EMPLOYMENT AGREEMENT
Exhibit
10.1
This
Employment Agreement ("Agreement"), executed on this 9th day of
May, 2008, by and between IPG Photonics Corporation, a Delaware
corporation having an office at 00 Xxx Xxxxxxx Xxxx, Xxxxxx, XX 00000 (the
"Corporation"), and Xxxxxxxx X. Xxxxxxxxx ("Executive"). The
Corporation and Executive are referred to jointly below as the
"Parties."
WHEREAS,
the Corporation and Executive previously entered into an employment agreement
dated March 1, 2006 (the "Prior Agreement");
WHEREAS,
the Corporation and Executive desire to amend and restate the Prior Agreement to
comply with Section 409A of the Internal Revenue Code of 1986, as amended (the
"Code"); and
WHEREAS,
the Corporation desires to continue to employ Executive and Executive desires to
continue his employment with the Corporation on the terms and conditions set
forth in this Agreement.
NOW,
THEREFORE, in consideration of the employment of Executive, the mutual
terms and conditions set forth below, and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
1. Employment. Executive
will be employed by the Corporation in the position of Chief Executive
Officer. Executive will report to the Corporation’s Board of
Directors (the "Board"). Executive's primary responsibility will be
executive management of the business and affairs of the Corporation and its
subsidiaries. Executive will carry out such duties as shall be
assigned from time to time by the Corporation’s Board of Directors, subject to
applicable laws, and ethical duties. During the Employment Period (as
defined below), Executive shall devote Executive's reasonable best efforts,
energies and abilities and Executive's full business time, skill and attention
to the business and affairs of the Corporation, and shall act at all times
according to the highest professional standards, for the purpose of advancing
the business of the Corporation.
2. Term. Subject
to the Termination provisions below, Executive's employment by the Corporation
shall commence on the first day of the fiscal quarter including the date of
execution of this Agreement (the "Effective Date") and shall terminate at 5:00pm
E.S.T. on December 31, 2010 (the "Employment Period"); provided that, in the
event of a "Change of Control" of the Corporation (as such term is defined in
the Corporation's 2006 Incentive Compensation Plan in effect on the Effective
Date (the "Equity Plan")), the Employment Period automatically will be extended
until the second anniversary of the Change in Control.
3. Compensation.
(i) Salary. The
Corporation shall pay to Executive an annual base salary ("Base Salary") of
three hundred and eighty thousand dollars (U.S. $380,000) effective as of the
Effective Date. The Corporation will pay Executive's Base Salary in
equal installments in accordance with the Corporation's standard payroll
policies and schedule, subject to tax and elective withholding and
deductions. Thereafter, the Board, or such committee of the Board as
is responsible for setting the compensation of senior executive officers, shall
review Executive's performance and Base Salary annually in January of each year,
in light of competitive data, the Corporation's performance, and Executive's
performance, and determine whether to increase Executive's Base Salary on a
prospective basis. The first review shall be in January
2009. Such adjusted annual salary then shall become Executive's "Base
Salary" for purposes of this Agreement.
(ii) Annual
Bonus. Executive will be eligible for an annual cash bonus
(the "Bonus"), based on performance, and calculated as a percentage of
Executive's Base Salary. The Corporation intends that the Bonus will
be paid within 2½ months of the close of the calendar year in which Executive
becomes vested in such Bonus, to qualify for the short-term deferral exception
to Code Section 409A.
(iii) Equity
Compensation. Executive will be eligible to participate in any
long-term incentive plans, and/or equity-based compensation plans established or
maintained by the Corporation for its senior executive officers or employees,
including, but not limited to, the Equity Plan.
4. Benefits.
(i) Executive
shall be entitled to the extent eligible to participate in any benefit plans as
may be adopted and modified by the Corporation from time to time, including
without limitation health, dental and medical plans, life and disability
insurance, paid time off, holiday, and retirement plans. The benefits
available to Executive shall be no less favorable than those available to other
executives at similar levels within the organization or to the employees of the
Corporation at the location where Executive works. Benefits provided
under this Agreement shall be subject to the terms and conditions of any
applicable benefit plan, including any eligibility and vesting requirements, as
such plans may be in effect from time to time.
(ii) Executive
shall be entitled to four weeks vacation each year. The maximum
number of accrued vacation hours that Executive can have at any point in time is
equal to the total vacation hours earned in the last twelve months, plus one
week of vacation carried over from the prior twelve months of
service.
5. Other
Activities. The employment of Executive shall be on a
full-time basis, but Executive may be an investor or otherwise have an interest
in or serve on the board of directors or advisory board to other businesses,
partnerships and entities so long as the other activities of Executive do not
materially interfere with the performance of Executive's duties to the
Corporation, and so long as such other activities do not cause Executive to
violate the Restrictive Covenants incorporated herein in Section 12 of this
Agreement, and so long as Executive discloses all such activities to the Chief
Executive Officer and the Board. Nothing in this provision or this
Agreement limits or restricts Executive's duties and obligations, including the
duty of loyalty, that arise under the law.
