EXHIBIT 10.17
CONFIDENTIALITY, NON-COMPETITION AND
CONFIRMATORY ASSIGNMENT AGREEMENT
This CONFIDENTIALITY, NON-COMPETITION AND CONFIRMATORY ASSIGNMENT AGREEMENT
(this "Agreement") is made effective as of _______________ by and among IPG
Photonics Corporation, a Delaware corporation (the "Company"), and
_________________________________ (the "Employee").
WITNESSETH
WHEREAS, the Company is a manufacturer of fiber amplifiers, fiber lasers
and associated products.
WHEREAS, the Company's business is conducted throughout the world and the
reputation and goodwill of the Company are an integral part of its business
success; and
WHEREAS, in consideration and as a condition of any employment (or
continued employment) by the Company, Employee agrees to the terms of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. Confidentiality. Employee represents, warrants and covenants
that he or she has not revealed and will not at any time, whether during or
after the termination of his or her employment, reveal to anyone outside the
Company any of the trade secrets or confidential information of the Company, its
customers or suppliers, or any information received in confidence from third
parties by the Company. Confidential information of the Company is any
information or material (a) generated or collected by or used in the operation
of the Company that relates to the actual or anticipated business, marketing and
sales, strategic planning, products, services, research and development, or
production and/or manufacturing processes, of the Company or its customers or
suppliers, including its and their organization, personnel, customers and
finances; or (b) suggested by or resulting from any task assigned to Employee or
work performed by Employee for or on behalf of the Company. Employee will
deliver to the Company copies of all confidential information upon the earlier
of (a) a request by the Company, or (b) termination of Employee's employment.
Upon termination of Employee's employment, Employee will not retain any such
materials or copies.
Confidential Information shall not include (i) any information that is in
the public domain at time of disclosure or thereafter comes into the public
domain (other than by breach of this Agreement by Employee); or (ii) any
information which is disclosed to Employee in good faith by a third party
unaffiliated with the Company with the legal right to make such disclosure; or
(iii) any information which the Company authorizes its unrestricted use in
writing.
Further, Employee represents, warrants and covenants that during his or her
employment he or she did not and will not take, use or permit to be used
any notes, memoranda, reports, lists, records, drawings, sketches,
specifications, software programs, data, documentation or other materials of any
nature relating to any matter within the scope of the business of the Company or
concerning any of its dealings or affairs otherwise than for the benefit of the
Company. Employee further agrees that he or she has not used or permitted to be
used and shall not, after the termination of his or her employment, use or
permit to be used any such notes, memoranda, reports, lists, records, drawings,
sketches, specifications, software programs, data, documentation or other
materials, it being agreed that all of the foregoing shall be and remain the
sole and exclusive property of the Company and that immediately upon the
termination of Employee's employment he or she shall deliver all of the
foregoing, and all copies thereof, to the Company, at its main office.
Employee understands that the Company has received and will receive from
third parties information that is confidential or proprietary ("Third-Party
Information") and that is subject to restrictions on the Company regarding its
use and disclosure. Employee, both during and after termination of his or her
employment will hold Third-Party Information in the strictest confidence and
will not disclose or use Third-Party Information except as permitted by the
agreement between the Company and the relevant third party, unless expressly
authorized to act otherwise by the Company.
Employee agrees to report known or suspected unauthorized disclosures of
confidential or proprietary information of the Company by any other person
immediately to an officer of the Company.
Section 2. Non-Competition; Non-Solicitation. In view of the fact that any
activity of the Employee in violation of the terms hereof would adversely affect
the Company and its subsidiaries (as defined below), and to preserve the
goodwill associated with the Company's business, the Employee hereby agrees to
the following restrictions on his activities:
(a) Non-Competition. The Employee hereby agrees that one (1) year
after the date on which the Employee's employment with the Company and its
subsidiaries terminates for any reason (the "Non-Competition Period"), Employee
will not, without the express written consent of the Company, directly or
indirectly, anywhere in the world, engage in any activity which is, or
participate or invest in, or provide or facilitate the provision of financing
to, or assist (whether as owner, part-owner, shareholder, member, partner,
director, officer, trustee, employee, agent or consultant, or in any other
capacity) any business, organization or person other than the Company (or any
subsidiary of the Company), and including any such business, organization or
person involving, or which is, a family member of the Employee, whose business,
activities, products or services are competitive with the
products/technologies/services listed on the signature page hereof. The Employee
hereby acknowledges that, because of the global-based nature of the Company's
business, the geographic scope as set forth above is reasonable and fair.
