Exhibit 10.2
FORM EXECUTIVE EMPLOYMENT AGREEMENT
This EXECUTIVE EMPLOYMENT AGREEMENT (the "Agreement") is signed on June 19, 2006
in Qidong, the People's Republic of China ("China"), between:
Jiangsu Linyang Solarfun Co., Ltd. (the "Company"), a company organized and
existing under the laws of the People's Republic of China, and
[-] (the "Employee"), an individual residing at [-].
ARTICLE 1. GENERAL PROVISIONS
1.1 EMPLOYMENT
The Company hereby offers formal employment to the Employee and the Employee
hereby agrees to be employed by the Company, as Vice President, and shall
perform all services appropriate to that position, as well as such other
services as may be assigned by the Company. The Employee shall devote its best
efforts and full-time attention to the performance of its duties.
ARTICLE 2. TERM
2.1 TERM
The term of this Agreement shall commence on June 19, 2006 (the "Start Date")
and shall continue for a period of three (3) years from the date of commencement
(the "Term"), unless this Agreement is earlier terminated in accordance with its
terms.
2.2 RENEWAL OF AGREEMENT
The Term may be renewed for additional periods from the scheduled expiration of
the Term by written agreement between the parties. Negotiation to renew the Term
shall be held at least sixty (60) days prior to the scheduled expiration of the
Term.
ARTICLE 3. SCOPE OF WORK
3.1 SCOPE OF WORK
As Vice President, the Employee's responsibilities shall include (but are not
necessarily limited to) the following areas:
- As determined by the Board of Directors of the Company or the CEO of the
Company.
The Employee shall be subject to the direction of the Company, which shall
retain full control of the means and methods by which it performs the above
services and of the place(s) at which all services are rendered. The Employee
shall be expected to travel if necessary or advisable in order to meet the
obligations of its position.
3.2 DUTIES OF EMPLOYEE
During the Term, the Employee shall be employed by the Company on a full-time
basis and the Employee shall diligently perform the Employee's duties, work in
co-operation with the Employee's colleagues, and observe the terms of this
Agreement and the applicable regulations and guidelines of the Company,
including the work rules contained in the Company's employee handbook (the
"Employee Handbook").
ARTICLE 4. REMUNERATION AND BENEFITS
4.1 BASE SALARY
In consideration of the services to be rendered under this Agreement, the
Company shall pay the Employee an initial monthly gross salary determined by the
compensation committee of the board of directors of the Company, payable as
specified below and pursuant to the Company's usual payroll practices. The
Company shall review annually the Employee's compensation and shall determine
whether and how much the existing compensation shall be adjusted, with reference
to the policy or practice that the Company may have for adjusting salaries. All
compensation and comparable payments to be paid to the Employee under this
Agreement shall be less withholdings required by applicable law.
The Employee's salary shall be paid monthly in arrears at the end of each month
or no later than five (5) days from the end of each month and shall be paid
directly to the Employee or through the Employee's bank account. In the event
this Agreement is terminated prior to the end of the Term, the Employee's salary
shall be pro rated accordingly.
4.2 WORKING HOURS
Normal work hours shall be eight (8) hours each day not including meals and
rest, five (5) days per week, Monday to Friday, for a total of forty (40) hours
per week. It may be necessary to work outside normal office hours and on
weekends from time to time. The parties agree that the Employee's salary
specified in Article 4.1 above takes into consideration the work the Employee
may undertake outside normal office hours and that the Employee's working hours
shall be the "Flexible Work Hours", which can ensure the proper completion of
the Employee's work assignments hereunder to the satisfaction of the Company;
therefore, no additional amounts are payable for work outside normal office
hours.
4.3 BONUS AND OPTION
The Employee will be eligible to participate in the Company's annual performance
bonus scheme and any stock option or incentive plan approved and adopted by the
board of directors of the Company.
4.4 BENEFITS
The Employee shall be entitled to insurance and other benefits commensurate with
the Employee's position in accordance with the Company's standard policies in
effect from time to time. The Employee shall also be entitled to ten (10) days
of paid vacation in the first year of
2
employment and the number of days of such paid vacation shall be increased in
the following years of employment. All benefits shall begin to accrue on the
Effective Date. In the event this Agreement is terminated prior to the end of
the Term, benefits shall be pro rated accordingly.
4.5 EXPENSES
The Company shall reimburse the Employee for reasonable travel and other
business expenses incurred by the Employee in the performance of its duties, in
accordance with the Company's policies, as they may be amended in the Company's
sole discretion.
ARTICLE 5. REPRESENTATION
5.1 CONFLICTING AGREEMENTS
The Employee hereby represents and warrants that the execution of this Agreement
and the performance of the Employee's obligations hereunder will not breach or
be in conflict with any other agreement to which the Employee is a party or is
bound and that the Employee is not now subject to any covenants against
competition or similar covenants that would affect the performance of the
Employee's obligations under this Agreement. The Employee will not disclose to
or use on behalf of the Company any proprietary information of a third party
without such party's consent.