6. Termination by the
Corporation. The Corporation may terminate the Employment
Period:
(i) without
Cause (as defined below) by giving Executive sixty (60) days' prior written
notice, or
(ii) for
Cause (as defined below). "Cause" shall mean: (A) an act of fraud,
embezzlement or theft by Executive in connection with Executive's duties or in
the course of Executive's employment with the Corporation; (B) Executive's
intentional wrongful damage to the property of the Corporation; (C) Executive's
intentional breach of Section 12 hereof while Executive remains in the employ of
the Corporation; (D) an act of Gross Misconduct (as defined below); or (E) a
felony conviction or a conviction for a misdemeanor involving moral turpitude;
and, in each case, the reasonable, good faith determination by the Board as
hereafter provided that any such act shall have been materially harmful to the
Corporation. For purposes of this Agreement, "Gross Misconduct" shall
mean a willful or grossly negligent act or omission which has or will have a
material and adverse impact on the business or reputation of the Corporation, or
on the business of the Corporation's customers or suppliers as such relate to
the Corporation. Notwithstanding the foregoing, Executive shall not
be deemed to have been terminated for "Cause" hereunder unless and until there
shall have been delivered to Executive a copy of a resolution duly adopted by
the affirmative vote of a majority of the independent directors of the Board
then in office at a meeting of the Board called and held for such purpose,
finding that, Executive has committed an act set forth above in this Section
6. Nothing herein shall limit Executive's right or Executive's
beneficiaries' right to contest the validity or propriety of any such
determination. In addition, Executive's employment shall be deemed to have
terminated for Cause if, based on facts and circumstances discovered after
Executive's employment has terminated, the Board determines in good faith after
appropriate investigation that Executive committed an act during the Employment
Period that would have justified a termination for Cause. In
addition, Executive’s employment shall be deemed to have terminated for Cause,
if based on facts and circumstances discovered after Executive’s employment has
terminated, the Board determines in reasonable good faith, within one year after
Executive’s employment terminated, and after appropriate investigation and an
opportunity for Executive to be interviewed (with or without counsel as
Executive may determine) by a subcommittee of the independent Board members or
its representative, that Executive committed an act during the Employment Period
that would have justified a termination for Cause.
7. Termination by
Executive. Executive may terminate the Employment Period (i)
by giving the Corporation sixty (60) days' prior written notice, or (ii) for
Good Reason (as defined below); provided, however, that in the event Executive
terminates the Employment Period for Good Reason, Executive must give the
Corporation written notice of his intent to terminate for Good Reason within
sixty (60) days of the occurrence of the event that allegedly constitutes Good
Reason. The Corporation shall have a right to cure the breach for a
period of thirty (30) days after notice from Executive of his intention to
terminate for Good Reason. In the event of termination by notice
under the preceding subsection (i), the Corporation in its discretion may elect
a termination date that is earlier than the conclusion of the sixty (60) day
notice period, but in the event of such election the termination shall still be
deemed a voluntary termination by Executive under this Section. "Good
Reason" means the occurrence of any of the following events without Executive's
express written consent:
(a) The
material reduction of Executive's authorities, duties, or responsibilities with
the Corporation;
(b) A
material reduction by the Corporation of Executive's Base Salary, other than a
reduction approved by the Board that similarly applies to all executive officers
of the Corporation, provided that a reduction in Base Salary shall not exceed
more than 10% of then Base Salary;
(c) A
relocation of the offices of Executive to a place greater than thirty-five (35)
miles in distance from the current executive offices of the Corporation in
Oxford, MA;
(d) A
material reduction in the budget over which Executive retains authority;
or
(e) Any
action or inaction that constitutes a material breach by the Corporation of this
Agreement.
The
Corporation shall have no obligations to Executive after Executive's last day of
employment following termination of employment under this Section, except as
specifically set forth in this Agreement or under any applicable plans, programs
or arrangements of the Corporation including, without limitation, the
Corporation’s certificate of incorporation or By-Laws, the Equity Plan and any
agreements thereunder and the indemnification agreement described in Section
4.
8. Automatic
Termination. Notwithstanding the provisions of Section 2,
Executive's employment shall automatically terminate upon Executive's death or
Disability (as defined below). Executive shall be deemed to have a
"Disability" for purposes of this Agreement if Executive is unable to
substantially perform, by reason of physical or mental incapacity, Executive's
duties or obligations under this Agreement, with or without reasonable
accommodation as defined in the Americans with Disabilities Act and implementing
regulations, for a period of one hundred and eighty (180) consecutive days in
any 360-day period. The Board shall determine, according to the facts
then available, whether and when the disability of Executive has occurred and
shall state that date of termination in the Notice of
Termination. Such determination shall be made by the Board in the
good faith exercise of its reasonable discretion.