(b) Non-Solicitation. The Employee hereby agrees that during the
period commencing on the date hereof and ending on the date which is the later
of (i) two (2) years after the date hereof and (ii) eighteen (18) months after
the date on which the Employee's employment with the Company and its
subsidiaries terminates for any reason, he will not, without the express written
consent of the Company, (w) hire or engage or attempt to hire or engage for or
on behalf of himself or herself or any such competitor any
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officer or employee of the Company or any of its subsidiaries, or any former
employee of the Company and any of its subsidiaries who was employed during the
one (1) year period immediately preceding the date on which the Employee's
employment or service relationship with the Company or any of its subsidiaries
was terminated for any reason, (x) encourage for or on behalf of himself or any
such competitor any such officer or employee to terminate his or her
relationship or employment with the Company or any of its subsidiaries, (y)
solicit for or on behalf of himself or any such competitor any client or
supplier of the Company or any of its subsidiaries or (z) divert to any person
(as hereinafter defined) any client or business opportunity of the Company or
any of any of its subsidiaries.
The Board of Directors, with prior notice and adequate disclosure of any
opportunity or proposed activity, shall be entitled to interpret the provisions
of this Agreement and exempt any opportunity or activity of the Employee which
the Board of Directors, in its reasonable judgment, believes is in the interests
of, or not opposed to the interests of, the Company or any of its subsidiaries.
Notwithstanding anything herein to the contrary, the Employee may make
passive investments in any enterprise the shares of which are publicly traded if
such investment constitutes less than three percent (3%) of the equity of such
enterprise.
Neither the Employee nor any business entity controlled by the Employee is
a party to any contract, commitment, arrangement or agreement which could,
following the date hereof, restrain or restrict the Company or any subsidiary of
the Company from carrying on its business or restrain or restrict the Employee
from performing his or her employment obligations, and as of the date of this
Agreement the Employee has no business interests whatsoever in or relating to
the industries in which the Company and its subsidiaries currently engage other
than Employee's interest in the Company and other than interests in public
companies of less than three percent (3%).
For purposes of this Agreement, any reference to the "subsidiaries" of the
Company shall be deemed to include all entities directly or indirectly
controlled by it through an ownership of more than fifty percent (50%) of the
voting interests. As used in this Agreement, the term "person" shall mean an
individual, a corporation, an association, a partnership, a limited liability
company, an estate, a trust, and any other entity or organization.
Section 3. Scope of Agreement. The parties acknowledge that the time,
scope, geographic area and other provisions of this Agreement have been
specifically negotiated by sophisticated parties and agree that (a) all such
provisions are reasonable and fair to the parties hereto under the circumstances
of the transactions contemplated hereby, and (b) are given as an integral and
essential part of the transactions contemplated hereby. The Employee has
independently consulted with Employee's counsel and has been advised in all
respects concerning the reasonableness and fairness of the covenants contained
herein, with specific regard to the business to be conducted by Company and its
subsidiaries, and represents that the Agreement is intended to be, and shall be,
fully enforceable and effective in accordance with its terms.
Section 4. Acknowledgement Regarding Inventions/Receipt of Fair
Compensation. Employee hereby confirms, acknowledges and agrees that all
inventions, modifications, discoveries, designs, developments, improvements,
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processes, know-how, or intellectual property rights whatsoever (collectively,
"Developments") that he or she (either alone or with others) has conceived, made
or reduced to practice at any time or times while employed by the Company or any
of its subsidiaries that:
(a) related to fixtures for and methods of manufacture of fiber amplifiers
and certain aspects of fiber amplifiers, or otherwise relate to the
business of the Company from time to time, or any customer or supplier
to the Company, or any of the products or services being developed,
manufactured or sold by the Company or any of the products which may
be used in connection therewith,
(b) resulted from tasks assigned to the Employee by the Company or any of
its subsidiaries to the business, or
(c) resulted from the use of premises or personal property (whether
tangible or intangible) owned, leased or contracted for or by the
Company or any of its subsidiaries,
are the sole and absolute property of the Company, its successors and assigns.
