SERVICE AGREEMENT
Exhibit
10.2
SERVICE
AGREEMENT
This
Service Agreement (“Agreement”), dated as of 9 May, 2008, is made by and between
IPG Laser GmbH, a German limited company having an office at Xxxxxxxxxxxxxx 0,
00000 Xxxxxxx Xxxxxxx (the “Company”), and Xxxxxx Xxxxxxxxxxx, residing at Xxx
xxx Xxxxxx 0, Xxxxxxx 00000 Xxxxxxx, born on 20 June 1947
(“Executive”). The Company and Executive are referred to jointly
below as the “Parties.”
WHEREAS, the Company and
Executive previously entered into a service agreement dated March 1, 2006 (the
"Prior Agreement");
WHEREAS, the Corporation and
Executive desire to amend and restate the Prior Agreement; and
WHEREAS, the Company desires
to continue to employ Executive and Executive desires to continue his service as
managing director on the terms conditions set forth in this
Agreement.
NOW, THEREFORE, in
consideration of the services to be provided by 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. Services. Executive
will provide services to the Company in the position of managing
director. Executive will report to the Company’s majority
shareholder. Executive’s primary responsibility will be managing the
general business and affairs of the Company, and performing related
administrative duties. Executive will carry out such duties as shall
be assigned from time to time by the Company’s sole shareholder, subject to
applicable laws, and ethical duties. During the Service 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 Company, and shall act at all times according
to the highest professional standards, for the purpose of advancing the business
of the Company.
2. Term. Subject
to the Termination provisions below, Executive shall provide services to the
Company for a term commencing on the first day of the fiscal quarter including
the date of execution of this Agreement (the “Effective Date”) and shall
terminate at 5:00 pm E.S.T. on December 31, 2009 (the “Service Period”);
provided that, in the event of a "Change of Control" of IPG Photonics
Corporation (as such term is defined in IPG Photonics
Corporation’s 2006 Incentive Compensation Plan in effect on the
Effective Date (the "Equity Plan")), the Service Period automatically will be
extended until the second anniversary of the Change in Control.
Compensation.
(i) Salary. The
Company shall pay Executive on a salary basis at a monthly rate of €17,640 paid
on the basis of a 14-month year for gross annual base salary ("Base Salary") of
two hundred and forty six thousand, nine hundred and sixty
EURO (€246,960) effective as of the Effective Date. The Company will
pay Executive's Base Salary in equal installments in accordance with the
Company's standard payroll policies and schedule, subject to tax and elective
withholding and deductions. Thereafter, the Board of Directors of IPG
Photonics Corporation, 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 Company'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.
(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 Company 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 Company 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 Company 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.
(iii) Executive
shall have the right to a luxury class car which may be also used for personal
purposes.
5. Other
Activities. The service 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 Company,
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 of Directors of IPG Photonics Corporation (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
Company. The Company may terminate the Service 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 service to the Company; (B) Executive's intentional
wrongful damage to the property of the Company; (C) Executive's intentional
breach of Section 12 hereof while Executive remains in the employ of the
Company; (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
Company. 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 Company, or on
the business of the Company's customers or suppliers as such relate to the
Company. 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 service shall be deemed to have
terminated for Cause if, based on facts and circumstances discovered after
Executive's service has terminated, the Board determines in good faith after
appropriate investigation that Executive committed an act during the Service
Period that would have justified a termination for Cause. In addition,
Executive’s service shall be deemed to have terminated for Cause, if based on
facts and circumstances discovered after Executive’s service has terminated, the
Board determines in reasonable good faith, within one year after Executive’s
service 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 Service Period that would have justified a
termination for Cause.
7. Termination by
Executive. Executive may terminate the Service Period (i) by
giving the Company sixty (60) days' prior written notice, or (ii) for Good
Reason (as defined below); provided, however, that in the event Executive
terminates the Service Period for Good Reason, Executive must give the Company
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 Company 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 Company 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 Company;
(b) A
material reduction by the Company of Executive's Base Salary, other than a
reduction approved by the Board that similarly applies to all executive officers
of the Company, 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 Company in Burbach,
Germany;
(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 Company of this
Agreement.
The
Company shall have no obligations to Executive after Executive's last day of
servive following termination of service under this Section, except as
specifically set forth in this Agreement or under any applicable plans, programs
or arrangements of
IPG
Photonics Corporation including, without limitation, the its certificate of
incorporation or By-Laws, the Equity Plan and any agreements thereunder and the
indemnification agreement described in Section 13.
8. Automatic
Termination. Notwithstanding the provisions of Section 2,
Executive's service 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, 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 Service Period shall terminate in accordance
with Section 2 if not earlier terminated pursuant to Section 6, 7 or
8.
10. Certain Obligations of the
Company Following Termination of the Service Period. Following
termination of the Service Period under the circumstances described below, the
Company 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 Company may have against the other under this
Agreement:
(i) Termination of Service for
Any Reason. In the event of a termination of the Service
Period for any reason, the Company 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 Company
or for Good Reason by Executive. In the event that the Service
Period is terminated by the Company 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 service
terminated. The Company 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 Company'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 Company;
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 service terminates;
(d) Continuing
payments of Base Salary, payable in accordance with regular payroll practices of
the Company, for twelve months following the date of termination;
(e) Continued
coverage under the Company's medical and dental plans for twelve months
following the date of termination.
In the
event that the Service Period is terminated by the Company 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 service twelve (12)
months following the date of Executive's actual termination of
service.
