Exhibit 10.3
FORM OF EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") is made and entered into this
___ day of June, 2006 (the "Effective Date"), by and between MINDRAY MEDICAL
INTERNATIONAL LIMITED, a company incorporated and existing under the laws of the
Cayman Islands (the "Company" and, together with all of its direct or indirect
parent companies, subsidiaries, affiliates, or subsidiaries or affiliates of its
parent companies, collectively referred to as the "Company Group"), and
__________, an individual (the "Executive").
RECITALS
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A. The Company desires that the Executive be employed by the Company to
carry out the duties and responsibilities described below, all on the terms and
conditions hereinafter set forth.
B. The Executive desires to accept such employment on such terms and
conditions.
NOW, THEREFORE, in consideration of the above recitals incorporated herein
and the mutual covenants and promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
expressly acknowledged, the parties agree as follows:
1. RETENTION AND DUTIES.
1.1 RETENTION. The Company does hereby hire, engage and employ the Executive
for the Period of Employment (as defined in Section 2) on the terms and
conditions expressly set forth in this Agreement. The Executive does hereby
accept and agree to such hiring, engagement and employment, on the terms
and conditions expressly set forth in this Agreement. The Executive agrees
to commence active employment with the Company on or before ___, 2006 (the
first day of such employment is referred to as the "Employment Commencement
Date").
1.2 DUTIES. During the Period of Employment, the Executive shall serve the
Company as its ____________________ and shall have such powers, duties and
obligations consistent with such position as the Company's Chief Executive
Officer (the "CEO") shall determine from time to time. The Executive shall
be subject to such directives of the CEO and the corporate policies of the
Company as they are in effect from time to time throughout the Period of
Employment (including, without limitation, the Company's business conduct
and ethics policies, as they may change from time to time). During the
Period of Employment, the Executive shall report solely to the CEO.
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1.3 NO OTHER EMPLOYMENT; MINIMUM TIME COMMITMENT. During the Period of
Employment, the Executive shall both (i) devote substantially all of the
Executive's business time, energy and skill to the performance of the
Executive's duties for the Company, and (ii) hold no other employment. The
Executive's service on the boards of directors (or similar body) of other
business entities is subject to the approval of the Board of Directors of
the Company (the "BOARD"). The Company shall have the right to require the
Executive to resign from any board or similar body which he may then serve
if the Board reasonably determines in writing that the Executive's service
on such board or body interferes with the effective discharge of the
Executive's duties and responsibilities to the Company or that any business
related to such service is then in competition with any business of the
Company or any of its affiliates, successors or assigns.
1.4 NO BREACH OF CONTRACT. The Executive hereby represents to the Company that:
(i) the execution and delivery of this Agreement by the Executive and the
Company and the performance by the Executive of the Executive's duties
hereunder shall not constitute a breach of, or otherwise contravene, the
terms of any other agreement or policy to which the Executive is a party or
otherwise bound; (ii) that the Executive has no information (including,
without limitation, confidential information and trade secrets) relating to
any other person or entity which would prevent, or be violated by, the
Executive entering into this Agreement or carrying out his duties
hereunder; (iii) that the Executive is not bound by any confidentiality,
trade secret or similar agreement (other than this Agreement) with any
other person or entity.
1.5 LOCATION. The Executive acknowledges that the Company's principal executive
offices are currently located in Shenzhen, the People's Republic of China.
The Executive's principal place of employment shall be the Company's
principal executive offices. The Executive agrees that he will be regularly
present at the Company's principal executive offices. The Executive
acknowledges that he may be required to travel from time to time in the
course of performing his duties for the Company.
2. PERIOD OF EMPLOYMENT. The "Period of Employment" shall be a period of three
(3) years commencing on the Employment Commencement Date and ending at the
close of business on the third (3rd) anniversary of the Employment
Commencement Date (the "Termination Date"); provided, however, that this
Agreement shall be automatically renewed, and the Period of Employment
shall be automatically extended for one (1) additional year on the
Termination Date and each anniversary of the Termination Date thereafter,
unless either party gives notice, in writing, at least thirty (30) days
prior to the expiration of this Agreement and the Period of Employment
(including any renewal thereof) of such party's desire to terminate the
Agreement or modify its terms. The term "Period of Employment" shall
include any extension thereof pursuant to the preceding sentence. Provision
of notice that the Period of Employment shall not be extended or further
extended, as the case may be, shall not constitute a breach of this
Agreement and shall not constitute "Constructive Termination" for purposes
of this Agreement. Notwithstanding the foregoing, the Period of Employment
is subject to earlier termination as provided below in this Agreement.
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3. COMPENSATION.