9. Expiration of
Agreement. The Employment Period shall terminate in accordance
with Section 2 if not earlier terminated pursuant to Section 6, 7 or
8.
10. Certain Obligations of the
Corporation Following Termination of the Employment
Period. Following termination of the Employment Period under
the circumstances described below, the Corporation will pay to Executive the
following compensation and provide the following benefits in addition to any
benefits to which Executive may be entitled by law in full satisfaction and
final settlement of any and all claims and demands that Executive or the
Corporation may have against the other under this Agreement:
(i) Termination of Employment
for Any Reason. In the event of a termination of the
Employment Period for any reason, the Corporation shall pay or provide Executive
(a) any unpaid Base Salary through the date of termination and (b) any benefits
(including, without limitation, any unused vacation accrued in accordance with
Section 4(ii)) accrued, earned or vested, and any unreimbursed expenses
incurred, up to and including the effective date of such termination to which
Executive may be entitled under the terms of any applicable arrangement, plan or
program (collectively, the "Accrued Amounts").
(ii) Without Cause by the
Corporation or for Good Reason by Executive. In the event that
the Employment Period is terminated by the Corporation without Cause pursuant to
Section 6(i) hereof or by Executive for Good Reason pursuant to Section 7
hereof, Executive shall be entitled to the following payments:
(a) The
Accrued Amounts, as soon as practicable following the date of
termination;
(b) Any
bonus that has been actually earned as of or prior to the termination date, but
has not been paid, payable in a single lump sum as soon as practicable following
the date of termination;
(c) A
pro rata portion of the amount, if any, Executive would have received pursuant
to Section 3(ii) for the year in which Executive's employment
terminated. The Corporation shall determine what annual bonus, if
any, Executive would have earned had he been employed through the end of the
applicable period (the "Base Incentive
Amount"), in accordance with the methods used to calculate annual bonuses
for the Corporation's other similarly-situated executives. The pro
rata portion to be paid pursuant to this paragraph shall be
determined by multiplying the Base Incentive Amount by a fraction, the numerator
of which is the number of days from the beginning of the applicable annual
period in which the termination occurred through the date of termination and the
denominator of which is 365. Any payment due under this paragraph
shall be paid at the time payment is made to other similarly-situated executives
of the Corporation; provided, however, that such payment shall be made in a
single lump sum payment no later than the last day of the calendar year
following the year in which Executive's employment terminates;
(d) Continuing
payments of Base Salary, payable in accordance with regular payroll practices of
the Corporation, for twenty-four months following the date of
termination;
(e) Continued
coverage under the Corporation's medical and dental plans for twelve months
following the date of termination. Thereafter, Executive may elect
COBRA continuation coverage at Executive's expense.
In the
event that the Employment Period is terminated by the Corporation without Cause
pursuant to Section 6(i) hereof or by Executive for Good Reason pursuant to
Section 7 hereof, for purposes of determining the vested portions of Executive's
stock options and any other equity compensation awards granted on or after the
date hereof, Executive shall be deemed to have terminated employment twelve (12)
months following the date of Executive's actual termination of
employment.
In the
event that the Employment Period is terminated by the Corporation without Cause
pursuant to Section 6(i) hereof or by Executive for Good Reason pursuant to
Section 7 hereof and such termination occurs within twenty-four (24) months
following a Change of Control (as defined in the Equity Plan), all stock options
and any other equity compensation awards granted on or after this date hereof
and held by Executive on the date of termination shall immediately vest and
become non-forfeitable.
(iii) Termination by Executive
Without Good Reason or by the Corporation for Cause. In the
event the Employment Period is terminated by Executive pursuant to Section 7(i)
hereof without Good Reason or by the Corporation pursuant to Section 6(ii)
hereof for Cause, Executive shall be entitled to no further compensation or
other benefits under this Agreement except for the Accrued Amounts, payable in a
single lump sum as soon as practicable following the date of
termination.
(iv) Death;
Disability. In the event that the Employment Period is
terminated by reason of Executive's death or for Disability, Executive or
Executive's estate, as the case may be, shall be entitled to the following
payments:
(a) The
Accrued Amounts, as soon as reasonably practicable following the date of
termination;
(b) Any
bonus that has been actually earned as of or prior to the termination date, but
has not been paid, payable in a single lump sum as soon as practicable following
the date of termination; and
(c) The
amount payable, if any, as determined pursuant to Section 10(ii)(c), at the time
specified therein.
In the
event that the Employment Period is terminated by reason of Executive’s death or
for Disability, the treatment of any equity compensation awards held by
Executive shall be governed by the terms of the plan or agreement under which
such awards were granted.
