EXHIBIT 10.3
Suntech Power Co., Ltd. Employment Agreement
FORM OF EMPLOYMENT AGREEMENT
This Employment Agreement (this "Agreement") is entered into on this 15th
June, 2005, by and between SUNTECH POWER CO., LTD. (the "Company"), and [NAME OF
EMPLOYEE], (the "Employee").
WHEREAS, the Company has appointed the Employee to the position of
[POSITION/TITLE], and the Employee has accepted such appointment;
WHEREAS, in connection with such appointment, the Company and the Employee
desire to enter into this Agreement;
NOW, THEREFORE, in consideration of the Employee's appointment as
[POSITION/TITLE], and for other good and valuable consideration the receipt of
which is hereby acknowledged, it is agreed by the Employee and Company as
follows:
SECTION 1. EMPLOYMENT
The Company hereby employs the Employee as [POSITION/TITLE]. The term of
the employment, pursuant to this Agreement, will commence on ______, (the
"Commencement Date") and will continue until ___________("Employment Term"), or
the termination of this Agreement as described in Section 9 hereof, whichever
shall occur first. The Employee hereby accepts such employment.
SECTION 2. JOB RESPONSIBILITIES
The Employee shall perform such responsibilities during the Employment Term
as follows:
(a) Provision of advice to the company relating to technology choice
and improvements
(b) Assist with improving the company production technology to
improve device performance and/or reduce cost.
(c) Analyze devices and/or modules as required to identify causes of
problems with production and assist with finding solutions to
such problems.
(d) Provide training for staff in appropriate areas.
(e) Assist with assessment procedures for technician and production
staff in relevant areas.
(f) Any other responsibilities as assigned by Xx. Xxx.
SECTION 3. REMUNERATION
Subject to the terms and conditions of this Agreement, during the
Employment Term, the remuneration package is as follows:
(a) The working hour of the Employee shall be [_____]% of working
hour per year, comprising [_____]% in attendance at the premises
of the company and the other [_____]% working on company projects
in other locations, primarily at [_____].
Suntech Power Co., Ltd. Employment Agreement
(b) The Employee shall receive a monthly salary of USD[_____] payable
before the 10th of each month. The salary shall be paid directly
into the banking account of the Employee.
(c) The Employee shall pay his own tax in compliance with the
relevant laws and regulations of China.
(d) The Employee shall submit the working visa and other relevant
applications to the local authority. The Company shall provide
the necessary employment documents for the above mentioned
applications.
SECTION 4. FRINGE BENEFITS
The Employee shall be entitled to participate in the following benefit
plans and programs:
(a) Transportation Benefits.
(1) The Company shall provide round trip tickets (business
class) between Shanghai and [location] for the Employee.
(b) Stock options.
Stock options will be decided and arranged later in the year of 2005.
This Section 4(b) shall not constitute to any promise or responsibility of
the Company to the Employee on the stock options.
SECTION 5. REIMBURSEMENT FOR EXPENSES DURING BUSINESS TRIPS
The Company shall reimburse the Employee, in accordance with the Company's
policies and practices in effect from time to time, for all the Expenses
hereunder reasonably incurred by the Employee in performance of the Employee's
duties during business trips.
(a) Expenses shall include the transportation cost, accommodation
fee, catering fee in business trip and shall be reimbursed upon
the submission of receipts.
(b) Other expenses including the laundry fee, paid television fee and
other private expenses shall be responsible by the Employee.
(c) Business trips aforesaid shall be approved by the Company.
SECTION 6. EMPLOYEE INVENTIONS
(a) The term "Employee Inventions" means any and all processes,
inventions, technology, computer programs, original works of
authorship, designs, formulas, patents, discoveries, copyrights
and all improvements, rights, and
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Suntech Power Co., Ltd. Employment Agreement
claims that are conceived, developed or reduced to practice by
the Employee alone or with others.
(b) Any and all Employee Inventions which the Employee has conceived
or made, or may conceive or make during the Employment Term using
the Company's equipment, supplies, facilities or trade secret,
directly or indirectly, connected with the Company's business,
shall be the sole and exclusive property of the Company. The
Employee agrees that all patentable and copyrightable works
created by the Employee while working on company projects or
under the Company's direction, in connection with the Company's
business are "works made for hire" and the Employee hereby
assigns all proprietary rights, including patent and copyright,
in these works to the Company without further compensation.
(c) The Employee further agrees to (i) disclose promptly to the
Company all such Employee Inventions which the Employee has made
or may make while working on company projects solely, jointly or
commonly with others, (ii) assign all such Employee Inventions to
the Company, and (iii) execute and sign any and all applications,
assignments or other instruments which the Company may deem
necessary in order to enable it, at its expense, to apply for,
prosecute, and obtain patents, copyrights, or other proprietary
rights in China and foreign countries, or in order to transfer to
the Company all right, title and interest in said Employee
Inventions.