3.1 BASE SALARY. The Executive's base salary (the "Base Salary") during the
Period of Employment shall be paid in accordance with the Company's regular
payroll practices in effect from time to time, but not less frequently than
in monthly installments. The Executive's Base Salary for the first twelve
(12) months of the Period of Employment shall be at an annualized rate of
____________________. The Company will review the Executive's Base Salary
at least annually. The Company will set the Executive's rate of Base Salary
for any portion of the Period of Employment after the first twelve (12)
months thereof.
3.2 INCENTIVE BONUS. During the Period of Employment, the Executive shall be
eligible to receive periodic incentive bonuses under any incentive program
applicable to executive officers of the Company and approved by the Board
(the "Incentive Bonus").
4. BENEFITS.
4.1 RETIREMENT, WELFARE AND FRINGE BENEFITS. During the Period of Employment,
the Executive shall be entitled to participate in all employee pension and
welfare benefit plans and programs, and fringe benefit plans and programs,
made available by the Company to the Company's employees generally, in
accordance with the eligibility and participation provisions of such plans
and as such plans or programs may be in effect from time to time.
4.2 REIMBURSEMENT OF BUSINESS EXPENSES. The Executive is authorized to incur
reasonable expenses in carrying out the Executive's duties for the Company
under this Agreement and reimbursement for all reasonable business expenses
the Executive incurs during the Period of Employment in connection with
carrying out the Executive's duties for the Company, subject to the
Company's expense reimbursement policies in effect from time to time.
4.3 VACATION AND OTHER LEAVE. During the Period of Employment, the Executive
shall accrue and be entitled to take paid vacation in accordance with the
Company's vacation policies in effect from time to time, including the
Company's policies regarding vacation accruals; provided that the
Executive's rate of vacation accrual during the Period of Employment shall
be no less than four (4) weeks per year. The Executive shall also be
entitled to all other holiday and leave pay generally available to other
executives of the Company.
5. TERMINATION.
5.1 TERMINATION BY THE COMPANY. The Executive's employment by the Company, and
the Period of Employment, may be terminated at any time by the Company: (i)
with Cause (as defined in Section 5.5), or (ii) with no less than thirty
(30) days advance notice to the Executive, without Cause, or (iii) in the
event of the Executive's death, or (iv) in the event that the Board
determines in good faith that the Executive has a Disability (as defined in
Section 5.5).
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5.2 TERMINATION BY THE EXECUTIVE. The Executive's employment by the Company,
and the Period of Employment, may be terminated by the Executive with no
less than thirty (30) days advance notice to the Company; provided,
however, that in the case of a Constructive Termination (as defined
herein), the Executive may provide immediate written notice if the Company
fails to, or cannot, reasonably cure the event that gives rise to the
Constructive Termination.
5.3 BENEFITS UPON TERMINATION. If the Executive's employment by the Company is
terminated during the Period of Employment for any reason by the Company or
by the Executive, or upon or following the expiration of the Period of
Employment (in any case, the date that the Executive's employment by the
Company terminates is referred to as the "Severance Date"), the Company
shall have no further obligation to make or provide to the Executive, and
the Executive shall have no further right to receive or obtain from the
Company, any payments or benefits except as follows:
(a) The Company shall pay the Executive (or, in the event of his death, the
Executive's estate) any Accrued Obligations (as defined in Section 5.5);
(b) If, during the Period of Employment, the Executive's employment with
the Company terminates as a result of an Involuntary Termination (as
defined in Section 5.5), the Executive shall be entitled to the following
benefits:
(i) The Company shall pay the Executive (in addition to the
Accrued Obligations), subject to tax withholding and other authorized
deductions, an amount equal to one hundred percent (100%) of the
Executive's annualized Base Salary (as in effect immediately prior to
the termination of the Executive's employment). Such amount is
referred to hereinafter as the "Severance Benefit." The Company shall
pay the Severance Benefit to the Executive in equal installments on a
bi-weekly basis over a period of twelve (12) months following the
Severance Date (the "Severance Period").
(ii) During the Severance Period, the Company shall continue to
make available to the Executive and the Executive's spouse and
dependents covered under any group health plans or life insurance
plans of the Company on the Severance Date, all group health, life and
other similar insurance plans in which Executive or such spouse or
dependents participate on the Severance Date at the same cost to the
Executive as the Executive paid for such benefits prior to such date.
To the extent that the Company cannot continue to provide such
benefits, it will pay the Executive an amount that would be sufficient
to enable the Executive to purchase substantially the same level of
such benefits from a third party at the same cost to the Executive as
the Executive paid for such benefits immediately prior to the
Severance Date.