ARTICLE 6. TERMINATION OF EMPLOYMENT
6.1 TERMINATION BY COMPANY WITHOUT ADVANCE NOTICE
The Company may, without advance notice, terminate this Agreement under any of
the following circumstances:
(a) The Employee seriously violates the internal rules or labor discipline of
the Company;
(b) The Employee commits an act of serious dereliction of duty or graft, which
causes significant harm to the Company's interest;
(c) The Employee is sentenced for a criminal offence; or
(d) Other circumstances that may give rise to immediate termination of
employment pursuant to the applicable PRC laws and regulations.
6.2 TERMINATION BY COMPANY WITH ADVANCE WRITTEN NOTICE
The Company may terminate this Agreement with thirty (30) days advance written
notice to the Employee under any of the circumstances set forth below:
(a) The Employee is incompetent for his/her job and such incompetence can not be
cured through training or transfer of working positions;
3
(b) The Employee suffers a non-occupational disease or injury, and can perform
neither his/her current work assignment nor his/her new work assignment after
expiration of the statutory medical treatment period for his/her
non-occupational disease or injury;
(c) A substantial change of circumstances which renders performance of this
Agreement impossible and attempts at re-negotiating a new agreement fails; or
(d) The Company has to layoff its staff due to (i) legal reorganization caused
by approaching bankruptcy, or (ii) serious difficulties in its production
operations.
6.3 NO TERMINATION BY THE EMPLOYEE
The Employee may not terminate his employment during the Term, provided that he
has received special benefits from the Company, including without limitation the
housing or automobile allowances, stock option or any other incentive plan.
6.4 AUTOMATIC TERMINATION
This Agreement shall be terminated automatically upon the occurrence of any of
the following circumstances:
(a) The Company dissolved or declared bankrupt according to the relevant laws
and regulations;
(b) The Employee reaches the legal retirement age; or
(c) The Employee dies.
6.5 SEVERANCE
Without prejudice to any other rights under the applicable laws, if the
Employee's employment with the Company is terminated pursuant to Articles 6.2,
the Employee shall be entitled to a severance package in accordance with
applicable laws and regulations.
ARTICLE 7. EMPLOYEE'S OBLIGATION
7.1 TERMINATION OBLIGATIONS
Upon termination of this Agreement, the Employee agrees that all property,
including, without limitation, all equipment, tangible Confidential Information
(as defined below), documents, records, notes, contracts, and computer-generated
materials furnished to or prepared by the Employee incident to its employment
belongs to the Company and shall be returned promptly to the Company upon
termination of the Employee's employment.
Following any termination of the Term, the Employee shall fully cooperate with
the Company in all matters relating to the winding up of pending work on behalf
of the Company and the orderly transfer of work to other employees of the
Company. The Employee shall also cooperate in the
4
defence of any action brought by any third party against the Company that
relates in any way to the Employee's acts or omissions while employed by the
Company.
7.2 OTHER ASSOCIATION
During the Term of this Agreement, the Employee shall neither directly nor
indirectly alone or in association with others be connected with or undertake
any other business or professional activity, including employment, without the
prior written permission of or express authorization by the Company.
7.3 DUE PRACTICE
The Employee shall not, and shall not direct any other person to, offer, promise
or give to any government official, any political party or official thereof, any
candidate for political office, or any other person any money or any other thing
of value while knowing or having reason to know that all or a portion of such
money or thing of value will be offered, promised, or given directly to any of
those listed above for the purpose of influencing any action, omission, or
decision by the recipient in order to obtain or retain business for the Company
or to direct business to another.
ARTICLE 8. CONFIDENTIALITY; INVENTIONS; NON-COMPETITION;
NON-SOLICITATION
8.1 CONFIDENTIALITY
The Employee hereby acknowledges that the Company has and owns certain
confidential information and trade secrets that are not accessible to the
public, are capable of generating economic benefits, have certain tangible
value, and that the Company has adopted appropriate measures to safeguard these
confidential information and trade secrets (the "Confidential Information"). Due
to his/her position in the Company, the Employee is capable of acquiring and
being knowledgeable of such Confidential Information. Confidential Information
includes the following information and data: management and service processes,
technology, sales, marketing, customer information, finances and other
information of the Company or any business entity affiliated with the Company,
and information relating to the products, procedures, business and services of
the Company.
Upon termination of this agreement, the Employee will return to the Company all
files, materials and the photocopies thereof, software, diskettes, hard drive
and laser discs belonging to the Company or relating to the Confidential
Information.
The Employee hereby agrees and warrants that, during the term of this agreement
and in the years thereafter, the Employee shall not use the Confidential
Information of the Company for his/her personal purposes or personal gains or
for any purpose other than the Employee's performance of the Employee's duties
and obligations under this Agreement. Unless otherwise permitted by the Company
in writing, the Employee also agrees that, during the term of this agreement and
after termination of this agreement, he/she shall not disclose any such
Confidential Information to any company or person, organization or entity for
any purpose and in any manner, except (a) to the Company's employees at the
request of the Company, or (b) as
5
required by law, regulation, governmental order, or order of any competent
court. The Employee further acknowledges that the Company owns the absolute
title to such Confidential Information, and the Employee will not raise any
objection or claim any right to the ownership to such Confidential Information,
and that, without the written approval of the Company, the Employee shall not
apply for any registration or filing of the ownership right to the Confidential
Information in any place of the world under his/her or any other person or
Company's name.
