EMPLOYMENT AGREEMENT
Exhibit 10.28
EXECUTION
COPY
This Employment Agreement (this “Agreement”) is made as of December 17, 2007, by and between
First Solar, Inc., a Delaware corporation having its principal office at 4050 East Cotton Center
Boulevard, Building 6, Suite 68, Phoenix, Arizona 85040 (hereinafter “Employer”) and Xxxx X.
Xxxxxxx (hereinafter “Employee”).
WITNESSETH:
WHEREAS, Employer and Employee wish to enter into an 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. The term of this Agreement (the “Term”) shall
commence as of January 15, 2008. As of such date, 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 Executive Vice President and General Counsel for First Solar and Employee hereby
accepts such position. Employee agrees to diligently and faithfully perform such duties as may
from time to time be assigned to Employee by Employer’s Chief Executive Officer or Employer’s Board
of Directors (the “Board”), 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 or the Change in Control Severance
Agreement between Employer and Employee dated as of the date hereof (the “Change in Control
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 set forth in Section 1.5 and Articles IV and V of this Agreement shall survive
termination of Employee’s employment and termination of this Agreement. In addition, during the
Term, Employer shall pay for all professional fees, dues and taxes, including attorney occupation
and similar taxes required to maintain Employee’s license to practice law, continuing legal
education requirements and costs of membership in professional organizations reasonably requested
by Employee for the purpose of Employee’s professional growth required to serve Employer’s needs.
Any such non-tax payments provided in any calendar year shall not affect the amount of any such
non-tax payments provided in any other calendar year, and any reimbursements for any such non-tax
payments made by Employee shall be made prior to the end of the calendar year following the
calendar year in which Employee makes the applicable payment. Any such tax payments made by the
Company shall occur prior to the end of the calendar year following the calendar year in which
Employee remits the underlying taxes to the applicable taxing authority.
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,
either physical or mental (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 (the
“Non-Competition Agreement”), the Confidentiality and Intellectual Property Agreement between
Employer and Employee (the “Confidentiality Agreement”) or the Change in Control 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 Sections 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 Pursuant to Section
1.4(e). If Employee’s employment is terminated by Employer pursuant to Section 1.4(e)
(termination without cause), then, subject to the Change in Control Agreement, Employee shall be
entitled to a lump sum cash severance payment, payable within ten (10) business days following the
Release Effective Date (as defined below) equal to the Base Salary (as hereinafter defined) in
effect as of the date of termination of employment. 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 tenth
(10th) business day prior to March 15 of the year following the year in which the termination of
employment occurs, (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 (the date such release is effective and
irrevocable, the “Release Effective Date”).
(c) Medical Insurance. If Employee’s employment is terminated by Employer pursuant
to Section 1.4(e) (termination without cause), Employer will provide or pay for Employee’s medical
insurance benefits at the same or a comparable level as provided by Employer during Employee’s
employment, for a period beginning on the date of termination 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. 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) Vesting. If Employee’s employment is terminated by Employer pursuant to Section
1.4(e) (termination without cause), (i) Employee’s stock options, restricted stock, restricted
stock units and any other equity compensation granted to Employee by Employer and subject to
vesting, other than the restricted stock units and stock options granted to Employee pursuant to
Section 2.6(b), shall continue to vest for another twelve (12) months after the effective date of
such termination and (ii) the restricted stock units and stock options granted to Employee pursuant
to Section 2.6(b) shall become fully vested and exercisable as of the effective date of such
termination. After such twelve-month period, in the case of clause (i), and after the effective
date of termination of employment, in the case of clause (ii), Employee will have a ninety (90) day
period in which to exercise any vested stock options or other equity
compensation, provided that if
during such ninety (90) day period, Employee is under any trading restriction due to a lockup
agreement or closed trading window, such ninety (90) day
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 Sign on Bonus. Subject to applicable tax withholding requirements, Employee shall
receive a Seven Million and 00/100 Dollar ($7,000,000) sign on bonus payable in twenty (20) equal
quarterly installments, commencing on March 31, 2008. Each installment shall be payable on the
last business day of the applicable calendar quarter. Any undistributed portion of the bonus shall
be forfeited if Employee’s employment terminates prior to the payment date for such portion for any
reason other than a termination by Employer pursuant to Section 1.4(e) (termination without cause).