(c) If a Change of Control (as defined herein) occurs at any time during
the Period of Employment, the vesting of each outstanding option,
restricted stock award or other stock-based award granted by the Company to
the Executive shall be automatically
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accelerated so that such award shall be vested in full as of the date of
such Change of Control.
Notwithstanding the foregoing provisions of this Section 5.3, if the
Executive breaches his obligations under Section 6 of this Agreement at any
time, from and after the date of such breach, (i) the Executive will no
longer be entitled to, and the Company will no longer be obligated to pay,
any remaining unpaid portion of the Severance Benefit, and (ii) the
Executive will no longer be entitled to, and the Company will no longer be
obligated to make available to Executive or Executive's spouse or
dependents any group health, life or other similar insurance plans or any
payment in respect of such plans.
The foregoing provisions of this Section 5.3 shall not affect: (i) the
Executive's receipt of benefits otherwise due terminated employees
consistent with the terms of the applicable Company welfare benefit plan or
applicable law.
5.4 EXCLUSIVE REMEDY. The Executive agrees that the payments contemplated by
Section 5.3 (and any applicable acceleration of vesting of an equity-based
award in accordance with the terms of such award in connection with the
termination of the Executive's employment) shall constitute the exclusive
and sole remedy for any termination of his employment and the Executive
covenants not to assert or pursue any other remedies, at law or in equity,
with respect to any termination of employment. The Company and Executive
acknowledge and agree that there is no duty of the Executive to mitigate
damages under this Agreement. All amounts paid to the Executive pursuant to
Section 5.3 shall be paid without regard to whether the Executive has taken
or takes actions to mitigate damages.
5.5 CERTAIN DEFINED TERMS.
(a) As used herein, "Accrued Obligations" means:
(i) any Base Salary that had accrued but had not been paid
(including accrued and unpaid vacation time) on or before the
Severance Date; and
(ii) any Incentive Bonus payable pursuant to Section 3.2 with
respect to any fiscal year in the Period of Employment preceding the
year in which the Severance Date occurs to the extent earned by but
not previously paid to the Executive; and
(iii) any reimbursement due to the Executive pursuant to Section
4.2 for expenses incurred by the Executive on or before the Severance
Date.
(b) As used herein, "Cause" shall mean, as reasonably determined by the
Board (excluding the Executive, if he is then a member of the Board), (i)
any act of personal dishonesty taken by the Executive in connection with
his responsibilities as an employee of the Company which is intended to
result in substantial personal enrichment of the Executive and is
reasonably likely to result in material harm to the Company, (ii) the
Executive's conviction of a crime which the Board reasonably believes has
had or will have a material detrimental effect on the Company's reputation
or business, (iii) a willful
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act by the Executive which constitutes misconduct and is materially
injurious to the Company, or (iv) continued violations by the Executive of
the Executive's obligations to the Company after there has been delivered
to the Executive a written demand for performance from the Company which
describes the basis for the Company's belief that the Executive has
violated his obligations to the Company.
(c) As used herein, "Change of Control" shall mean the first to occur of
any of the following events after the Employment Commencement Date:
(i) Approval by stockholders of the Company (or, if no
stockholder approval is required, by the Board alone) of the complete
dissolution or liquidation of the Company, other than in the context
of a Business Combination that does not constitute a Change in Control
Event under paragraph (iii) below;
(ii) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the United States
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
referred to herein as a "Person") of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 50% or
more of either (1) the then-outstanding shares of common stock of the
Company (the "Outstanding Company Common Stock") or (2) the combined
voting power of the then-outstanding voting securities of the Company
entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); provided, however, that, for
purposes of this paragraph (ii), the following acquisitions shall not
constitute a Change in Control Event; (A) any acquisition directly
from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or its affiliates or a successor, (D) any
acquisition by any entity pursuant to a Business Combination (as
defined herein), (E) any acquisition by a Person described in and
satisfying the conditions of Rule 13d-1(b) promulgated under the
Exchange Act, or (F) any acquisition by a Person who is the beneficial
owner (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of 50% or more of the Outstanding Company Common Stock and/or the
Outstanding Company Voting Securities on the Effective Date (or an
affiliate, heir, descendant, or related party of or to such Person);
or
(iii) Consummation of a reorganization, merger, statutory share
exchange or consolidation or similar corporate transaction involving
the Company or any corporation or other entity a majority of whose
outstanding voting stock or voting power is beneficially owned
directly or indirectly by the Company (a "Subsidiary"), a sale or
other disposition of all or substantially all of the assets of the
Company, or the acquisition of assets or stock of another entity by
the Company or any of its Subsidiaries (each, a "Business
Combination"), in each case unless, following such Business
Combination, (1) all or substantially all of the individuals and
entities that were the beneficial owners of the Outstanding Company
Common Stock and the Outstanding Company Voting Securities immediately
prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of the then-outstanding shares of common
stock and
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the combined voting power of the then-outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the entity resulting from such Business Combination
(including, without limitation, an entity that, as a result of such
transaction, owns the Company or all or substantially all of the
Company's assets directly or through one or more subsidiaries), and
(2) no Person (excluding any individual or entity described in clauses
(C), (E) or (F) of paragraph (ii) above) beneficially owns (within the
meaning of Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, more than 50% of, respectively, the then-outstanding
shares of common stock of the entity resulting from such Business
Combination or the combined voting power of the then-outstanding
voting securities of such entity, except to the extent that the
ownership in excess of 50% existed prior to the Business Combination;
provided, however, that a transaction shall not constitute a Change of
Control if it is in connection with the underwritten public offering of the
securities of the Company.
