with Employer from virtually any location in the
world. Employee acknowledges and agrees that the restrictions set
forth in this Agreement do not impose any substantial hardship on Employee and
that Employee will reasonably be able to earn a livelihood without violating any
provision of this Agreement. Employee acknowledges and agrees that,
in addition to Employer’s agreement to hire him, part of the consideration for
the restrictions in this Section 1 consists of Employer’s agreement to make
severance payments as set forth in the separate Employment Agreement between
Employer and Employee.
1.6. Employee
agrees to comply with each of the restrictive covenants contained in this
Agreement in accordance with its terms, and Employee shall not, and hereby
agrees to waive and release any right or claim to, challenge the reasonableness,
validity or enforceability of any of the restrictive covenants contained in this
Agreement.
2. Notice by
Employee to Employer. Prior to engaging in any employment or
business during the Restricted Period, Employee agrees to provide prior written
notice (by certified mail) to Employer in accordance with Section 6, stating the
description of the activities or position sought to be undertaken by Employee,
and to provide such further information as Employer may reasonably request in
connection therewith (including the location where the services would be
performed and the present or former customers or employees of Employer
anticipated to receive such products or services). Employer shall be
free to object or not to object in its unfettered discretion, and the parties
agree that any actions taken or not taken by Employer with respect to any other
employees or former employees shall have no bearing whatsoever on Employer’s
decision or on any questions regarding the enforceability of any of these
restraints with respect to Employee.
3. Notice to
Subsequent Employer. Prior to accepting employment with any
other person or entity during the Restricted Period, Employee shall provide such
prospective employer with written notice of the provisions of this Agreement,
with a copy of such notice delivered promptly to Employer in accordance with
Section 6.
4. Extension
of Non-Competition Period in the Event of Breach. It is agreed that the
Restricted Period shall be extended by an amount of time equal to the amount of
time during which Employee is in breach of any of the restrictive covenants set
forth above.
5. Judicial
Reformation to Render Agreement Enforceable. If it is determined by a
court of competent jurisdiction that any of the restrictions or language in this
Agreement are for any reason invalid or unenforceable, the parties desire and
agree that the court revise any such restrictions or language, including
reducing any time or geographic area, so as to render them valid and enforceable
to the fullest extent allowed by law. If any restriction or language
in this Agreement is for any reason invalid or unenforceable and cannot by law
be revised so as to render it valid and enforceable, then the parties desire and
agree that the court strike only the invalid and unenforceable language and
enforce the balance of this Agreement to the fullest extent allowed by
law. Employer and Employee agree that the invalidity or
unenforceability of any provision of this Agreement shall not affect the
remainder of this Agreement.
6. Notice. All
documents, notices or other communications that are required or permitted to be
delivered or given under this Agreement shall be in writing and shall be deemed
to be duly delivered or given when received.
If to
Employer: First
Solar, Inc.
000 Xxxx Xxxxxxxxxx
Xxxxxx
Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention:
Human Resources, with a copy to the Legal Department
Fax: (000)
000-0000
|
If
to Employee:
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To
Employee’s then current address on file with
Employer
|
7. Enforcement. Except as expressly
stated herein, the covenants contained in this Agreement shall be construed as
independent of any other provision or covenants of any other agreement between
Employer and Employee, and the existence of any claim or cause of action of
Employee against Employer, whether predicated on this Agreement or otherwise, or
the actions of Employer with respect to enforcement of similar restrictions as
to other employees, shall not constitute a defense to the enforcement by
Employer of such covenants. Employee acknowledges and agrees that
Employer has invested great time, effort and expense in its business and
reputation, that the products and information of Employer are unique and
valuable, and that the services performed by Employee are unique and
extraordinary, and Employee agrees that Employer will suffer immediate,
irreparable harm and shall be entitled, upon a breach or a threatened breach of
this Agreement, to emergency, preliminary, and permanent injunctive relief
against such activities, without having to post any bond or other security, and
in addition to any other remedies available to Employer at law or
equity. Any specific right or remedy set forth in this Agreement,
legal, equitable or otherwise, shall not be exclusive but shall be cumulative
upon all other rights and remedies allowed or by law, including the recovery of
money damages. The failure of Employer to enforce any of the
provisions of this Agreement, or the provisions of any agreement with any other
Employee, shall not constitute a waiver or limit any of Employer’s
rights.