(v) Expiration. In
the event the Employment Period terminates due to the expiration of the
Employment Period and the Corporation does not offer Executive continued
employment in the same or a substantially similar position as, or in a higher
position than, his position on the date of the expiration of the Employment
Period, and at a compensation level that is the same or a substantially similar
to that in effect on the date of the expiration of the Employment Period,
Executive shall be entitled to the following payments:
(a) The
Accrued Amounts, as soon as reasonably practicable following the date of
termination;
(b) Any
bonus that has been actually earned as of or prior to the termination date, but
has not been paid, payable in a single lump sum as soon as practicable following
the date of termination;
(c) The
amount payable, if any, as determined pursuant to Section 10(ii)(c) at the time
specified therein; and
(d) Continuing
payments of Base Salary, payable in accordance with regular payroll practices of
the Corporation, for twenty-four months following the date of
termination.
Except as
provided in Section 10(i), Executive shall not be entitled to payment of the
amounts described in this subsection (v) if the Corporation offers Executive
continued employment in the same or a substantially similar position as, or in a
higher position than, his position on the date of expiration of the Employment
Period, and at a compensation level that is the same or a substantially similar
to that in effect on the date of the expiration of the Employment Period, and
Executive declines the offer.
(vi) No Mitigation or
Offset. In the event of any termination of Executive’s
employment under this Section 10, Executive shall be under no obligation to seek
other employment or otherwise mitigate his damages, and there shall be no offset
against amounts due to Executive under this Agreement on account of any
remuneration or benefit attributable to any subsequent employment obtained by
Executive.
11. Nature of
Payments. Upon termination of employment pursuant to Sections
6, 7, 8 or 9, Executive will be released from any duties and obligations to the
Corporation set forth in this Agreement (except the duties and obligations under
the Restrictive Covenants and as set forth in Section 12 hereof) and the
obligations of the Corporation to Executive under this Agreement will be as set
forth in Section 10.
12. Restrictive
Covenants. In consideration of the benefits under this
Agreement, Executive has executed and delivered a Confidentiality,
Non-Competitive and Confirmatory Assignment Agreement, dated the date of this
Agreement (together with any similar or successor agreements, referred to herein
as the “Restrictive Covenants”), and Executive agrees that, as part of this
Agreement, Executive shall comply with the terms of the Restrictive
Covenants. Notwithstanding Section 10(iii) of this Agreement, if (a)
Executive terminates employment other than for Good Reason and, thus, is not
entitled to the payments and benefits under Section 10(ii) of this Agreement,
and (b) (i) Executive receives a written offer of employment during the
Non-Competition Period set forth in Section 2(a) of the Restrictive Covenant, or
(ii) Executive is not able to find suitable employment in his field in relation
to his skills, position and base salary, which employment would not
contravene Section 2(a) of the Restrictive Covenant, after a good faith effort
by Executive to search for such employment, and (iii) the Company notifies
Executive that it intends to enforce the non-compete provisions of such Section
2(a) against Executive, then the Company shall pay to Executive an amount equal
to the semi-monthly amount of the Executives’ Base Salary for each semi-monthly
payroll period beginning (A) on the effective date of the written offer of
employment referred to above or (B) during the period in which Executive is not
able to find suitable employment, and ending on the earliest to occur of (I) the
end of the Non-Competition Period set forth in such Section 2(a), or (II) the
date as of which Executive begins new employment with an employer, which
employment would not contravene Section 2(a) of the Restrictive
Covenant. For the avoidance of doubt, the non-competition and other
provision of the Restrictive Covenants in all events shall continue to apply
until the end of the Non-Competition Period set forth in Section 2(a) of the
Restrictive Covenant, regardless of the Executive’s new employment with an
employer that would not contravene Section 2(a) of the Restrictive Covenant, the
subsequent termination of such employment or any other event.
13. Release. Any
and all amounts payable and benefits or additional rights provided pursuant to
this Agreement beyond Accrued Amounts shall only be payable if Executive
delivers to the Corporation a release of claims of Executive occurring up to the
release date, in the form attached hereto as Exhibit A, within twenty-one (21)
calendar days after presentation thereof by the Corporation to
Executive. The Corporation shall present such release to Executive
within thirty (30) days of the date Executive’s employment
terminates. Payment of the amounts described in this Section shall
commence no earlier than eight (8) days following the date on which Executive
delivers to the Corporation an executed and enforceable release as described
herein.
14. Indemnification. The
Corporation shall maintain a directors' and officers' liability insurance policy
covering Executive on the same basis as in effect for other senior executive
employees, and shall provide indemnity to Executive by a separate, written
indemnification agreement.
15. Notices. Any
and all notices provided for herein shall be in writing and shall be delivered
by certified mail, return receipt requested or in person. Notice
shall be deemed to have been given when notice is received by the party on whom
the notice was served. Notice to the Corporation shall be addressed
to the Corporation at its principal office, and notice to Executive shall be
addressed to Executive at Executive's last address as shown on the records of
the Corporation.
16. Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with the substantive laws of the Commonwealth of
Massachusetts, without regard to its internal conflicts of law
provisions.
17. Severability. In
the event that any provision of this Agreement shall be determined to be
invalid, illegal or otherwise unenforceable or contrary to law or public policy,
the enforceability of the other provisions in this Agreement shall not affected
thereby.