(d) As used herein, "Constructive Termination" shall mean a resignation by
the Executive within thirty (30) days after the occurrence of any of the
following: (i) without the Executive's express written consent, a material
reduction of the Executive's duties, position or responsibilities relative
to the Executive's duties, position or responsibilities in effect
immediately prior to such reduction, or the removal of the Executive from
such duties, position and responsibilities, unless the Executive is
provided with substantially comparable duties, position and
responsibilities; (ii) without the Executive's express written consent, a
material reduction of the facilities and perquisites (including without
limitation office space, location and administrative support) available to
the Executive immediately prior to such reduction; (iii) a reduction by the
Company of the Executive's Base Salary or Incentive Bonus opportunity as in
effect immediately prior to such reduction; (iv) a material reduction by
the Company in the kind or level of employee benefits to which the
Executive is entitled immediately prior to such reduction with the result
that the Executive's overall benefits package is materially reduced; or (v)
without the Executive's express written consent, the relocation of the
Executive to a facility or a location more than fifty (50) miles from his
current location.
(e) As used herein, "Disability" shall mean a physical or mental impairment
which, as reasonably determined by the Board, renders the Executive unable
to perform the essential functions of his employment with the Company, even
with reasonable accommodation that does not impose an undue hardship on the
Company, for more than 180 days in any 12-month period, unless a longer
period is required by applicable law, in which case that longer period
would apply.
(f) As used herein, "Involuntary Termination" shall mean a Constructive
Termination or a termination of the Executive by the Company without Cause.
For purposes of clarity, the term Involuntary Termination does not include
a termination of the Executive's employment due to the Executive's death or
Disability.
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5.6. NOTICE OF TERMINATION. Any termination of the Executive's employment under
this Agreement shall be communicated by written notice of termination from
the terminating party to the other party. The notice of termination shall
indicate the specific provision(s) of this Agreement relied upon in
effecting the termination.
6. CONFIDENTIALITY; INVENTIONS; NON-COMPETITION; NON-SOLICITATION.
6.1 CONFIDENTIAL INFORMATION.
(a) Company Information. The Executive hereby agrees at all times during
the term of his or her employment and after termination, to hold in the
strictest confidence, and not to use, except for the benefit of the Company
Group, or to disclose to any person, corporation or other entity without
written consent of the Company, any Confidential Information. The Executive
understands that "Confidential Information" means any proprietary or
confidential information of the Company Group, its affiliates, their
clients, customers or partners, and the Company Group's licensors,
including, without limitation, technical data, trade secrets, research and
development information, product plans, services, customer lists and
customers (including, but not limited to, customers of the Company Group on
whom the Executive called or with whom the Executive became acquainted
during the term of his or her employment), supplier lists and suppliers,
software, developments, inventions, processes, formulas, technology,
designs, drawings, engineering, hardware configuration information,
personnel information, marketing, finances, information about the
suppliers, joint ventures, licensors, licensees, distributors and other
persons with whom the Company Group does business, information regarding
the skills and compensation of other employees of the Company Group or
other business information disclosed to the Executive by or obtained by the
Executive from the Company Group, its affiliates, or their clients,
customers or partners either directly or indirectly in writing, orally or
by drawings or observation of parts or equipment.
(b) Company Property. The Executive understands that all documents
(including computer records, facsimile and e-mail) and materials created,
received or transmitted in connection with his or her work or using the
facilities of the Company Group are property of the Company Group and
subject to inspection by the Company Group, at any time. Upon termination
of the Executive's employment with the Company (or at any other time when
requested by the Company), the Executive will promptly deliver to the
Company all documents and materials of any nature pertaining to his or her
work with the Company and will provide written certification of his or her
compliance with this Agreement. Under no circumstances will the Executive
have, following his or her termination, in his or her possession any
property of the Company Group, or any documents or materials or copies
thereof containing any Confidential Information. In the event of the
termination of the Executive's employment, the Executive hereby agrees to
sign and deliver the "Termination Certification" attached hereto as Exhibit
A.