Employee acknowledges that all Developments were made as a "work for hire" and
all proprietary rights which the Employee may have acquired in such Developments
were assigned to the Company. The Employee hereby acknowledges he or she has not
created any Developments that do not satisfy the provisions of Section 4(a), (b)
or (c). Employee hereby confirms, acknowledges and agrees that Employee has
received mutually-agreed upon compensation from the Company in consideration for
the Company's ownership rights to the Developments set forth in this Section 4
and that such consideration is fair and reasonable.
Employee will make and maintain adequate and current records of and
communicate to the Company (or any persons designated by it) promptly and fully
each Development without publishing the same. Further, Employee will, both
during and after the period of his or her employment by the Company, execute all
appropriate documents and give the Company all assistance it reasonably requires
to perfect, protect and use its rights to the Developments. In the event the
Company is unable, after reasonable effort, to secure Employee's signature on
any letter patent, copyright or other analogous protection relating to a
Development, Employee hereby irrevocably appoints the Company and its duly
authorized officers and agents as Employee's agent and attorney-in-fact, to
execute and file any such application or applications and to do all other
lawfully permitted acts to further the prosecution and issuance of letters
patent, copyright or other protection with the same legal force and effect as if
signed by Employee.
Employee has attached hereto, as Addendum A, a list describing all
Inventions which were made by Employee prior to his employment by the Company
("Prior Inventions"), which belong to Employee and which relate in any way to
the Company's business, products, services, research or development, and which
are not assigned to the Company. If no such list is attached, Employee
represents that there are no such Prior Inventions. If in the course of
employment by the Company, Employee incorporates into a Company product or
process a Prior Invention, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license to make,
have made, modify, use and sell such Prior Invention as part of or in connection
with such product or process.
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Section 5. Use of Voice, Image and Likeness; Publication of Statements.
Employee gives the Company permission to use Employee's voice, image or
likeness, with or without using Employee's name, for the purposes of advertising
and promoting the Company, except to the extent expressly prohibited by law. To
ensure that the Company delivers a consistent message about its products,
services and operations to the public, and further in recognition that even
positive statements may have a detrimental effect on the Company in certain
securities transactions and other contexts, Employee agrees that any statement
about the Company which he or she creates, publishes or posts during Employee's
period of employment and for six (6) months thereafter, on any media accessible
by the public, including but not limited to electronic bulletin boards and
Web-based chat rooms, shall first be reviewed and approved by an officer of the
Company before it is released in the public domain.
Section 6. No Employment Obligation. Employee understands that this
Agreement does not create an obligation on the Company or entity to continue
Employee's employment or to exploit any Developments. Employee acknowledges that
nothing in this Agreement shall interfere with or restrict in any way the rights
of the Company, , to discharge Employee at any time for any reason whatsoever,
with or without cause, except as may be expressly provided in a separate
agreement between the Company and Employee.
Section 7. Certain Remedies; Severability. It is specifically understood
and agreed that any breach of the provisions of this agreement by the Employee
will result in irreparable injury to the Company and its subsidiaries, that the
remedy at law alone will be an inadequate remedy for such breach and that, in
addition to any other remedy it may have, the Company and upon authorization by
the Board of Directors of the Company its subsidiaries shall be entitled to
enforce the specific performance of this agreement by the Employee through both
temporary and permanent injunctive relief without the necessity of proving
actual damages, but without limitation of their right to damages and any and all
other remedies available to them, it being understood that injunctive relief is
in addition to, and not in lieu of, such other remedies.
In the event that any covenant contained in this Agreement shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of its extending for too great a period of time or over too great a geographical
area or by reason of its being too extensive in any other respect, it shall be
interpreted to extend only over the maximum period of time for which it may be
enforceable and/or over the maximum geographical area as to which it may be
enforceable and/or to the maximum extent in all other respects as to which it
may be enforceable, all as determined by such court in such action. The
existence of any claim or cause of action which the Employee may have against
the Company or any of its subsidiaries shall not constitute a defense or bar to
the enforcement of any of the provisions of this Agreement. Employee agrees that
Employee will not assert, and it should not be considered, that any provision
contained in this Agreement prevents him or her from earning a living or is
otherwise void, voidable, or unenforceable or should be voided or held to be
unenforceable.
