EXHIBIT 10.3
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Agreement"), is entered into as of
______________, 2006 by and between Canadian Solar Inc., a corporation
incorporated under the laws of the Province of Ontario, Canada (the "Company")
and ________________ (the "Employee").
RECITALS
A. The Company desires to employ the Employee as its [____________________] and
to assure itself of the services of the Employee during the term of Employment
(as defined below).
B. The Employee desires to be employed by the Company as its
[___________________] during the term of Employment and upon the terms and
conditions of this Agreement.
AGREEMENT
The parties hereto agree as follows:
1. POSITION
The Employee hereby accepts a position of [__________________] (the
"Employment") of the Company.
2. TERM
Subject to the terms and conditions of this Agreement, the initial term of
the Employment shall be three years, commencing on [__________], 2006 (the
"Effective Date"), until [__________], 2009, unless terminated sooner
pursuant to the terms of this Agreement. Upon expiration of the initial
three-year term, the Employment shall be automatically extended for
successive one-year terms unless either party gives the other party hereto
a one-month prior written notice to terminate the Employment prior to the
expiration of such one-year term or unless terminated sooner pursuant to
the terms of this Agreement.
3. PROBATION
No probationary period.
4. DUTIES AND RESPONSIBILITIES
The Employee's duties at the Company will include all jobs assigned by the
Company's Board of the Directors (the "Board") or officers senior to the
Employee.
The Employee shall devote all of his or her working time, attention and
skills to the performance of his or her duties at the Company and shall
faithfully and diligently serve the Company in accordance with this
Agreement, the Charter Documents of the Company, and the guidelines,
policies and procedures of the Company approved from time to time by the
Board.
The Employee shall use his or her best endeavor to perform his or her
duties hereunder. The Employee shall not, without the prior written
consent of the Board, become an employee of any entity other than the
Company and any subsidiary or affiliate of the Company, and shall not be
concerned or interested in any business or entity that competes with that
carried on by the Company (any such business or entity, a "Competitor"),
provided that nothing in this clause shall preclude the Employee from
holding any shares or other securities of any Competitor that is listed on
any securities exchange or recognized securities market anywhere. The
Employee shall notify the Company in writing of his or her interest in
such shares or securities in a timely manner and with such details and
particulars as the Company may reasonably require.
5. LOCATION
The Employee will be based in [__________]. The Company reserves the right
to transfer or second the Employee to any location in [China] or elsewhere
in accordance with its operational requirements.
6. COMPENSATION AND BENEFITS
(a) Cash Compensation. The Employee's cash compensation (including
salary) shall be provided by the Company pursuant to Schedule A
hereto, subject to annual review and adjustment by the Company.
(b) Equity Incentives. To the extent the Company adopts and maintains a
share incentive plan, the Employee will be eligible for
participating in such plan pursuant to the terms thereof as
determined by the Company.
(c) Benefits. The Employee is eligible for participation in any standard
employee benefit plan of the Company that currently exists or may be
adopted by the Company in the future, including, but not limited to,
any retirement plan, life insurance plan, health insurance plan,
disability insurance plan and travel/holiday plan. If the Employee
elects, the Company shall pay the reasonable cost of membership for
the Employee, his or her spouse and dependent children not greater
than twenty-one (21) years of age, for a private patient medical
plan, with a reputable medical expense insurance scheme as the
Company shall decide from time to time.
7. TERMINATION OF THE AGREEMENT
(a) By the Company.
(i) The Company may terminate the Employment for cause, at any time,
without notice or remuneration, if (1) the Employee is convicted or
pleads guilty to a felony or to an act of fraud, misappropriation or
embezzlement, (2) the Employee has been negligent or acted
dishonestly to the detriment of the Company, or (3) the Employee has
engaged in actions amounting to misconduct or failed to perform his
or her duties hereunder and such failure continues after the
Employee is afforded a reasonable opportunity to cure such failure.
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(ii) In addition, the Company may terminate the Employment without
cause, at any time, upon three-months written notice. The Company
shall have the option, in its sole discretion, to make the
Employee's termination effective at any time prior to the end of
such notice period as long as the Company pays the Employee all
compensation to which the Employee is entitled up through the last
day of the three-months notice period.