(c) Former Employer Information. The Executive hereby agrees that he or she
will not, during his or her employment with the Company, improperly use or
disclose any proprietary information or trade secrets of any former
employer or other person or entity and that he or she will not bring onto
the premises of the Company Group any
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unpublished document or proprietary information belonging to any such
employer, person or entity unless consented to in writing by such employer,
person or entity. The Executive hereby agrees to indemnify the Company
Group and hold it harmless from all claims, liabilities, damages and
expenses, including reasonable attorneys fees and costs for resolving
disputes, arising out of or in connection with any violation or claimed
violation of a third party's rights resulting from any use by the Company
Group of such proprietary information or trade secrets improperly used or
disclosed by the Executive.
(d) Third Party Information. The Executive recognizes that the Company
Group has received and in the future will receive from third parties their
confidential or proprietary information subject to a duty on the Company
Group's part to maintain the confidentiality of such information and to use
it only for certain limited purposes. The Executive hereby agrees to hold
all such confidential or proprietary information in the strictest
confidence and not to disclose it to any person, firm or corporation or to
use it except as necessary in carrying out his or her work for the Company
consistent with the Company Group's agreement with such third party.
6.2 INVENTIONS.
(a) Inventions Retained and Licensed. The Executive has attached hereto, as
Exhibit B, a list describing all inventions, original works of authorship,
developments, improvements, trade secrets, and IC layout designs/mask works
which were made by the Executive prior to his or her employment with the
Company which belong to the Executive, which relate to the Company Group's
proposed or current business, products or research and development, and
which are not assigned to any member of the Company Group hereunder
(collectively referred to as "Prior Inventions"); or, if no such list is
attached, The Executive hereby represents that there are no such Prior
Inventions. The Executive hereby agrees that he or she will not incorporate
any Prior Inventions into any products, processes or machines of the
Company Group; provided, however, that if in the course of the Executive's
employment with the Company, he or she incorporates into a product, process
or machine of the Company Group a Prior Invention owned by the Executive or
in which he or she has an interest, the Executive hereby represents that he
or she has all necessary rights, powers and authorization to use such Prior
Invention in the manner it is used and such use will not infringe any right
of any company, entity or person and, in such a circumstance, each member
of the Company Group is hereby granted and shall have a nonexclusive,
royalty-free, sublicensable, transferable, irrevocable, perpetual,
worldwide license to make, have made, modify, use and sell such Prior
Invention as part of or in connection with such product, process or
machine. The Executive hereby agrees to indemnify the Company Group and
hold it harmless from all claims, liabilities, damages and expenses,
including reasonable attorneys fees and costs for resolving disputes,
arising out of or in connection with any violation or claimed violation of
a third party's rights resulting from any use, sublicensing, modification,
transfer, or sale by the Company Group of such Prior Invention.
(b) Assignment of Inventions. The Executive hereby agrees that he or she
will promptly make full written disclosure to the Company and the Company
Group, will hold in trust for the sole right and benefit of the Company and
the Company Group, and
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hereby assign to the Company and the Company Group, or their respective
designee, all of his or her right, title, and interest in and to any and
all inventions, ideas, information, designs, original works of authorship,
processes, formulas, computer software programs, databases, mask works,
developments, concepts, improvements or trade secrets, whether or not
patentable or registrable under patent, copyright, circuit layout design or
similar laws in China or anywhere else in the world, which he or she 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 time he
or she is in the employ of the Company (whether or not during business
hours) that are either related to the scope of his or her employment with
the Company or make use, in any manner, of the resources of the Company
Group (collectively referred to as "Inventions"). The Executive hereby
acknowledges that the Company or the Company Group shall be the sole owner
of all rights, title and interest in the Inventions created hereunder. In
the event the foregoing assignment of Inventions to the Company or the
Company Group is ineffective for any reason, each member of the Company
Group is hereby granted and shall have a royalty-free, sublicensable,
transferable, irrevocable, perpetual, worldwide license to make, have made,
modify, use, and sell such Inventions as part of or in connection with any
product, process or machine. Such exclusive license shall continue in
effect for the maximum term as may now or hereafter be permissible under
applicable law. Upon expiration, such license, without further consent or
action on the Executive's part, shall automatically be renewed for the
maximum term as is then permissible under applicable law, unless, within
the six-month period prior to such expiration, the Company and the
Executive have agreed that such license will not be renewed. The Executive
also hereby forever waives and agrees never to assert any and all rights he
or she may have in or with respect to any Inventions even after termination
of his or her employment with the Company. The Executive hereby further
acknowledges that all Inventions created by him or her (solely or jointly
with others) are, to the extent permitted by applicable law, "works made
for hire" or "inventions made for hire," as those terms are defined in the
People's Republic of China ("PRC") Copyright Law, the PRC Patent Law and
the Regulations on Computer Software Protection, respectively, and all
titles, rights and interests in or to such Inventions are or shall be
vested in the Company.