18. Assignment. Executive
recognizes that this is an agreement for personal services and that Executive
may not assign this Agreement. The Agreement shall inure to the
benefit of and be binding upon the Corporation's successors and
assigns.
19. Entire
Agreement/Amendment. This Agreement and the Restrictive
Covenant referred to in Section 12 constitute the entire agreement between the
Parties with respect to the subject matter hereof and supersedes any and all
other agreements, either oral or in writing (including the Prior Agreement),
among the Parties hereto with respect to the subject matter
hereof. This Agreement may not be amended except by written agreement
signed by both Parties.
20. Execution in
Counterparts. This Agreement may be executed in one or more
counterparts, and by the different Parties in separate counterparts, each of
which shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement (and all signatures need not appear on any
one counterpart), and this Agreement shall become effective when one or more
counterparts has been signed by each of the Parties hereto and delivered to each
of the other Parties hereto.
21. Waiver. The
failure of either of the Parties to at any time enforce any of the provisions of
this Agreement shall not be deemed or construed to be a waiver of any such
provision, nor to in any way affect the validity of this Agreement or any
provision hereof or the right of either of the Parties to enforce each and every
provision of this Agreement. No waiver of any breach of any of the
provisions of this Agreement shall be effective unless set forth in a written
instrument executed by the party against whom or which enforcement of such
waiver is sought, and no waiver of any such breach shall be construed or deemed
to be a waiver of any other or subsequent breach.
22. Capacity. Executive
and the Corporation hereby represent and warrant to the other
that: (i) Executive or the Corporation has full power, authority and
capacity to execute and deliver this Agreement, and to perform Executive's or
the Corporation's obligations hereunder; (ii) such execution, delivery and
performance will not (and with the giving of notice or lapse of time or both
would not) result in the breach of any agreements or other obligations to which
Executive or the Corporation is a party or Executive or the Corporation is
otherwise bound; and (iii) this Agreement is Executive's or the Corporation's
valid and binding obligation in accordance with its terms.
23. Arbitration. Any
controversy or claim arising out of or relating to this Agreement or the breach
thereof or otherwise arising out of Executive's employment or the termination of
that employment (including, without limitation, any claims of unlawful
employment discrimination whether based on age or otherwise) shall, to the
fullest extent permitted by law, be settled by arbitration in any forum and form
agreed upon by the parties or, in the absence of such an agreement, under the
auspices of the American Arbitration Association ("AAA") in Worcester,
Massachusetts in accordance with the Employment Dispute Resolution Rules of the
AAA, including, but not limited to, the rules and procedures applicable to the
selection of arbitrators. In the event that any person or entity
other than Executive or the Employer may be a party with regard to any such
controversy or claim, such controversy or claim shall be submitted to
arbitration subject to such other person or entity's
agreement. Judgment upon the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof. This Section 23
shall be specifically enforceable. Notwithstanding the foregoing,
this Section 23 shall not preclude either party from pursuing a court action for
the sole purpose of obtaining a temporary restraining order or a preliminary
injunction in circumstances in which such relief is appropriate; provided that
any other relief shall be pursued through an arbitration proceeding pursuant to
this Section 23. Punitive and consequential damages shall not be
permitted as an award and each party shall bear the fees and expenses of its own
counsel and expert witnesses.
24. Consent to
Jurisdiction. To the extent that any court action is permitted
consistent with or to enforce Section 23 of this Agreement, the parties hereby
consent to the jurisdiction of the Superior Court of the Commonwealth of
Massachusetts and the United States District Court for the District of
Massachusetts. Accordingly, with respect to any such court action,
Executive (a) submits to the personal jurisdiction of such courts; (b) consents
to service of process; and (c) waives any other requirement (whether imposed by
statute, rule of court, or otherwise) with respect to personal jurisdiction or
service of process.
25. Code Section
409A. This Agreement is intended to comply with Code Section
409A and the interpretative guidance thereunder, including the exceptions for
short-term deferrals, separation pay arrangements, reimbursements, and in-kind
distributions, and shall be administered accordingly. The Agreement
shall be construed and interpreted with such intent. Each payment
under Section 10 of this Agreement or any Corporation benefit plan is intended
to be treated as one of a series of separate payments for purposes of Code
Section 409A and Treas. Reg. §1.409A-2(b)(2)(iii). Any payment under
Section 10 that does not qualify as a short-term deferral under Code Section
409A and Treas. Reg. §1.409A-1(b)(4) or a limited payment under Treas. Reg.