(iii) If the Employee's employment is terminated by the Company
without cause (other than by reason of disability or death), the
Employee shall receive, within 30 days following termination, a lump
sum payment of (i) any earned but unpaid salary through the date of
termination, and (ii) any earned but unpaid bonus for any calendar
year preceding the year in which the termination occurs. In
addition, subject to the Employee having completed the probation
period, if any, and the Employee's compliance with Sections 8, 9 and
10 below, the Employee shall receive continued payments of his or
her salary: (i) for one-month following a termination effective
prior to the first anniversary of the Effective Date; (ii) for
two-months following a termination effective prior to the second
anniversary of the Effective Date; (iii) for three-months following
a termination effective prior to the third anniversary of the
Effective Date; and (iv) for four-months following a termination
effective at any time after the third anniversary of the Effective
Date. The Employee shall have no further rights to any compensation
(including any salary or bonus) or any other benefits under this
Agreement. If the Employee is terminated for cause pursuant to this
Section 7(a), he or she shall be entitled to receive only his or her
salary through the date of termination and he shall have no further
rights to any compensation (including any salary or bonus) or any
other benefits under this Agreement.
(iv) All other benefits, if any, due to the Employee following a
termination with or without cause shall be determined in accordance
with the plans, policies and practices of the Company; provided,
however, that the Employee shall not participate in any severance
plan, policy or program of the Company.
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(b) By the Employee. The Employee may terminate the Employment at any
time with a one-month prior written notice to the Company, if (1)
there is a material reduction in the Employee's authority, duties
and responsibilities, or (2) there is a material reduction in the
Employee's annual salary before the next annual salary review. In
addition, the Employee may resign prior to the expiration of the
Agreement if such resignation is approved by the Board of Directors
of the Company (the "Board") or an alternative arrangement with
respect to the Employment is agreed to by the Board. Upon a
termination by the Employee pursuant to this Section 7(b), the
Employee shall be entitled to his or her salary through the date of
such termination and he shall have no further rights to any
compensation (including any salary or bonus) or any other benefits
under this Agreement. All other benefits, if any, due to the
Employee following termination pursuant to this Section 7(b) shall
be determined in accordance with the plans, policies and practices
of the Company; provided, however, that the Employee shall not
participate in any severance plan, policy or program of the Company.
8. CONFIDENTIALITY AND NONDISCLOSURE
In the course of the Employee's services, the Employee may have access to
the Company and/or the Company's client's and/or prospective client's
trade secrets and confidential information, including but not limited to
those embodied in memoranda, manuals, letters or other documents, computer
disks, tapes or other information storage devices, hardware, or other
media or vehicles, pertaining to the Company and/or the Company's client's
and/or prospective client's business. All such trade secrets and
confidential information are considered confidential. All materials
containing any such trade secret and confidential information are the
property of the Company and/or the Company's client and/or prospective
client, and shall be returned to the Company and/or the Company's client
and/or prospective client upon expiration or earlier termination of this
Agreement. The Employee shall not directly or indirectly disclose or use
any such trade secret or confidential information, except as required in
the performance of the Employee's duties in connection with the
Employment, or pursuant to applicable law.
During and after the Employment, the Employee shall hold the Trade Secrets
in strict confidence; the Employee shall not disclose these Trade Secrets
to anyone except other employees of the Company who have a need to know
the Trade Secrets in connection with the Company's business. The Employee
shall not use the Trade Secrets other than for the benefits of the
Company.
"Trade Secrets" means information deemed confidential by the Company,
treated by the Company or which the Employee know or ought reasonably to
have known to be confidential, and trade secrets, including without
limitation designs, processes, pricing policies, methods, inventions,
conceptions, technology, technical data, financial information, corporate
structure and know-how, relating to the business and affairs of the
Company and its subsidiaries, affiliates and business associates, whether
embodied in memoranda, manuals, letters or other documents, computer
disks, tapes or other information storage devices, hardware, or other
media or vehicles. Trade Secrets do not include information generally
known or released to public domain through no fault of yours.
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This Section 8 shall survive the termination of this Agreement for any
reason. In the event the Employee breaches this Section 8, the Company
shall have right to seek remedies permissible under applicable law.
9. INVENTIONS ASSIGNMENT
The Employee understands that the Company engages in research and
development and other activities in connection with its business and that,
as an essential part of the Employment, The Employee is expected to make
new contributions to and create inventions of value for the Company.
From and after the Effective Date, the Employee shall disclose in
confidence to the Company all inventions, improvements, designs, original
works of authorship, formulas, processes, compositions of matter, computer
software programs, databases, mask works and trade secrets (collectively,
the "Inventions"), which the Employee may solely or jointly conceive or
develop or reduce to practice, or cause to be conceived or developed or
reduced to practice, during the period of the Employee's Employment at the
Company. The Employee acknowledges that copyrightable works prepared by
the Employee within the scope of and during the period of the Employee's
Employment with the Company are "works for hire" and that the Company will
be considered the author thereof. The Employee agrees that all the
Inventions shall be the sole and exclusive property of the Company and the
Employee hereby assign all his or her right, title and interest in and to
any and all of the Inventions to the Company or its successor in interest
without further consideration.