(c) Remuneration. The Executive hereby agrees that the remuneration
received by the Executive pursuant to this Agreement with the Company
includes any bonuses or remuneration which the Executive may be entitled to
under applicable PRC law for any "works made for hire," "inventions made
for hire" or other Inventions assigned to the Company pursuant to this
Agreement.
(d) Maintenance of Records. The Executive hereby agrees to keep and
maintain adequate and current written records of all Inventions. The
records will be in the form of notes, sketches, drawings, and any other
format that may be specified by the Company. The records will be available
to and remain the sole property of the Company at all times.
(e) Patent and Copyright Registrations. The Executive hereby agrees to
assist the Company, or its respective designees, at the expense of the
Company, in every proper way to secure the Company's rights in the
Inventions in any and all countries, to further evidence, record and
perfect any grant or assignment by the Executive of the Inventions
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hereunder and to perfect, obtain, maintain, enforce and defend any rights
so granted or assigned, including the disclosure to the Company of all
pertinent information and data with respect thereto, the execution of all
applications, specifications, oaths, assignments and all other instruments
which the Company shall deem necessary in order to apply for and obtain
such rights and in order to assign and convey to the Company, its
successors, assigns and nominees the sole and exclusive rights, title and
interest in and to such Inventions. The Executive hereby further agrees
that his or her obligations to execute or cause to be executed, when it is
in his or her power to do so, any such instrument or papers shall continue
after the termination of this Agreement. The Executive hereby irrevocably
designates and appoints the Company and its duly authorized officers and
agents as the Executive's agent and attorney in fact, to act for and in the
Executive's behalf and stead to execute and file any such documents and to
do all other lawfully permitted acts to further the foregoing with the same
legal force and effect as if executed by the Executive.
6.3 CONFLICTING EMPLOYMENT. The Executive hereby agrees that, during the term
of his or her employment with the Company, he or she will not engage in any
other employment, occupation, consulting or other business activity related
to the business in which the Company Group is now involved or becomes
involved during the term of the Executive's employment, nor will the
Executive engage in any other activities that conflict with his or her
obligations to the Company without the prior written consent of the
Company.
6.4 NON-COMPETITION.
(a) The Executive hereby agrees that during the course of his or her
employment and for a period of two (2) years immediately following the
termination of his or her relationship with the Company for any reason,
whether with or without good cause or for any or no cause, at the option
either of the Company or his or herself, with or without notice, the
Executive will not, without the prior written consent of the Company, (i)
serve as a partner, employee, consultant, officer, director, manager,
agent, associate, investor, or otherwise for, or lend his or her name (or
any part, variant or formative thereof), (ii) directly or indirectly, own,
purchase, organize or take preparatory steps for the organization of, (iii)
build, design, finance, acquire, lease, operate, manage, invest in, work or
consult for or otherwise affiliate himself or herself with, any business,
in competition with or otherwise similar to the business of the Company
Group, (iv) deal, directly or indirectly, in a competitive manner with any
customers doing business with the Company Group, or (v) transfer, sell,
assign, pledge, hypothecate, give, create a security interest in or lien
on, place in trust (voting or otherwise), or in any other way dispose of
any equity interest in the Company Group beneficially owned by the
Executive, as the case may be, to any person which is competitive with any
significant aspect of the business of the Company Group. The foregoing
covenant shall cover the Executive's activities in every part of the
Territory in which he or she may conduct business during the term of such
covenant as set forth above. "Territory" shall mean (i) the People's
Republic of China (including Hong Kong), (ii) Taiwan, (iii) the United
States of America, and (iv) all other countries of the world; provided
that, with respect to clauses (iii) and (iv) of this Section 6.4(a), the
Company derives at least five percent (5%)
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of its gross revenues from such geographic area prior to the date of the
termination of the Executive's relationship with the Company.