In the
event that the Service Period is terminated by the Company 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 Company for Cause. In the event
the Service Period is terminated by Executive pursuant to Section 7(i) hereof
without Good Reason or by the Company 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 Service 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 Service 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 Service Period terminates due to the expiration of the Service
Period and the Company does not offer Executive continued service 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 Service 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 Service 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 Company, for twelve 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 Company offers Executive
continued service in the same or a substantially similar position as, or in a
higher position than, his position on the date of expiration of the Service
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 Service Period, and
Executive declines the offer.
(vi) No Mitigation or
Offset. In the event of any termination of Executive’s service
under this Section 10, Executive shall be under no obligation to seek other
service 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 service obtained by
Executive.
11. Nature of
Payments. Upon termination of service pursuant to Sections 6,
7, 8 or 9, Executive will be released from any duties and obligations to the
Company 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 Company 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 service 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 Company 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 Company to
Executive. The Company shall present such release to Executive within
thirty (30) days of the date Executive’s service 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 Company an
executed and enforceable release as described herein.
14. Indemnification. IPG
Photonics 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 Company shall be addressed to
the Company 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
Company.
16. Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with the substantive laws of the Commonwealth of
Massachusetts except that the social security insurance and mandatory statutory
provisions set forth under company law shall be governed by the laws of the
Federal Republic of Germany, 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 Company's successors and
assigns.
19. Entire
Agreement/Amendment. This Agreement and the Restrictive
Covenants 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 Company hereby represent and warrant to the other that: (i)
Executive or the Company has full power, authority and capacity to execute and
deliver this Agreement, and to perform Executive's or the Company'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 Company is a party or
Executive or the Company is otherwise bound; and (iii) this Agreement is
Executive's or the Company'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 service or the termination of
that service (including, without limitation, any claims of unlawful service
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
International Arbitration Association ("IAA") in Frankfurt/Main, Germany in
accordance with the rules of the IAA goverming dispute resolution of personal
services, 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. German Civil
Code. Executive shall be exempt from the restrictions of § 181
of the German Civil Code, provided that Executive shall first obtain the prior
written consent of IPG Photonics Corporation with respect to the
transaction.
IN WITNESS WHEREOF, this
Service Agreement has been duly executed:
/s/ Xxxxxxxx X.
Xxxxxxxxx /s/ Xxxxxx
Xxxxxxxxxxx
Xxxxxxxx
X.
Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx
Geschaftsfuhrer,
CEO Managing
Director
IPG Laser
GmbH
IPG
Photonics Corporation
/s/ Xxxxxxxx X.
Xxxxxxxxx
By:
Xxxxxxxx X. Xxxxxxxxx
Chief
Executive Officer
EXHIBIT
A
RELEASE AND WAIVER
AGREEMENT
This
Release and Waiver Agreement ("Agreement") is entered into this _____ day of
______________________, _____ by and between IPG Laser GmbH, a German company
(the "Company") and [insert executive name] (hereinafter
"Executive").
WHEREAS,
Executive's service with the Company is terminated effective __________________,
20__ ("Termination Date") and the Company and Executive have voluntarily agreed
to the terms of this Agreement in exchange for severance benefits under the
Serviced Agreement between the parties effective [DATE], 2008 ("Service
Agreement"), to which Executive otherwise would not be entitled;
WHEREAS,
accordingly the Company 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 Service Agreement for the release and waiver
contained herein is in addition to any consideration the Company 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 Service Agreement,
including his obligations under Section 12, the Company will pay Executive the
applicable severance provided in Section 10 [Note—actual agreement to specify the
applicable subsections of Section 10(d)] of the Service
Agreement. Except as specifically provided in this Agreement, the
Service Agreement and any applicable plans, programs or arrangements of the
Company including, without limitation, the Company’s certificate of
incorporation or By-laws, the Company’s 2006 Incentive Compensation Plan and any
agreements thereunder and the indemnification agreement dated ____ between the
Company and Executive (the “Indemnification Agreement”), Executive shall not be
entitled to any other payment, benefits or other consideration from the
Company.
2. Waiver and
Release. In consideration for the payments and benefits to be
provided to Executive as set forth herein and the Service 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 Company 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 service to the Company 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 service to the Company 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 Companys 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 service with the Company 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 service to the Company 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 service to and/or separation from service to the Company 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,
federal or foreign 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
Company including, without limitation, the Company’s certificate of
incorporation or By-laws, the Company’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 Company 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 Company or its good will, products or business
opportunities, or in any manner detrimental to the Company. In
addition, Executive agrees not to make any disparaging remarks regarding any
related, affiliated or subsidiary organizations of the Company. The
Company 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
Company. The Company 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 Company acknowledges that the
release granted by the Executive in Paragraph 2 above will be null and void in
the event the Company subsequently seeks to treat Executive’s termination of
service as “for Cause” under the last sentence of Section 6(ii) of
the Service 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 IPG Photonics
Corporation, attention: 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 Service
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 Federal Republic of Germany,
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 Company to enforce its rights under
Section 12 the Service 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 Company 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 Company. 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 service or contractual relationship between him and the Company
is terminated, and that he has no future service or contractual relationship
with the Company other than the contractual relationship created by this
Agreement, the Service Agreement, any other applicable plans, programs or
arrangements of the Company including, without limitation, the Company’s
certificate of incorporation or By-laws, the Company’s 2006 Incentive
Compensation Plan and any agreements thereunder, and the Indemnification
Agreement. The Company has no obligation, contractual or otherwise,
to employ or reemploy, hire or rehire, or recall or reinstate Executive in the
future with the Company.
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 Company 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
Company 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 Company’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 Service
Agreement, any other applicable plans, programs or arrangements of the Company
including, without limitation, the Company’s certificate of incorporation or
By-laws, the Company’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.
IPG Laser
GmbH EXECUTIVE
By:___________________________________ ___________________________
Its:___________________________________