8. At-Will
Employment; Termination. This Agreement does not
alter the at-will nature of Employee’s employment by Employer, and Employee’s
employment may be terminated by either party, with or without notice and with or
without cause, at any time. In addition to the foregoing provisions
of this Agreement, upon Employee’s termination, Employee shall cease all
identification of Employee with Employer and/or the business, products or
services of Employer, and the use of Employer’s name, trademarks, trade name or
fictitious name. All provisions, obligations, and restrictions in
this Agreement shall survive termination of Employee’s employment with
Employer.
9. Choice of
Law, Choice of Forum. This Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of Delaware, without reference to the principles of conflicts of
laws. Any judicial action commenced relating in any way to this
Agreement including the enforcement, interpretation, or performance of this
Agreement, shall be commenced and maintained in a court of competent
jurisdiction located in Maricopa County, Arizona. In any action to
enforce this Agreement, the prevailing party shall be entitled to recover its
litigation costs, including its attorneys’ fees. The parties hereby
waive and relinquish any right to a jury trial and agree that any dispute shall
be heard and resolved by a court and without a jury. The parties
further agree that the dispute resolution, including any discovery, shall be
accelerated and expedited to the extent possible. Each party’s
agreements in this Section 9 are made in consideration of the other party’s
agreements in this Section 9, as well as in other portions of this
Agreement.
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|
10.
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Entire
Agreement, Modification and
Assignment.
|
10.1. This
Agreement, the Employment Agreement and the Confidentiality Agreement comprise
the entire agreement relating to the subject matter hereof between the parties
and supersede, cancel, and annul any and all prior agreements or understandings
between the parties concerning the subject matter of the Agreement.
10.2. This
Agreement may not be modified orally but may only be modified in a writing
executed by both Employer and Employee.
10.3. This
Agreement shall inure to the benefit of Employer, its successors and assigns,
and may be assigned by Employer. Employee’s rights and obligations
under this Agreement may not be assigned by Employee.
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|
11.
|
Construction.
|
As used in this
Agreement, words such as “herein,”
“hereinafter,”
|
“hereby”
and “hereunder,” and the words of like import refer to this Agreement, unless
the context requires otherwise. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.
IN WITNESS WHEREOF, the
parties have executed this Agreement, effective as of the day and year first
written above.
EMPLOYER: EMPLOYEE:
By: /s/ Xxxxx
Xxxxxxxx
s/ Xxxxx
Xxx
Its: VP Human
Resources Printed Name: Xxxxx
Xxx
Printed
Name: Xxxxx
Xxxxxxxx
Zhu
Noncompetition/Nonsolicitation Agreement(eff. 8/26/07)
First
Solar, Inc.
Confidentiality
and Intellectual Property Agreement
|
Employee:
|
Xxxxx
Xxx
|
|
Place
of Signing:
Date:
|
Tempe
[City], Arizona [State]
8/29,
2008
|
In
consideration of my ongoing at-will employment with First Solar, Inc. or one of
its subsidiary companies (collectively, the “Company”), for the compensation and
benefits provided to me, and for the Company’s agreement to provide me with
access to experience, knowledge, and Confidential Information (as defined below)
gained by me in the course of such employment relating to the methods, plans,
and operations of the Company and its suppliers, clients, and customers I enter
into the following Confidentiality and Intellectual Property Agreement (the
“Agreement”) and agree as follows:
1. Except
for any items I have identified and described in a writing given to the Company
and acknowledged in writing by an officer of the Company on or before the date
of this Agreement, which items are specifically excluded from the operation of
the applicable provisions hereof, I do not own, nor have any interest in, any
patents, patent applications, inventions, improvements, methods, discoveries,
designs, trade secrets, copyrights, and/or other patentable or proprietary
rights.
2. I
will promptly and fully disclose to the Company all developments, inventions,
ideas, methods, discoveries, designs, and innovations (collectively referred to
herein as "Developments"), whether patentable or not, relating wholly or in part
to my work for the Company or resulting wholly or in part from my use of the
Company's materials or facilities, which I may make or conceive, whether or not
during working hours, whether or not using the Company’s materials, whether or
not on the Company facilities, alone or with others, at any time during my
employment or within ninety (90) days after termination thereof, and I agree
that all such Developments shall be the exclusive property of the Company, and
that I shall have no proprietary, moral or shop rights in connection
therewith.