2.2 Base Salary. Employee shall be compensated at an annual base salary of Five Hundred
Thousand and 00/100 Dollars ($500,000) (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.
2.3 Annual Bonus Eligibility. Employee shall be eligible to receive an annual bonus of up
to eighty percent (80%) 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.
2.4 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 four (4) weeks paid vacation per year, which shall be accrued in
accordance with Employer’s policies applicable to similarly situated employees of Employer.
2.5 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.
2.6 Grant of Equity.
(a) Eligibility. 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 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.
(b) Hiring Grant. Promptly following the date hereof, Employee will receive
restricted stock units valued at Seven Million and 00/100 Dollars ($7,000,000) on the date of
grant, as determined by the Board, which shall vest, contingent on continued employment, in twenty
(20) equal quarterly installments commencing on March 31, 2008, and One Hundred Thousand (100,000)
stock options, exercisable at fair market value on the date of grant, as determined by the Board,
which shall vest, contingent on continued employment, in five (5) equal annual installments
commencing on December 31, 2008, in each case subject to Section 1.5(d).
2.7 Location. Employee’s position will be based in New York, New York.
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. | |||
| 00000 Xxxxx Xxxx Xxxx | ||||
| Xxxxxxxxxx, XX 00000 | ||||
| Attention: Human Resources | ||||
| 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. Notwithstanding the foregoing, 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 (the “Successor”). As
used in this Agreement, (a) the term “Employer” shall mean Employer as hereinbefore defined and any
Successor and any permitted assignee 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 and any permitted assignee to which this Agreement is assigned. This
Agreement shall be binding upon and inure to the benefit of the parties, their successors, assigns,
heirs, executors and legal representatives.
4.6 Entire Agreement. This Agreement, the Change in Control 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. 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.
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/ Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
EMPLOYER:
First Solar, Inc.
First Solar, Inc.
By: /s/ Xxxxxxx X. Xxxxxx
Name Printed: Xxxxxxx X. Xxxxxx
Title: CEO
First Solar, Inc.
Confidential — agt v.2-07
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Confidential — agt v.2-07
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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) of its obligations under that certain Employment Agreement in which the undersigned
participates 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 and (c) from any director and
officer indemnification obligations under the Company’s by-laws. 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.
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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.
FIRST SOLAR, INC.
By
|
||||||
| Name: | ||||||
| Title: | ||||||
| EMPLOYEE: | ||||||
| [NAME] | ||||||
| Date | ||||||
| Signed: | ||||||
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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, Change in Control 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
Xxxx X. Xxxxxxx (“Employee”) and First Solar, Inc. (“Employer”) as of January 15, 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.
2
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
3
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. | |||
| 0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxx | ||||
| Building 6, Suite 68 | ||||
| Phoenix, Arizona 85040 | ||||
| Attention: Chief Executive Officer
Fax: (000) 000-0000 |
||||
| If to Employee: | ||||
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
4
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.
10. Entire
Agreement, Modification and Assignment.
10.1. This Agreement, the Employment Agreement, the Confidentiality Agreement and the Change
in Control 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.
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”.
“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: | |||
| First Solar, Inc. | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | /s/ Xxxx X. Xxxxxxx | ||
Its:
|
CEO | |||
Printed Name: Xxxxxxx X. Xxxxxx
5
First Solar, Inc.
Confidentiality and Intellectual Property Agreement
Employee: |
Xxxx X. Xxxxxxx | |||||
Place of Signing: |
||||||
| Date: , 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) 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 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”). 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;
(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;
(e) Software in various stages of development (including 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 that is generally available to the public, other than through any act or omission on my
part in breach of this Agreement.
6. I acknowledge that: (a) 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) the Company undertakes great effort and sufficient
measures to maintain the confidentiality and secrecy of such information; and (c) 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 with the Company. 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. 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. I
understand that the Company is under no obligation to employ me for any duration and that my
employment with the Company is terminable at the will of the Company or at my will at any time and
for any reason and without notice.
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
Non-Competition Agreement (as defined in the Employment Agreement) and the Change in Control
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 supersede 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 me. 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/ Xxxx X. Xxxxxxx | |
| Employee | ||
| Agreed to by First Solar, Inc. | ||
| By: /s/ Xxxxxxx X. Xxxxxx | ||
| Its: CEO | ||