8.2 INVENTIONS
If, during the term of this Agreement, the Employee performs work that results
in the development of any inventions relating to processes, products or
formulations (the "Inventions"), such Inventions shall be the exclusive property
of the Company, and the Employee shall promptly disclose the Inventions to the
Company, and shall take all necessary steps, including the execution of
documents, to vest title and ownership of the Inventions in the Company.
Notwithstanding the foregoing and subject to complying with Article 7.2, the
Employee shall have the right to retain ownership of all patents obtained on any
Inventions made by the Employee during the Employee's non-working hours, and
without use of or reference to the Company's facilities, Confidential
Information or materials.
8.3 NON-COMPETITION
For so long as this Agreement is in effect and three (3) years thereafter, the
Employee shall not (i) compete with the Company, (ii) directly or indirectly
own, acquire, operate, become an employee of, render services to or participate
in the management of or invest in or loan any funds to any Person that competes
or is reasonably expected to compete with the Company or (iii) solicit, canvass
or entice away any director, officer, employee (including any part-time,
regular, contract or fixed term director, officer or employee) to work for or
otherwise render services to any other Person. To the extent any applicable PRC
law expressly requires the Company to compensate the Employee for the Employee's
compliance with this Article 8.3 during the abovementioned three (3) years of
post-employment non-compete period, the Company shall compensate the Employee in
accordance with such law.
ARTICLE 9. REMEDIES
9.1 DAMAGES
Breach of any of the provisions of this Agreement may lead to disciplinary
action, instant dismissal or other action against the Employee. The Employee
shall be held liable for any damage caused by a serious non-observance of the
rules and regulations of the Company and for any breach of this Agreement.
ARTICLE 10. DISPUTE RESOLUTION
10.1 DISPUTE RESOLUTION
The parties shall settle labour disputes in accordance with the following
procedure:
6
a. The parties shall first settle any dispute arising from the performance of
this Agreement through consultation.
b. Should such consultation fails; any party may submit such dispute to the
local Labour Dispute Arbitration Commission within sixty (60) days after the
occurrence of the dispute.
c. If any party is not satisfied with the award of the Labour Arbitration
Commission, such party may bring a lawsuit at the local People's Court within
fifteen (15) days after receiving such award.
ARTICLE 11. MISCELLANEOUS
11.1 COMPANY RULES
The Employee Handbook, as amended from time to time, and other rules and
materials issued by the Company from time to time shall form part of the terms
and conditions of this Agreement.
11.2 WAIVER
No failure to exercise and no delay in exercising any right, remedy, or power
under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, or power under this Agreement preclude
any other or further exercise thereof, or the exercise of any other right,
remedy, or power provided herein or by law or in equity.
11.3 SUCCESSORS AND ASSIGNS
Neither party may assign this Agreement or the rights and obligations hereunder
to any third party; provided, however, that the Company may assign its rights
and obligations under this Agreement to a successor entity to the Company as the
result of a merger or other corporate reorganization and which continues the
business of the Company, or to any subsidiary of the Company.
11.4 GOVERNING LAW; SEVERABILITY
The formation, validity, interpretation, execution, amendment and termination of
this Agreement shall be governed by the laws of China. If this Agreement at any
time conflicts with any applicable law and regulation, the Company and the
Employee will comply with all legal requirements and shall promptly amend this
Agreement accordingly. In the event any of the provisions of this Agreement
shall be held by a court or other tribunal of competent jurisdiction to be
unenforceable, the other provisions of this Agreement shall remain in full force
and effect.
11.5 ENTIRE AGREEMENT; AMENDMENT
This Agreement (i) shall come into effect when it is signed by the parties, (ii)
contains a complete statement of all the arrangements between the parties with
respect to the Employee's employment by the Company, (iii) supersedes all prior
and existing negotiations and agreements between the parties concerning the
Employee's employment and (iv) can only be changed or
7
modified pursuant to a written instrument duly executed by the Employee and by a
duly authorized representative of the Company other than the Employee.
11.6 FORCE MAJEURE
The obligations of the Company under this Agreement shall be suspended during
the period and to the extent of the Company is prevented or hindered from the
complying therewith by "Force Majeure." In such event, the Company shall give
notice to the Employee in writing of such suspension as soon as reasonably
possible, stating the date and extent of such suspension and the cause thereof.
In the event that the Company reasonably believes that the "Force Majeure" is
likely to have a permanent effect, this Agreement will be terminated immediately
and the Employee will be compensated up to the date of termination.
"Force Majeure" means any cause beyond the reasonable control of the Company
including but not limited to acts of God, wars, strikes, lock-outs, labor
disputes and compliance with any law, order, rule, regulation or direction of
any government, governmental agency or authority or state-owned enterprise.
11.7 LANGUAGE
This Agreement is executed in English and Chinese.
IN WITNESS WHEREOF, the Company and the Employee have caused this Agreement to
be executed on the date first written above.
By:
--------------------------
Name:
Title:
By:
--------------------------
Name:
8