Section 8. Jurisdiction. The parties hereby irrevocably submit to the
non-exclusive jurisdiction of the courts of The Commonwealth of Massachusetts to
construe and enforce the covenants contained in this Agreement. In the event
that the courts of any state shall hold such covenants unenforceable (in whole
or in part) by reason of the breadth of such scope or otherwise, it
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is the intention of the parties hereto that such determination shall not bar or
in any way affect the right of the Company or upon authorization by the Board of
Directors of the Company any its subsidiaries to the relief provided for herein
in the courts of any other state within the geographic scope of such covenants,
as to breaches of such covenants in such other respective states, the above
covenants as they relate to each state being, for this purpose, severable into
diverse and independent covenants.
Section 9. Notices. Any notice or demand which is required or provided to
be given under this Agreement shall be deemed to have been sufficiently given
and received for all purposes when delivered by hand, telecopy, telex or other
method of facsimile, or five days after being sent by certified or registered
mail, postage and charges prepaid, return receipt requested, or two days after
being sent by overnight delivery providing receipt of delivery, to the following
addresses: if to the Company, 00 Xxx Xxxxxxx Xxxx, Xxxxxx, XX 00000, Facsimile:
000-000-0000, Attn: CEO, or at any other address designated by the Company to
the Employee in writing; and if to the Employee, to the home address of Employee
as designated in the current personnel files maintained by the Company, or at
any other address designated by the Employee to the Company in writing.
Section 10. Miscellaneous. This Agreement shall be governed by and
construed under the laws of The Commonwealth of Massachusetts (without regard to
its conflict of laws principles) and shall not be modified or discharged in
whole or in part except by an agreement in writing signed by the Company and the
Employee. The failure of any of the parties to require the performance of a term
or obligation or to exercise any right under this Agreement or the waiver of any
breach hereunder shall not prevent subsequent enforcement of such term or
obligation or exercise of such right or the enforcement at any time of any other
right hereunder or be deemed a waiver of any subsequent breach of the provision
so breached, or of any other breach hereunder. Employee's obligations under this
Agreement shall survive the termination of Employee's employment regardless of
the manner of such termination and shall be binding upon by Employee's heirs,
executors, administrators and legal representatives. The Company shall have the
right to assign this Agreement to its affiliates, successors and assigns but
this Agreement may not be assigned by the Employee. This Agreement supersedes
all prior understandings and agreements between the parties relating to the
subject matter hereof.
Section 11. No Conflicting Agreements. Employee warrants that Employee is
not bound by the terms of a confidentiality agreement or other agreement with a
third party that would conflict with Employee's obligations hereunder.
Section 12. Third Party Beneficiaries. The parties hereto acknowledge and
agree that the Investors named in that certain Stock Purchase Agreement dated
August 30, 2000 are third party beneficiaries of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Confidentiality,
Non-Competition Agreement and Confirmatory Assignment Agreement under seal as of
the date first set forth above.
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COMPANY:
IPG PHOTONICS CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EMPLOYEE:
Name:
----------------------------------
Section 2(a) Non-Competition
Limitation: ____________________________________________________________________
________________________________________________________________________________
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[FOR USE IN CALIFORNIA, ILLINOIS,
KANSAS, MINNESOTA AND WASHINGTON ONLY]
ADDENDUM TO CONFIDENTIALITY AGREEMENT
This addendum is made and entered into this ___ day of _________, by and
between IPG Photonics Corporation, its subsidiaries and affiliates, with an
office and place of business at 00 Xxx Xxxxxxx Xxxx, Xxxxxx, XX 00000 (the
"Company") and __________________, residing at _______________________________
("Employee") and incorporated by reference into the Confidentiality,
Non-Competition and Confirmatory Assignment Agreement dated ____________________
between the Company and Employee.
Employee understands and agrees that the provisions of paragraph 4 of the
Confidentiality Agreement, on assignment of inventions do not apply to an
invention for which no equipment, supplies, facility or trade-secret information
of the Company was used and which was developed entirely on the Employee's own
time and (1) which does not relate (a) directly to the business of the Company
or (b) to the Company's demonstrably anticipated research or development or (2)
which does not result from any work performed by the Employee for the Company.
Attest: IPG PHOTONICS CORPORATION
------------------------------------- ----------------------------------------
Corporate Officer
In the presence of:
------------------------------------- ----------------------------------------
Employee
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