3. I
will assign, and do hereby assign, to the Company or the Company's designee, my
entire right, title and interest in and to all such Developments including all
trademarks, copyrights, moral rights and mask work rights in or relating to such
Developments, and any patent applications filed and patents granted thereon
including those in foreign countries; and I agree, both during my employment by
the Company and thereafter, to execute any patent or other papers deemed
necessary or appropriate by the Company for filing with the United States or any
other country covering such Developments as well as any papers that the Company
may consider necessary or helpful in obtaining or maintaining such patents
during the prosecution of patent applications thereon or during the conduct of
any interference, litigation, or any other matter in connection therewith, and
to transfer to the Company any such patents that may be issued in my
name. If, for some reason, I am unable to execute such patent or
other papers, I hereby irrevocably designate and appoint the Company and its
designees and their duly authorized officers and agents, as the case may be, as
my agent and attorney in fact to act for and in my behalf and stead to execute
any documents and to do all other lawfully permitted acts in connection with the
foregoing. I agree to cooperate with and assist the Company as
requested by the Company to provide documentation reflecting the Company’s sole
and complete ownership of the Developments. All expenses incident to
the filing of such applications, the prosecution thereof and the conduct of any
such interference, litigation, or other matter will be borne by the
Company. This Section 3 shall survive the termination of this
Agreement.
4. Subject
to Section 5 below, I will not, either during my employment with the
Company or at any time thereafter, use, disclose or authorize, or assist anyone
else to disclose or use or make known for anyone’s benefit, any information,
knowledge or data of the Company or any supplier, client, or customer of the
Company in any way acquired by me during or as a result of my employment with
the Company, whether before or after the date of this Agreement (hereinafter the
"Confidential Information"), publicly or outside the Company, its subsidiaries,
agents, employees, officers and directors. Such Confidential
Information shall include the following:
|
(a)
|
Information
of a business nature including financial information and information about
sales, marketing, purchasing, prices, costs, suppliers and
customers;
|
|
(b)
|
Information
pertaining to future developments including research and
development, new product ideas and developments, strategic plans, and
future marketing and merchandising plans and
ideas;
|
|
(c)
|
Information
and material that relate to the Company's manufacturing methods, machines,
articles of manufacture, compositions, inventions, engineering services,
technological developments, "know-how", purchasing, accounting,
merchandising and licensing;
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|
(d)
|
Trade
secrets of the Company, including information and material with respect to
the design, construction, capacity or method of operation of the Company's
equipment or products and information regarding the Company’s customers
and sales or marketing efforts and
strategies;
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|
(e)
|
Software
in various stages of development (source code, object code, documentation,
diagrams, flow charts), designs, drawings, specifications, models, data
and customer information; and
|
|
(f)
|
Any
information of the type described above that the Company obtained from
another party and that the Company treats as proprietary or designates as
confidential, whether or not owned or developed by the
Company.
|
5. It
is understood and agreed that the term “Confidential Information” shall not
include information which is generally available to the public, other than
through any act or omission on the part of Employee in breach of this
Agreement.
6. I
acknowledge (a) that such Confidential Information derives its value to the
Company from the fact that it is maintained as confidential and secret and is
not readily available to the general public or the Company’s competitors; (b)
that the Company undertakes great effort and sufficient measures to maintain the
confidentiality and secrecy of such information; and (c) that such Confidential
Information is protected and covered by this Agreement regardless of whether or
not such Confidential Information is a “trade secret” under applicable
law. I further acknowledge and agree that the obligations and
restrictions herein are reasonable and necessary to protect the Company’s
legitimate business interests, and that this Agreement does not impose an
unreasonable or undue burden on me and will not prevent me from earning a
livelihood subsequent to the termination of my employment. I agree to
comply with each of the restrictive covenants contained in this Agreement in
accordance with its terms, and will not, and I hereby agree to waive and release
any right or claim to, challenge the reasonableness, validity or enforceability
of any of the restrictive covenants contained in this Agreement.
7. I
will deliver to the Company promptly upon request, and, in any event, on the
date of termination of my employment, all documents, copies thereof and other
materials in my possession, including any notes or memoranda prepared by me,
pertaining to the business of the Company, whether or not including any
Confidential Information, and thereafter will promptly deliver to the Company
any documents and copies thereof pertaining to the business of the Company that
come into my possession.