(d) Any Employee Inventions which the Employee can demonstrate to be
developed entirely on the Employee's own time without using the
Company's equipment, supplies, facilities or trade secret shall
belong to the Employee. The Employee shall disclose promptly to
the Company all such Employee Inventions.
(e) Inventions made by the Employee prior to his employment shall be
notified to the Company. Eventual rights for utilisation of
results from copyright work performed by the Employee shall
exclusively belong to the Company. Any employee inventions
developed through R&D projects at [institution/location] not
funded by the company, shall be the property of
[institution/location] or the appropriate funding organisation.
For example, inventions arising from collaborative research
between [institution/location] and [institution/location]
relating to the use of inkjet printing in solar cell fabrication,
and funded by these organisations, shall be the property of these
organisations.
(f) Other provisions refer to Exhibit A hereunder.
SECTION 7. CONFIDENTIAL INFORMATION.
(a) The Employee recognizes and acknowledges that he will have access
to certain information of the Company and that such information
is confidential and constitutes valuable, special and unique
property of the Company. The parties agree that the Company has a
legitimate interest in protecting the Confidential
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Suntech Power Co., Ltd. Employment Agreement
Information, which includes all the commercial and technological
secrets and know-how and other confidential information of the
Company. The parties agree that the Company is entitled to
protection of its interests in the Confidential Information. The
Employee shall not at any time, either during or subsequent to
the term of this Agreement, disclose to others, use, copy or
permit to be copied, except in pursuance of his duties for an on
behalf of the Company, it successors, assigns or nominees, any
Confidential Information of the Company (regardless of whether
developed by the Employee) without the prior written consent of
the Company.
(b) The parties agrees that in the event of a violation of this
covenant against non-use and non-disclosure of Confidential
Information, that the Company shall be entitled to a recovery of
damages from Employee and/or an injunction against the Employee
for the breach or violation or continued breach or violation of
this covenant or the confidential agreement mentioned above.
(c) The Employee shall not issue any publications and papers
containing any Confidential Information of the Company without
the prior written consent of the Company.
(d) The Employee agrees to sign a Confidential Agreement in Exhibit A
hereunder with the Company.
SECTION 8. NON-COMPETITION
(a) During the Employment Term, the Employee shall devote his full
business efforts (see 3(a)) and time to the Company. Employee
agrees, during the Employment Term for a period of 6 months
thereafter, not to actively engage in any other employment,
occupation, consulting activity or business referral for any
direct or indirect remuneration without the prior approval of the
Company; provided, however, that Employee may serve in any
capacity with any civic, educational or charitable organization,
or as a member of corporate Boards of Directors or committees
thereof, without the approval of the Company, unless there is a
conflict of interest.
(b) During the Employment Term, the Employee shall declare any
shareholdings and interest in other companies in which there is a
conflict interest with the Company. (The employee holds [_____]
shares in [institution/location], purchased for [_____] each in
[_____].)
(c) Other provisions refer to Exhibit A hereunder.
SECTION 9. TERMINATION OF EMPLOYMENT.
(a) Death of Disability. The Employee's employment shall terminate
automatically upon the Employee's death. The Company shall be
entitled to
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Suntech Power Co., Ltd. Employment Agreement
terminate the Employee's employment because of the Employee's
Disability during the Employment Period. "Disability" means that
the Employee has been unable for 30 consecutive business days, to
perform the Employee's duties under this Agreement, as a result
of physical or mental illness or injury. A termination of the
Employee's employment by the Company for Disability shall be
communicated to the Employee by written notice, and shall be
effective on the 30th day after receipt of such notice by the
Employee (the "Disability Effective Date"), unless the Employee
returns to full-time performance of the Employee's duties before
the Disability Effective Date. The Employee is entitled to the
payment of ______________________.
(b) Termination by the Company. (i) The Company may terminate the
Employee's employment for Cause. "Cause" means (A) the conviction
of the Employee for the commission of a felony from which all
final appeals have been taken, or (B) willful gross misconduct by
the Employee in connection with his employment by the Company, in
either case that results in material and demonstrable financial
harm to the Company. The Company shall give the Employee prior
written notice ______ days in advance of its intention to
terminate the Employee's employment for Cause, setting forth in
reasonable detail the specific conduct of the Employee that it
considers to constitute Cause and the specific provision(s) of
this Agreement on which it relies. The Employee is entitled to
the payment of ______________________. (ii) The Company may
terminate the Employee's employment without Cause by giving prior
written notice ________ days in advance and the Employee is
entitled to the payment of ______________________.
