THIS
CONSULTING AGREEMENT is made and effective as of the first day of
January 2009, by and between Diodes Incorporated, a Delaware
corporation (the “Company”), and the Keylink
International (BVI) Co., Ltd. (the “Consultant”),
a corporation of the British Virgin Island, 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 the
Consultant’s experience, knowledge and abilities in the
Company’s business, and is willing to retain the Consultant,
and the Consultant’s 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 the
Consultant’s 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:
1.1
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 Electronic Co., Ltd. and Shanghai
KaiHong Technology Co., Ltd., both joint ventures in which the
Company has principal interests, 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 the Consultant to discharge its 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 Consultant’s entire
right, title and interest in and to the same.
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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. $6,000
payable within the first ten calendar days of each month,
commencing retroactively on July 1, 2008 and ending on the
date of the termination of this Agreement;
(ii) a
monthly business-only cellular telephone allowance;
(iii) Except
as otherwise stated in this Section 2.1, no reimbursement of
any and all other expenses (including, but not limited to, air
fare, car rental, lodging, meals, business and related travel
expenses) incurred by the Consultant shall be reimbursed by the
Company.
3.1
Term. The term of the Consultant’s appointment as a
consultant of the Company shall commence on the date of this
Agreement and shall terminate by either party with thirty
(30) days prior written notice or upon both parties signing a
new consulting agreement to replace this Agreement (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 the
Consultant’s 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 its account, 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 the Consultant’s
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
its 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.
4.1
Confidentiality and Trade Secrets. The Consultant shall not,
without the prior written consent of the Company’s Management
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 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, copyrightable or
otherwise
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