§1.409A-1(b)(9)(v)(D) (or any similar or successor provisions) will not be made
before the date that is six (6) months after the date of termination or, if
earlier, the date of Executive's death (the "Six Month Delay Rule") if Executive
is a Specified Employee (as defined below) as of his Termination of
employment. Payments to which Executive otherwise would be entitled
during the first six months following his Termination of employment (the
"Six-Month Delay") will be accumulated and paid on the first day of the seventh
month following his Termination of employment. Notwithstanding the
Six-Month Delay Rule, to the maximum extent permitted under Code Section 409A
and Treas. Reg. §1.409A-1(b)(9)(iii) (or any similar or successor provisions),
during the Six-Month Delay and as soon as practicable after satisfaction of
Section 13 of this Agreement, the Corporation will pay Executive an amount equal
the lesser of (A) the total severance scheduled to be provided under Section 10
above, or (B) two times the lesser of (1) the maximum amount that may be taken
into account under a qualified plan pursuant to Code Section 401(a)(17) for the
year in which Executive's Termination of employment occurs, and (2) the sum of
Executive's annualized compensation based upon the annual rate of pay for
services provided to the Corporation for the taxable year of Executive preceding
the taxable year of Executive in which his Termination of employment occurs;
provided that amounts paid under this sentence will count toward, and will not
be in addition to, the total payment amount required to be made to Executive by
the Corporation under Section 10 above. For purposes of this Agreement, the term
"Specified Employee" has the meaning given to that term in Code Section 409A and
Treas. Reg. §1.409A-1(i) (or other similar or successor
provisions). The Corporation's "specified employee identification
date" (as described in Treas. Reg. §1.409A-1(i)(3) or any similar or successor
provisions) will be December 31 of each year, and the Corporation's "specified
employee effective date" (as described in Treas. Reg. §1.409A-1(i)(4) or any
similar or successor provisions) will be April 1 of each succeeding
year.
IN
WITNESS WHEREOF, this Employment Agreement has been duly
executed:
IPG
PHOTONICS CORPORATION
By:
________________________________ /s/
Xxxxxxxx X.
Xxxxxxxxx
Its: Vice
President, General Counsel and
Secretary Executive
EXHIBIT
A
RELEASE AND WAIVER
AGREEMENT
This
Release and Waiver Agreement ("Agreement") is entered into this _____ day of
______________________, _____ by and between IPG Photonics Corporation, a
Delaware corporation (the "Corporation") and [insert executive name]
(hereinafter "Executive").
WHEREAS,
Executive's employment with the Corporation is terminated effective
__________________, 20__ ("Termination Date") and the Corporation and Executive
have voluntarily agreed to the terms of this Agreement in exchange for severance
benefits under the Employment Agreement between the parties effective [DATE], 2008 ("Employment
Agreement"), to which Executive otherwise would not be entitled;
WHEREAS,
accordingly the Corporation has determined that Executive will receive severance
pay if Executive executes and complies with the terms of this Agreement;
and
WHEREAS,
Executive acknowledges that the consideration received by Executive under the
terms of this Agreement and the Employment Agreement for the release and waiver
contained herein is in addition to any consideration the Corporation is
otherwise required to provide Executive.
NOW,
THEREFORE, in consideration of the promises and the mutual covenants and
agreements set forth below, the parties hereby acknowledge and agree as
follows:
1. Severance. In
consideration for Executive's agreements contained herein and Executive's
compliance with Executive's continuing obligations under the Employment
Agreement, including his obligations under Section 12, the Corporation will pay
Executive the applicable severance provided in Section 10 [Note—actual agreement to specify the
applicable subsections of Section 10(d)] of the Employment
Agreement. Except as specifically provided in this Agreement, the
Employment Agreement and any applicable plans, programs or arrangements of the
Corporation including, without limitation, the Corporation’s certificate of
incorporation or By-laws, the Corporation’s 2006 Incentive Compensation Plan and
any agreements thereunder and the indemnification agreement dated ____ between
the Corporation and Executive (the “Indemnification Agreement”), Executive shall
not be entitled to any other payment, benefits or other consideration from the
Corporation.