(c) Termination by Employee. (i) The Employee may terminate
employment for Good Reason, which means any material breach of
this Agreement by the Company that is not remedied by the Company
promptly after receipt the remedy request from the Employee. A
termination of employment by the Employee for Good Reason shall
be effectuated by giving the Company prior written notice
__________ days in advance of the termination, setting forth in
reasonable detail the specific conduct of the Company that
constitutes Good Reason and the specific provision(s) of this
Agreement on which the Employee relies. The Employee is entitled
to the payment of ______________________. (ii) The Employee may
terminate employment without Good Reason with prior written
notice ________ days in advance and the Employee is entitled to
the payment of _______________________.
SECTION 10. CONCLUDING PROVISIONS
(a) The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of mainland of the
Republic of China.
(b) The invalidity or unenforceability of any provision or provisions
of this Agreement shall not affect the validity or enforceability
of any other provisions of this Agreement, which shall remain in
full force and effect.
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Suntech Power Co., Ltd. Employment Agreement
(c) Except as other provided herein, this Agreement sets forth the
entire agreement of the parties hereto in respect of the subject
matter contained herein and supersede all prior agreements,
promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto in
respect of such subject matter. Except as other provided herein,
any prior agreement of the parties hereto in respect of the
subject matter contained herein is hereby terminated and
cancelled.
(d) When the two parties dispute over this contract, both parties
shall make their best effects to resolve the dispute through
friendly consultation and mediation. If such consultation or
mediation fails to resolve the dispute, either party may resort
to legal procedure in the local court where the Company located.
(e) This Agreement shall have two (2) counterparts, each of which
shall have the same legal effect.
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Suntech Power Co., Ltd. Employment Agreement
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives:
SUNTECH POWER CO., LTD.
By:
---------------------------------
(Authorized Signature of the Legal Representative)
Title: Chief Executive Officer
Place of Execution: Suntech Power Co., Ltd.
[NAME OF EMPLOYEE]
By:
---------------------------------
(Signature)
Place of Execution: Suntech Power Co., Ltd.
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Suntech Power Co., Ltd. Employment Agreement
Exhibit A
NON-DISCLOSURE, NON-COMPETITION AND PROPRIETARY
INFORMATION AGREEMENT
In partial consideration and as a condition of my employment by Suntech
Power Co., Ltd. (the "Company"), and effective as of the date that my employment
by Company first commenced, I hereby agree as follows:
1. NON-DISCLOSURE
A. I will hold all Company Confidential Information in confidence and
will not disclose, use, copy, publish, summarize, or remove from the
premises of Company any Confidential Information, except (a) as a
necessary to carry out my assigned responsibilities as a Company
employee, and (b) after termination of my employment, only as
specifically authorized in writing by an officer of Company. However,
I shall not be obligated under this paragraph with respect to
information I can document is or becomes readily publicly available
without restriction through no fault of mine. "CONFIDENTIAL
INFORMATION" shall mean all information related to any aspect of the
business of Company which is either information not known by actual or
potential competitors of Company or is proprietary information of
Company, whether of a technical nature or otherwise. Confidential
Information includes inventions, disclosures, processes, systems,
methods, formulae, devices, patents, patent applications, trademarks,
intellectual properties, instruments, materials, products, patterns,
compilations, programs, techniques, sequences, designs, research or
development activities and plans, specifications, computer programs,
source codes, costs of production, prices or other financial data,
volume of sales, promotional methods, marketing plans, lists of names
or classes of customers or personnel, lists of suppliers, business
plans, business opportunities or financial statements.
B. I will safeguard and keep confidential the proprietary information of
customers, vendors, consultants and other parties with which Company
does business to the same extent as if it were Company Confidential
Information. I will not, during my employment with Company or
otherwise, use or disclose to Company any confidential, trade secret
or other proprietary information or material of any previous employer
or other person, and I will not bring onto Company's premises any
unpublished document or any other properly belonging to any former
employer without the written consent of that former employer.
2. NON-COMPETITION
A. During my employment with Company, I will perform for Company such
duties as it may designate from time to time and will devote my full
time and best efforts to the business of Company and will not, without
the prior written approval (i) an officer for Company if I am not an
executive officer of Company or (ii) the board of Managers of Company
if I am an executive officer for Company, (a) engage in any other
professional employment or consulting, or (b) directly or indirectly
participate in or assist any business which is a current or potential
supplier, customer, or competitor of Company.
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Suntech Power Co., Ltd. Employment Agreement
B. I agree that during the term of my employment with Company (whether or
not during business hours), I will not engage in any activity that is
in any way competitive with the business or demonstrably anticipated
business of Company, and I will not assist any other person or
organization in competing or in preparing to compete with any business
or demonstrably anticipated business of Company.
C. During the terms of my employment by Company and for one year
thereafter, I shall not directly or indirectly, without the prior
written consent of Company, solicit, recruit, encourage or induce any
employees, officers, consultants, contractors or subcontractors of
Company to leave the employ of Company, either on my own behalf or on
behalf of any other person or entity.