The Employee agrees to assist the Company in every proper way to obtain
for the Company and enforce patents, copyrights, mask work rights, trade
secret rights, and other legal protection for the Inventions. The Employee
will execute any documents that the Company may reasonably request for use
in obtaining or enforcing such patents, copyrights, mask work rights,
trade secrets and other legal protections. The Employee's obligations
under this paragraph will continue beyond the termination of the
Employment with the Company, provided that the Company will compensate the
Employee at a reasonable rate after such termination for time or expenses
actually spent by the Employee at the Company's request on such
assistance. The Employee appoints the Secretary of the Company as the
Employee's attorney-in-fact to execute documents on the Employee's behalf
for this purpose.
This Section 9 shall survive the termination of this Agreement for any
reason. In the event the Employee breaches this Section 9, the Company
shall have right to seek remedies permissible under applicable law.
10. NON-COMPETITION
In consideration of the salary paid to the Employee by the Company, the
Employee agrees that during the term of the Employment and for a period of
one (1) year following the termination of the Employment for whatever
reason:
(a) the Employee will not approach clients, customers or contacts of the
Company or other persons or entities introduced to the Employee in
the Employee's capacity as a representative of the Company for the
purposes of doing business
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with such persons or entities which will harm the business
relationship between the Company and such persons and/or entities;
(b) unless expressly consented to by the Company, the Employee will not
assume employment with or provide services as a director or
otherwise for any Competitor in the People's Republic of China or
such other territories where the Company carries on its business or
part thereof (the "Territory"), or engage, whether as principal,
partner, licensor or otherwise, in any Competitor that carries on
its business or part thereof in the Territory; and
(c) unless expressly consented to by the Company, the Employee will not
seek directly or indirectly, by the offer of alternative employment
or other inducement whatsoever, to solicit the services of any
employee of the Company employed as at or after the date of such
termination, or in the year preceding such termination.
For purposes of this Section 10, a "Competitor" of the Company shall not
include an entity that generates 10% or less of its revenues from solar
power products and services similar to those provided by the Company,
except that if the Employee is employed by, or provides services as a
director or otherwise to, a subsidiary or divisional business of such an
entity, such subsidiary or divisional business shall be deemed a
"Competitor" if it generates more than 10% of its revenues from solar
power products and services similar to those provided by the Company. The
provisions provided in Section 10 shall be separate and severable,
enforceable independently of each other, and independent of any other
provision of this Agreement.
The provisions contained in Section 10 are considered reasonable by the
Employee and the Company. In the event that any such provisions should be
found to be void under applicable laws but would be valid if some part
thereof was deleted or the period or area of application reduced, such
provisions shall apply with such modification as may be necessary to make
them valid and effective.
This Section 10 shall survive the termination of this Agreement for any
reason. In the event the Employee breaches this Section 10, the Company
shall have right to seek remedies permissible under applicable law.
11. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the Employee and the Company regarding the terms of the Employment and
supersedes all prior or contemporaneous oral or written agreements
concerning such subject matter. The Employee acknowledges that he or she
has not entered into this Agreement in reliance upon any representation,
warranty or undertaking which is not set forth in this Agreement. Any
amendment to this Agreement must be in writing and signed by the Employee
and the Company.
12. GOVERNING LAW; CONSENT TO JURISDICTION
This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong without regard to its conflicts of laws provisions. The
parties hereto
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irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
courts over any suit, action or proceeding arising out of or relating to
this Agreement. To the fullest extent they may effectively do so under
applicable law, the parties hereto irrevocably waive and agree not to
assert, by way of motion, as a defense or otherwise, any claim that they
are not subject to the jurisdiction of any such Hong Kong court, any
objection that they may now or hereafter have to the laying of the venue
of any such suit, action or proceeding brought in any such Hong Kong court
and any claim that any such suit, action or proceeding brought in any such
Hong Kong court has been brought in an inconvenient forum.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, this Agreement has been executed ______________, 2006.
CANADIAN SOLAR INC. EMPLOYEE
Signature: _______________________ Signature: _________________________
Name: ____________________________ Name: ______________________________
Title: ___________________________
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Schedule A
CASH COMPENSATION
AMOUNT PAY PERIOD
------------------------------------ -----------------
SALARY [US$] [ ] annually [________________]
BONUS Discretionary based on performance
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