2. Waiver and
Release. In consideration for the payments and benefits to be
provided to Executive as set forth herein and the Employment Agreement,
Executive, himself and for any person or entity that may claim by him or through
him, including Executive's heirs, executors, administrators and assigns, hereby
knowingly, irrevocably, unconditionally and voluntarily waives, releases and
forever discharges the Corporation and each of its individual or collective
past, present and future parent, subsidiaries, divisions and affiliates, its and
their joint ventures and its and their respective directors, officers,
associates, employees, representatives, partners, consultants insurers,
attorneys, administrators, accountants, executors, heirs, and agents, and each
of its and their respective predecessors, successors and assigns and all persons
acting by, through or in concert with any of them (hereinafter collectively
referred to as "Releasees"), from any and all claims, causes of action or
liabilities relating to Executive’s employment with the Corporation or the
termination thereof, known or unknown, suspected or unsuspected, arising from
any omissions, acts or facts that have occurred up until and including the date
the Executive executes this Agreement which have been or could be asserted
against the Releasees, including but not limited to:
(a) causes
of action or liabilities relating to Executive’s employment with the Corporation
or the termination thereof arising under Title VII of the Civil Rights Act, the
Age Discrimination in Employment Act (the "ADEA"), the Employee Retirement
Income Security Act, the Worker Adjustment and Retraining Notification Act, the
American with Disabilities Act, the Equal Pay Act, the Family and Medical Leave
Act, the Illinois Human Rights Act, and the Delaware General Corporations Act as
such Acts have been amended, and/or any other foreign, federal, state,
municipal, or local employment discrimination statutes (including, but not
limited to, claims based on age, sex, attainment of benefit plan rights, race,
religion, national origin, marital status, sexual orientation, ancestry,
harassment, parental status, handicap, disability, retaliation, and veteran
status); and/or
(b) causes
of action or liabilities related to Executive’s employment with the Corporation
or the termination thereof arising under any other federal, state, municipal, or
local statute, law, ordinance or regulation; and/or
(c) causes
of action or liabilities relating to rights to or claims for pension,
profit-sharing, wages, bonuses or other compensation or benefits;
and/or
(d) any
other cause of action relating to Executive’s employment with the Corporation or
the termination thereof including, but not limited to, actions seeking severance
pay, except as provided herein, actions based upon breach of contract, wrongful
termination, defamation, intentional infliction of emotional distress, tort,
personal injury, invasion of privacy, defamation, discrimination, retaliation,
promissory estoppel, fraud, violation of public policy, negligence and/or any
other common law, or other cause of action whatsoever arising out of or relating
to employment with and/or separation from employment with the Corporation and/or
any of the other Releasees.
Nothing
herein shall limit or impede Executive's right to file or pursue an
administrative charge with, or participate in, any investigation before the
Equal Employment Opportunity Commission ("EEOC"), or any other local, state or
federal agency, and/or any causes of action which by law Executive may not
legally waive. Executive agrees, however, that if Executive or anyone
acting on Executive's behalf, brings any action concerning or related to any
cause of action or liability released in this Agreement, Executive waives any
right to, and will not accept, any payments, monies, damages, or other relief,
awarded in connection therewith.
Nothing
herein shall constitute a waiver or release of any of Executive’s rights under
this Agreement, any other applicable plans, programs or arrangements of the
Corporation including, without limitation, the Corporation’s certificate of
incorporation or By-laws, the Corporation’s 2006 Incentive Compensation Plan and
any agreements thereunder, or under the Indemnification Agreement.
Executive
expressly waives the benefits of any statute or rule of law that, if applied to
this Agreement, would otherwise exclude from its binding effect any claims
against the Corporation not now known by Executive to exist.
3. Nondisparagement. Executive
agrees that he will not directly or indirectly, individually or in concert with
others, engage in any conduct or make any statement (whether oral or written)
calculated or likely to have the effect of undermining, disparaging or otherwise
reflecting poorly upon the Corporation or its good will, products or business
opportunities, or in any manner detrimental to the Corporation. In
addition, Executive agrees not to make any disparaging remarks regarding any
related, affiliated or subsidiary organizations of the
Corporation. The Corporation agrees to use its reasonable best
efforts to cause its officers and directors not to, directly or indirectly,
individually or in concert with others, engage in any conduct or make any
statement (whether oral or written) calculated or likely to have the effect of
undermining, disparaging or otherwise reflecting poorly upon Executive or in any
manner detrimental to Executive.
4. Cause of Action. As
used in this Agreement, the phrase "cause of action" includes all claims,
covenants, warranties, promises, agreements, undertakings, actions, suits,
counterclaims, causes of action, complaints, charges, obligations, duties,
demands, debts, accounts, judgments, costs, expenses, losses, damages and
liabilities, of whatsoever kind or nature, in law, equity or
otherwise.
5. No Assignment of Causes of
Action. Executive represents and warrants that he has not
filed or caused to be filed against the Releasees any claims, actions or
lawsuits. Executive further represents and warrants that he has not
sold, assigned, transferred, conveyed or otherwise disposed of to any third
party, by operation of law or otherwise, any claim of any nature whatsoever
relating to any matter covered by this Agreement.
6. Representations of the
Corporation. The Corporation represents that it is not
presently aware of any cause of action that it or any of the other Releasees
have against Executive as of the date hereof. The Corporation
acknowledges that the release granted by the Executive in Paragraph 2 above will
be null and void in the event the Corporation subsequently seeks to treat
Executive’s termination of employment as “for Cause” under the last sentence of
Section 6(ii) of the Employment Agreement.
7. Notice to Seek Counsel,
Consideration Period, Revocation Period. Executive
acknowledges that Executive has been advised in writing hereby to consult with
an attorney before signing this document and that Executive has had at least
twenty-one (21) days after receipt of this document to consider whether to
accept or reject this Agreement. Executive understands that Executive
may sign this Agreement prior to the end of such twenty-one (21) day period, but
is not required to do so. Under ADEA, Executive has seven (7) days
after Executive signs this Agreement to revoke it. Such revocation
must be in writing and delivered either by hand or mailed and postmarked within
the seven (7) day period. If sent by mail, it is requested that it be
sent by certified mail, return receipt requested to the Corporation's General
Counsel Office at
00 Xxx Xxxxxxx Xxxx, Xxxxxx, XX 00000. If Executive revokes this
Agreement as provided herein, it shall be null and void and Executive shall not
be entitled to receive the payments as described in the first sentence of
Paragraph 1 herein. If Executive does not revoke this Agreement
within seven (7) days of signing it, this Agreement shall become enforceable and
effective on the seventh (7th) day after the Executive signs this Agreement
("Effective Date").