(b) The Executive hereby acknowledges that he or she will derive
significant value from the Company's agreement to provide him or her with
that Confidential Information of the Company Group to enable him or her to
optimize the performance of his or her duties for the Company. The
Executive hereby further acknowledges that his or her fulfillment of the
obligations contained in this Agreement, including, but not limited to, his
or her obligation neither to disclose nor to use the Confidential
Information of the Company Group other than for the Company Group's
exclusive benefit and his or her obligation not to compete contained in
subsection (a) above, is necessary to protect the Confidential Information
of the Company Group and, consequently, to preserve the value and goodwill
of the Company Group. The Executive hereby further acknowledges the time,
geographic and scope limitations of his or her obligations under subsection
(a) above are reasonable, especially in light of the Company Group's desire
to protect their Confidential Information, and that the Executive will not
be precluded from gainful employment if he or she is obligated not to
compete with the Company Group during the period and within the Territory
as described above.
(c) The covenants contained in subsection (a) above shall be construed as a
series of separate covenants, one for each city, county and state of any
geographic area in the Territory. Except for geographic coverage, each such
separate covenant shall be deemed identical in terms to the covenant
contained in subsection (a) above. If, in any arbitration proceeding, the
arbitration panel refuses to enforce any of such separate covenants (or any
part thereof), then such unenforceable covenant (or such part) shall be
eliminated from this agreement to the extent necessary to permit the
remaining separate covenants (or portions thereof) to be enforced. In the
event the provisions of subsection (a) above are deemed to exceed the time,
geographic or scope limitations permitted by applicable law, then such
provisions shall be reformed to the maximum time, geographic or scope
limitations, as the case may be, then permitted by such law.
(d) The Executive hereby further agrees that he or she will be compensated
by the Company in the total amount equal to the greater of (i) one month's
salary or (ii) the minimum amount of compensation required by applicable
law (hereinafter referred to as the "Compensation") upon the termination of
his or her employment with the Company for the covenants that the Executive
makes in this Section 6.4. The Compensation will be paid by four
installments, of which the first installment equal to 1/4 of the total
amount of the Compensation will be paid within three months after the
employment is terminated and each of the other three installments equal to
1/4 of the total amount of the Compensation will be paid per three months
thereafter.
6.5 NOTIFICATION OF NEW EMPLOYER. In the event that the Executive leaves the
employ of the Company, The Executive hereby grants consent to notification
by the Company to his or her new employer about his or her rights and
obligations under this Agreement.
6.6 NON-SOLICITATION. The Executive hereby agrees that for a period of two (2)
years immediately following the termination of his or her relationship with
the Company for
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any reason, whether with or without cause, he or she shall not either
directly or indirectly solicit, induce, recruit or encourage any employees
of the Company Group to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company Group and/or any suppliers, customers or
consultants of the Company Group, either for his or herself or for any
other person or entity.
6.7 REPRESENTATIONS. The Executive hereby agrees to execute any proper oath or
verify any proper document required to carry out the terms of this
Agreement. The Executive hereby represents that the Executive's performance
of all the terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by the Executive in confidence
or in trust prior to his or her employment by the Company. The Executive
has not entered into, and hereby agrees that he or she will not enter into,
any oral or written agreement in conflict with this Section 6.
7. WITHHOLDING TAXES. Notwithstanding anything else herein to the contrary,
the Company may withhold (or cause there to be withheld, as the case may
be) from any amounts otherwise due or payable under or pursuant to this
Agreement such national, provincial, local or any other income, employment,
or other taxes as may be required to be withheld pursuant to any applicable
law or regulation.
8. ASSIGNMENT. This Agreement is personal in its nature and neither of the
parties hereto shall, without the consent of the other, assign or transfer
this Agreement or any rights or obligations hereunder; provided, however,
that in the event of a merger, consolidation, or transfer or sale of all or
substantially all of the assets of the Company with or to any other
individual(s) or entity, this Agreement shall, subject to the provisions
hereof, be binding upon and inure to the benefit of such successor and such
successor shall discharge and perform all the promises, covenants, duties,
and obligations of the Company hereunder.
9. NUMBER AND GENDER. Where the context requires, the singular shall include
the plural, the plural shall include the singular, and any gender shall
include all other genders.
10. SECTION HEADINGS. The section headings of, and titles of paragraphs and
subparagraphs contained in, this Agreement are for the purpose of
convenience only, and they neither form a part of this Agreement nor are
they to be used in the construction or interpretation thereof.
11. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the domestic laws of the State of New York without giving
effect to any choice or conflict of law provision or rule that would cause
the application of the laws of any jurisdiction other than the State of New
York, and each of the parties hereto hereby irrevocably submits to the
nonexclusive jurisdiction of the courts of Hong Kong for purposes of all
legal proceedings arising out of or relating to the Agreement or the
transactions contemplated hereby.
12. SEVERABILITY. If any provision of this Agreement or the application thereof
is held invalid, the invalidity shall not affect other provisions or
applications of this Agreement
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which can be given effect without the invalid provisions or applications
and to this end the provisions of this Agreement are declared to be
severable.
