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EXHIBIT 10.26
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT is made and effective as of the twenty-first
day of July, 1998, by and between Diodes Incorporated, a Delaware corporation
(the "Company"), and J.Y. Xing (the "Consultant"), with respect to the following
facts:
A. The Company desires to be assured of the continued association and
services of the Consultant in order to take advantage of her experience,
knowledge and abilities in the Company's business, and is willing to retain the
Consultant, and the Consultant desires to be so retained, on the terms and
conditions set forth in this Agreement.
B. The Consultant from time to time in the course of her relationship with
the Company may learn trade secrets and other confidential information
concerning the Company, and the Company desires to safeguard such trade secrets
and confidential information against unauthorized use and disclosure.
ACCORDINGLY, on the basis of the representations, warranties and
covenants contained herein, the parties hereto agree as follows:
1. CONSULTING SERVICES
1.1 Retention. The Company hereby retains the Consultant as a
consultant, and the Consultant hereby accepts such appointment, on the terms and
conditions set forth below, to perform during the term of this Agreement such
services as are required hereunder.
1.2 Duties. The Consultant shall render such services to the
Company, and shall perform such duties and acts, as reasonably may be requested
by the Company in connection with maintaining the relationship of Shanghai
KaiHong Electronics Co., Ltd., a joint venture in which the Company has a
principal interest, with all national, provincial and local governmental
agencies in the People's Republic of China.
1.3 Performance of Duties. The Consultant shall devote such time,
ability and attention to the Company's business as may be necessary for her to
discharge her duties hereunder in a professional and businesslike manner.
1.4 Relationship. The Consultant shall be an independent
contractor of the Company. Nothing in this Agreement shall be construed to give
the Consultant any rights as an employee, agent, partner or joint venturer of
the Company or to entitle the Consultant to control in any manner the business
of the Company or to incur any debt, liability or obligation on behalf of the
Company.
1.5 Products. The Consultant hereby acknowledges and agrees that
the results, proceeds and products of the consulting services rendered by the
Consultant hereunder are, and will be created by the Consultant as, a "work for
hire" specifically ordered or commissioned by the Company and, accordingly, are
the exclusive and valuable property of the Company. The Company shall have the
exclusive right to use, refrain from using, change, modify, add to, subtract
from, exploit or otherwise turn to account any such results, proceeds or
products in such manner and in any and all media, whether now known or hereafter
devised, throughout the universe, in perpetuity, as the Company in its sole
discretion shall determine. The Consultant hereby waives any and all so-called
"moral rights" of authors in connection with any such results, proceeds or
products. To the extent that any of such results, proceeds or products shall not
be deemed to be a work for hire, the Consultant hereby assigns to the Company,
and authorizes the Company to exploit in its sole discretion, perpetually,
exclusively and throughout the universe her entire right, title and interest in
and to the same.
1.6 Prior Services. From time to time after January 1, 1998, the
Consultant has rendered certain services to the Company. As the total
consideration for such services, the Company shall pay to the Consultant U.S.
$120,000, receipt of which hereby is acknowledged by the Consultant.
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2. COMPENSATION
2.1 Compensation. As the total consideration for the services
which the Consultant renders hereunder, the Consultant shall be entitled to the
following:
(i) a monthly consulting fee in the amount of U.S. $15,000
payable in advance on the first day of each month, commencing on September 1,
1998 and ending on December 1, 1999;
(ii) reimbursement of any and all reasonable and documented
expenses (including, but not limited to, air fare, car rental, lodging, meals,
business telephone and related travel expenses) incurred by the Consultant from
time to time in the performance of her duties hereunder, provided that each such
expense shall be in accordance of the Company's budgets, policies and
procedures, as the same may be amended from time to time, and shall have been
approved in advance by an authorized representative of the Company in each
instance.
3. TERM AND TERMINATION
3.1 Term. The term of the Consultant's appointment as a
consultant of the Company shall commence on the date hereof and shall terminate
on December 31, 1999 (the "Term").