8. Governing Law;
Disputes. Except as provided in Section 23 of the Employment
Agreement, or as provided below, jurisdiction and venue over disputes with
regard to this Agreement shall be exclusively in the courts of the State of
Massachusetts or the United States District Court for the District of
Massachusetts. This Agreement shall be construed and interpreted in
accordance with and governed by the laws of the State of Massachusetts, without
regard to the choice of laws provisions of such laws. The parties
agree that any action brought by a party to enforce or interpret this Agreement
shall be brought in a State or Federal Court sitting in Boston, Massachusetts;
except that an action by the Corporation to enforce its rights under Section 12
the Employment Agreement may also be brought in Executive's state of residency
or any other forum in which the Executive is subject to personal
jurisdiction. In addition, Executive and the Corporation specifically
consent to personal jurisdiction in the State of Massachusetts for purposes of
this Agreement.
9. Amendment;
Waiver. No provision of this Agreement may be modified, waived
or discharged unless such waiver, modification or discharge is agreed to in
writing signed by Executive and the Corporation. This Agreement shall
be enforced in accordance with its terms and shall not be construed against
either party.
10. Severability. The
parties agree that if any provision, section, subsection or other portion of
this Agreement shall be determined by any court of competent jurisdiction to be
invalid, illegal or unenforceable in whole or in part and such determination
shall become final, such provision or portion shall be deemed to be severed or
limited, but only to the extent required to render the remaining provisions and
portion of this Agreement enforceable. This Agreement as thus amended
will remain in full force and effect and will be binding on the parties and will
be enforced so as to give effect to the intention of the parties insofar as that
is possible. In addition, the parties hereby expressly empower a
court of competent jurisdiction to modify any term or provision of this
Agreement to the extent necessary to comply with existing law and to enforce
this Agreement as modified.
11. Enforcement. This
Agreement may be pleaded as a full and complete defense and may be used as the
basis for an injunction against any action at law or proceeding at equity, or
any private or public judicial or non-judicial proceeding instituted,
prosecuted, maintained or continued in breach hereof.
12. No Enlargement of Employee
Rights. Executive acknowledges that, except as expressly provided in this
Agreement, any employment or contractual relationship between him and the
Corporation is terminated, and that he has no future employment or contractual
relationship with the Corporation other than the contractual relationship
created by this Agreement, the Employment Agreement, any other applicable plans,
programs or arrangements of the Corporation including, without limitation, the
Corporation’s certificate of incorporation or By-laws, the Corporation’s 2006
Incentive Compensation Plan and any agreements thereunder, and the
Indemnification Agreement. The Corporation has no obligation,
contractual or otherwise, to employ or reemploy, hire or rehire, or recall or
reinstate Executive in the future with the Corporation.
13. No
Representations. Executive represents that he has carefully
read and understands the scope and effect of the provisions of this
Agreement. Executive has not relied upon any representations or
statements made by the Corporation that are not specifically set forth in this
Agreement.
14. Counterparts. This
Agreement may be executed in two counterparts, each of which shall be deemed to
be an original but both of which together will constitute one and the same
instrument.
15. Withholding. The
Corporation shall withhold from any payments otherwise due or payable hereunder
any amounts required to be withheld in order to comply with any federal, state,
local or other income or other tax laws requiring withholding with respect to
compensation and benefits provided to Executive pursuant to this
Agreement.
16. Successors and
Assigns. This Agreement binds and inures to the benefit of
Executive's heirs, administrators, representatives, executors, successors and
assigns, and the Corporation’s successors and assigns.
17. Entire Agreement -
Termination of Prior Agreements. This Agreement contains the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes any previous oral and written agreements or
representations relating to the subject matters herein, except for the
Employment Agreement, any other applicable plans, programs or arrangements of
the Corporation including, without limitation, the Corporation’s certificate of
incorporation or By-laws, the Corporation’s 2006 Incentive Compensation Plan and
any agreements thereunder, and the Indemnification Agreement.
The
undersigned hereby acknowledge and agree that Executive has carefully read and
fully understands all the provisions of this Agreement, has had an opportunity
to seek counsel regarding it and have voluntarily entered into this Agreement by
signing below as of the date(s) set forth below.
IN
WITNESS WHEREOF, the parties have executed this Agreement on the date indicated
above.
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IPG
PHOTONICS CORPORATION
By: _________________________________
Its: _________________________________
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EXECUTIVE
___________________________
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