8. I
represent that I have no agreements with or obligations to others with respect
to any innovations, developments, or information that could conflict with any of
the foregoing.
9. If
this Agreement is
subject to any applicable local laws, and to the extent of inconsistency with
such applicable laws, this Agreement will be construed, to the extent possible,
in a manner that is consistent with such applicable laws. The
invalidity or unenforceability of any provision of this Agreement, whether in
whole or in part, shall not in any way affect the validity and/or enforceability
of any of the other provisions of this Agreement. Any invalid or
unenforceable provision or portion thereof shall be deemed severable to the
extent of any such invalidity or unenforceability. The restrictions
contained in this Agreement are reasonable for the purpose of preserving for the
Company and its affiliates the proprietary rights, intangible business value and
Confidential Information of the Company and its affiliates. If it is
determined by a court of competent jurisdiction that any of the restrictions or
language in this Agreement is for any reason invalid or unenforceable, the
parties desire and agree that the court revise any such restrictions or language
so as to render it valid and enforceable to the fullest extent allowed by
law. If any restriction or language in this Agreement is for any
reason invalid or unenforceable and cannot by law be revised so as to render it
valid and enforceable, then the parties desire and agree that the court strike
only the invalid and unenforceable language and enforce the balance of this
Agreement to the fullest extent allowed by law.
10. I
agree that any breach or threatened breach by me of any of the provisions in
this Agreement cannot be remedied solely by the recovery of
damages. I expressly agree that upon a threatened breach or violation
of any of such provisions, the Company, in addition to all other remedies, shall
be entitled as a matter of right, and without posting a bond or other security,
to emergency, preliminary, and permanent injunctive relief in any court of
competent jurisdiction. Nothing herein, however, shall be construed
as prohibiting the Company from pursuing, in concert with an injunction or
otherwise, any other remedies available at law or in equity for such breach or
threatened breach, including the recovery of damages.
11. This
Agreement is made in consideration of my continued employment by the
Company.
12. Upon
termination of my employment with the Company, I shall, if requested by the
Company, reaffirm my recognition of the importance of maintaining the
confidentiality of the Company's Confidential Information and reaffirm all of my
obligations set forth herein. The provisions, obligations, and
restrictions in this Agreement shall survive the termination of my employment,
and will be binding on me whether or not the Company requests a
re-affirmation.
13. This
Agreement, my Employment Agreement with the Company (the “Employment
Agreement”), the Noncompetition Agreement (as defined in the Employment
Agreement) represent the full and complete understanding between me and the
Company with respect to the subject matter hereof and supersedes all prior
representations and understandings, whether oral or written regarding such
subject matter. This Agreement may not be changed, modified,
released, discharged, abandoned or otherwise terminated, in whole or in part,
except by an instrument in writing signed by both the Company and
Employee. My obligations under this Agreement shall be binding upon
my heirs, executors, administrators, or other legal representatives or assigns,
and this Agreement shall inure to the benefit of the Company, its successors,
and assigns.
14. This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of Delaware without reference to principles of conflict of
laws. Any judicial action commenced relating in any way to this
Agreement including the enforcement, interpretation, or performance of this
Agreement, shall be commenced and maintained in a court of competent
jurisdiction located in Maricopa County, Arizona. In any action to
enforce this Agreement, the prevailing party shall be entitled to recover its
litigation costs, including its attorneys’ fees. The parties hereby
waive and relinquish any right to a jury trial and agree that any dispute shall
be heard and resolved by a court and without a jury. The parties
further agree that the dispute resolution, including any discovery, shall be
accelerated and expedited to the extent possible. Each party’s
agreements in this Section 14 are made in consideration of the other party’s
agreements in this Section 14, as well as in other portions of this
Agreement.
15. As
used in this Agreement, words such as “herein,” “hereinafter,” “hereby” and
“hereunder,” and the words of like import refer to this Agreement, unless the
context requires otherwise. The words “include,” “includes” and
“including” shall be deemed to be followed by the phrase “without
limitation”.
|
Signed:
|
/s/ Xxxxx Xxx
Employee
Print
Name: Xxxxx Xxx
|
|
Agreed
to by First Solar, Inc.
|
|
|
By: /s/
Xxxxx Xxxxxxxx
Its: VP Human Resources
|
|