3.2 At Will Relationship. The Consultant and the Company each
hereby acknowledges and agrees that, except as expressly set forth in Section
3.2, (i) the Consultant's relationship with the Company under this Agreement is
AT WILL and can be terminated at the option of either the Consultant or the
Company in its sole and absolute discretion, for any or no reason whatsoever,
with or without cause, (ii) no representations, warranties or assurances have
been made concerning the length of such relationship or the amount of
compensation to be received by the Consultant and (iii) after the termination of
her relationship with the Company, the Consultant shall have no right, title or
interest in or claim to any revenues received by the Company from any person for
any goods sold or services rendered by the Company to such person, whether or
not the Consultant was the cause, in whole or in part, for such person to
purchase such goods from the Company or to retain the Company to perform such
services.
3.3 Duties Upon Termination. In the event that the Consultant's
relationship with the Company under this Agreement is terminated, neither the
Company nor the Consultant shall have any remaining duties or obligations
hereunder, except that (i) the Company shall promptly pay to the Consultant, or
her estate, all reimbursable expenses incurred by the Consultant hereunder as of
such date pursuant to Section 2.1 and such compensation as is due to the
Consultant pursuant to Section 2.1(i) pro rated through the date of termination,
(ii) the Consultant and the Company shall continue to be bound by Section 4
hereof and (iii) in the event the Company terminates the Consultant's
relationship with the Company under Section 1.1 without cause, then the Company
shall continue to provide to the Employee such compensation as would have been
due pursuant to Section 2.1(i) had such termination not occurred until the end
of the Term. The Consultant's relationship with the Company shall be deemed to
have been terminated by the Company without cause unless it shall have been
terminated by the Company as the result of the Consultant's continued and
willful failure or refusal to substantially perform her duties in accordance
with this Agreement after the Consultant first shall have received written
notice from the Company specifying the acts or omissions alleged to constitute
such breach and the same continues after the Consultant shall have had
reasonable opportunity to correct such breach. If the Consultant terminates her
relationship with the Company as the result of the breach by the Company of any
material term of this Agreement, such relationship shall be deemed to have been
terminated by the Company without cause.
4. INTELLECTUAL PROPERTY
4.1 Trade Secrets. The Consultant shall not, without the prior
written consent of the Company's Board of Directors in each instance, disclose
or use in any way, either during the Term or thereafter, except as required in
the course of such relationship, any confidential business or technical
information or trade
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secret of the Company acquired (i) prior to the date hereof from the Company or
(ii) in the course of such relationship, whether or not patentable,
copy-rightable or otherwise protected by law, and whether or not conceived of or
prepared by her (collectively, the "Trade Secrets"), including, without
limitation, any information concerning customer lists, products, formulas,
procedures, operations, investments, financing, costs, employees, purchasing,
accounting, marketing, merchandising, sales, salaries, pricing, profits and
plans for future development, the identity, requirements, preferences, practices
and methods of doing business of specific parties with whom the Company
transacts business, and all other information which is related to any product,
service or business of the Company, other than information which is generally
known in the industry in which the Company transacts business or is acquired
from public sources; all of which Trade Secrets are the exclusive and valuable
property of the Company.
4.2 Tangible Items. All files, accounts, records, documents,
books, forms, notes, reports, memoranda, studies, compilations of information,
correspondence and all copies, abstracts and summaries of the foregoing, and all
other physical items related to the Company, other than a merely personal item,
whether of a public nature or not, and whether prepared by the Consultant or
not, are and shall remain the exclusive property of the Company and shall not be
removed from the premises of the Company, except as required in the course of
rendering consulting services to the Company, without the prior written consent
of the Company in each instance, and the same shall be promptly returned to the
Company by the Consultant on the expiration or termination of her relationship
with the Company or at any time prior thereto upon the request of the Company.
4.3 Solicitation of Employees. During the term of her
relationship with the Company and for one (1) year thereafter (such period not
to include any period of violation hereof by the Consultant or period which is
required for litigation to enforce this paragraph and during which the
Consultant is in violation hereof), the Consultant shall not, directly or
indirectly, either for her own benefit or purposes or the benefit or purposes of
any other person employ or offer to employ, call on, solicit, interfere with or
attempt to divert or entice away any employee or independent contractor of the
Company (or any person whose employment or status as an independent contractor
has terminated within the twelve (12) months preceding the date of such
solicitation) in any capacity if that person possesses or has knowledge of any
Trade Secrets of the Company.