13. ENTIRE AGREEMENT. This Agreement embodies the entire agreement of the
parties hereto respecting the matters within its scope. This Agreement
supersedes all prior and contemporaneous agreements of the parties hereto
that directly or indirectly bears upon the subject matter hereof
(including, without limitation, any offer letter or previous employment
agreement). Any prior negotiations, correspondence, agreements, proposals
or understandings relating to the subject matter hereof shall be deemed to
have been merged into this Agreement, and to the extent inconsistent
herewith, such negotiations, correspondence, agreements, proposals, or
understandings shall be deemed to be of no force or effect. There are no
representations, warranties, or agreements, whether express or implied, or
oral or written, with respect to the subject matter hereof, except as
expressly set forth herein.
14. MODIFICATIONS. This Agreement may not be amended, modified or changed (in
whole or in part), except by a formal, definitive written agreement
expressly referring to this Agreement, which agreement is executed by both
of the parties hereto.
15. WAIVER. Neither the failure nor any delay on the part of a party to
exercise any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege, nor shall
any waiver of any right, remedy, power or privilege with respect to any
occurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence. No waiver shall be
effective unless it is in writing and is signed by the party asserted to
have granted such waiver.
16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
17. NOTICES.
(a) All notices, requests, demands and other communications required or
permitted under this Agreement shall be in writing and shall be deemed to
have been duly given and made if (i) delivered by hand, (ii) otherwise
delivered against receipt therefor, or (iii) sent by internationally
recognized courier with next-day or second-day delivery. Any notice shall
be duly addressed to the parties as follows:
(i) if to the Company:
Mindray Building
Keji 12th Road South, Hi-tech Industrial Park,
Nanshan, Shenzhen 518057, P.R.China,
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(ii) if to the Executive:
Mindray Building
Keji 12th Road South, Hi-tech Industrial Park,
Nanshan, Shenzhen 518057, P.R.China,
(b) Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with
the provisions of this Section 17 for the giving of notice. Any
communication shall be effective when delivered by hand, when otherwise
delivered against receipt therefor, or three (3) business days after being
sent in accordance with the foregoing.
18. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which shall be deemed an original as against any party whose
signature appears thereon, and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when one or
more counterparts hereof, individually or taken together, shall bear the
signatures of all of the parties reflected hereon as the signatories.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
19. LEGAL COUNSEL; MUTUAL DRAFTING. Each party recognizes that this is a
legally binding contract and acknowledges and agrees that they have had the
opportunity to consult with legal counsel of their choice. Each party has
cooperated in the drafting, negotiation and preparation of this Agreement.
Hence, in any construction to be made of this Agreement, the same shall not
be construed against either party on the basis of that party being the
drafter of such language. The Executive agrees and acknowledges that he has
read and understands this Agreement, is entering into it freely and
voluntarily, and has been advised to seek counsel prior to entering into
this Agreement and has had ample opportunity to do so.
The remainder of this page has intentionally been left blank.
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IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the Effective Date.
"COMPANY"
Mindray Medical International Limited
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
"EXECUTIVE"
--------------------------------------------
Name:
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EXHIBIT A
TERMINATION CERTIFICATE
This is to certify that I do not have in my possession, nor have I failed
to return, any Confidential Information belonging to MINDRAY MEDICAL
INTERNATIONAL LIMITED (the "Company"), its subsidiaries, parent companies,
affiliates, successors or assigns (together, the "Company Group"). For purposes
of this Termination Certificate, the term "Confidential Information" shall have
the meaning assigned thereto in my Employment Agreement with the Company, dated
on or about __, 2006 (the "AGREEMENT").
I further certify that I have complied with all the terms of the Agreement
signed by me, including all of the provisions of Section 6 of the Agreement.
I further agree that, in compliance with the Agreement, I will preserve as
confidential all Confidential Information.
I further agree that for two (2) years from this date, I will not either
directly or indirectly solicit, induce, recruit or encourage any employees of
the Company or the Company Group to leave their employment, or take away such
employees, or attempt to solicit, induce, recruit, encourage or take away
employees of the Company or the Company Group and/or any suppliers, customers or
consultants of the Company or the Company Group, either for myself or for any
other person or entity.
Date:
-----------------------------
-------------------------------------
Name:
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EXHIBIT B
LIST OF PRIOR INVENTIONS
Identifying Number
Title Date or Brief Description
---------------------- ---------------------- --------------------------
--------------------------------------------------------------------------------
______ No inventions or improvements
______ Additional Sheets Attached
Signature of Employee: ________________
Print Name of Employee: _______________
Date: ____________
--------------------------------------------------------------------------------
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