3. PROPRIETARY INFORMATION
A. Upon termination of my employment, I will promptly return to Company
all items containing or embodying Confidential Information (including
all copies), except that I may keep my personal copies of (i) my
compensation records, (ii)materials distributed to
shareholders generally and (iii) this Agreement. All papers,
records, data, notes, drawings, files, documents, samples, devices,
products, equipment and other materials, including copies and in
whatever form relating to the business of Company that I possess or
create as a result of my Company employment, whether or not
confidential, are the sole and exclusive property of Company. In the
event of the termination or expiration of my employment, I will
promptly deliver all such materials to Company.
B. All inventions, ideas, designs, circuits, schematics, formulas,
algorithms, trade secrets, works of authorship, developments,
processes, techniques, improvements, and related know-how which result
from work performed by me, alone or with others, on behalf of Company
or through access to Company confidential Information or property,
whether or not patentable or copyrightable (collectively "INVENTIONS")
shall be the property of Company, and to the extent permitted by law,
shall be "works made for hire". I hereby assign and agree to assign to
Company or its designee, without further consideration, my entire
right, title and interest in and to all Inventions, including all
rights to obtain, register, perfect and enforce patents, copyrights
and other intellectual property protection for inventions. I will
disclose promptly and in writing to the individual designated by
Company or to my immediate supervisor all Inventions which I have made
or reduced to practice. During my employment and for four years after,
I will assist Company (at its expense) to obtain and enforce patents,
copyrights and other forms of intellectual property protection on
Inventions. If I use or disclose my own confidential information or
intellectual property when acting within the scope of my employment or
otherwise on behalf of Company, Company will have and I hereby grant
Company a perpetual, irrevocable, worldwide royalty-free,
non-exclusive, sublicensable right and license to exploit and exercise
all such confidential information and intellectual property rights.
C. I have no entered into, and I agree I will not enter into, any
agreement either written or oral in conflict with this Agreement or my
employment with Company. I will not violate any agreement with or
rights of any third party or,
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Suntech Power Co., Ltd. Employment Agreement
except as expressly authorized by Company in writing hereafter, use or
disclose my own or any third party's confidential information or
intellectual property when acting within the scope of my employment or
otherwise on behalf of Company. Further, I have not retained anything
containing any confidential information of a prior employer or other
third party, whether or not created by me.
4. MISCELLANEOUS
A. I agree that this Agreement is not an employment contract and does not
purport to set forth all of the terms and conditions of my employment.
However, the terms of this Agreement shall supercede any inconsistent
terms and can only be changed by a subsequent written agreement signed
by Company's Chairman of the Board and myself.
B. I agree that my obligation under paragraphs 1,2 and 3 of this
Agreement shall continue in effect after termination of my employment,
regardless of the reason or reasons for termination, and whether such
termination is voluntary of involuntary on my part., and that Company
is entitled to communicate my obligations under this Agreement to any
further employer or potential employer of mine. My obligations under
paragraphs 1,2 and 3 also shall be binding upon my heirs, executors,
assigns, and administrators and shall inure to the benefit of Company,
its subsidiaries, successors and assigns.
C. I agree that if one or more provisions of this Agreement are held to
be illegal or unenforceable under applicable laws of the People's
Republic of China, such illegal or unenforceable portion(s) shall be
limited or excluded from this Agreement to be minimum extent required
so that this Agreement shall otherwise remain in full force and effect
and enforceable in accordance with its terms. I also understand that
any breach of this Agreement will cause irreparable harm to Company
for which damages would not be an adequate remedy, and, therefore,
Company will be entitled to injunctive relief with respect thereto in
addition to any other remedies.
D. I agree that this Agreement shall be executed in both English and
Chinese and both language versions are equally effective.
E. I HAVE READ THIS AGREEMENT CAREFULLY AND I UNDERSTAND AND ACCEPT THE
OBLIGATIONS WHICH IT IMPOSES UPON ME WITHOUT RESERVATION, NO PROMISES
OR REPRESENTATIONS HAVE BEEN MADE TO ME TO INDUCE ME TO SIGN THIS
AGREEMENT, I SIGN THIS AGREEMENT VOLUNTARILY AND FREELY, IN DUPLICATE,
WITH THE UNDERSTANDING THAT ONE COUNTERPART WILL BE RETAINED BY
COMPANY AND THE OTHER COUNTERPART WILL BE RETAINED BY ME.
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Suntech Power Co., Ltd. Employment Agreement
SIGNATURE
Name of Employee:
-------------------
(Signature)
Date:
-------------------------------
ID Card No.:
------------------------
Home Address:
-----------------------
Accepted and Agreed by: SUNTECH POWER CO., LTD.
By:
---------------------------------
(Authorized Signature of the Legal Representative)
Date:
-------------------------------
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