4.4 Injunctive Relief. The Consultant hereby acknowledges and
agrees that it would be difficult to fully compensate the Company for damages
resulting from the breach or threatened breach of the foregoing provisions and,
accordingly, that the Company shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunction,
permanent injunctions or any other remedies available to the Company for
enforcement of such provisions without the necessity of proving actual damages
or posting any bond or other undertaking in connection therewith. This provision
with respect to injunctive relief shall not, however, diminish the Company's
right to claim and recover damages.
4.5 "Company." As used in this Section 4, the term "Company"
shall mean Diodes Incorporated and all persons controlling, controlled by or
under common control with the Company including, but not limited to, Shanghai
KaiHong Electronics Co., Ltd.
5. MISCELLANEOUS
5.1 Severable Provisions. The provisions of this Agreement are
severable, and if any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions, and any
partially unenforceable provisions to the extent enforceable, shall nevertheless
be binding and enforceable.
5.2 Successors and Assigns. All of the terms, provisions and
obligations of this Agreement shall inure to the benefit of and shall be binding
upon the parties hereto and their respective heirs, representatives, successors
and assigns. Notwithstanding the foregoing, neither this Agreement nor any
rights hereunder shall be assigned, pledged, hypothecated or otherwise
transferred by the Consultant without the prior written consent of the Company
in each instance.
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5.3 Governing Law. The validity, construction and interpretation
of this Agreement shall be governed in all respects by the laws of the State of
California applicable to contracts made and to be performed wholly within that
State.
5.4 Consent to Jurisdiction. Each party hereto, to the fullest
extent it may effectively do so under applicable law, irrevocably (i) submits to
the exclusive jurisdiction of any court of the State of California or the United
States of America sitting in the City of Los Angeles over any suit, action or
proceeding arising out of or relating to this Agreement, (ii) waives and agrees
not to assert, by way of motion, as a defense or otherwise, any claim that it is
not subject to the jurisdiction of any such court, any objection that it may now
or hereafter have to the establishment of the venue of any such suit, action or
proceeding brought in any such court and any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum,
(iii) agrees that a judgment in any such suit, action or proceeding brought in
any such court shall be conclusive and binding upon such party and may be
enforced in the courts of the United States of America or the State of
California (or any other courts to the jurisdiction of which such party is or
may be subject) by a suit upon such judgment and (iv) consents to process being
served in any such suit, action or proceeding by mailing a copy thereof by
registered or certified air mail, postage prepaid, return receipt requested, to
the address of such party specified in or designated pursuant to Section 5.7.
Each party agrees that such service (i) shall be deemed in every respect
effective service of process upon such party in any such suit, action or
proceeding and (ii) shall, to the fullest extent permitted by law, be taken and
held to be valid personal service upon and personal delivery to such party.
5.5 Headings. Section and subsection headings are not to be
considered part of this Agreement and are included solely for convenience and
reference and in no way define, limit or describe the scope of this Agreement or
the intent of any provisions hereof.
5.6 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof,
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, relating to the subject matter of this
Agreement. No supplement, modification, waiver or termination of this Agreement
shall be valid unless executed by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute a
waiver of any other provisions hereof (whether or not similar), nor shall such
waiver constitute a continuing waiver unless otherwise expressly provided.
5.7 Notice. Any notice or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been given
(i) if personally delivered, when so delivered, (ii) if mailed, one (1) week
after having been placed in the United States mail, registered or certified,
postage prepaid, addressed to the party to whom it is directed at the address
set forth on the signature pages below or (iii) if given by telex or telecopier,
when such notice or other communication is transmitted to the telex or
telecopier number specified on the signature pages below and the appropriate
answer back or telephonic confirmation is received. Either party may change the
address to which such notices are to be addressed by giving the other party
notice in the manner herein set forth.
5.8 Attorneys' Fees. In the event any party takes legal action to
enforce any of the terms of this Agreement, the unsuccessful party to such
action shall pay the successful party's expenses, including attorneys' fees,
incurred in such action.
5.9 Third Parties. Nothing in this Agreement, expressed or
implied, is intended to confer upon any person other than the Company or the
Consultant any rights or remedies under or by reason of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date and year first set forth above.
DIODES INCORPORATED
By /s/ Xxxx Xxxxx
Xxxx Xxxxx
Authorized Representative
0000 Xxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx 00000
Telecopier Number: (000) 000-0000
By /s/ J.Y. Xing
J.Y. Xing
0000 00xx Xxxxx
Xxxxxxxxx 00X
Xxxx Xxxx, Xxx Xxxx 00000
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