EXHIBIT 10.15
FORM OF NON-COMPETITION
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AND CONFIRMATORY ASSIGNMENT AGREEMENT
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This NON-COMPETITION, CONFIDENTIALITY AND CONFIRMATORY ASSIGNMENT AGREEMENT
(the "Agreement") is made and entered into as of August __, 2000 by and among
[IPG Photonics Corporation, a Delaware corporation] (the "Company") and
[insert name of executive ], an individual residing at [ insert address of
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executive ] (the "Executive"). Reference is made to that certain Stock
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Purchase Agreement of the date herewith (the "Purchase Agreement"), which
contemplates an investment in the Company by the investors named therein (the
"Investors").
WITNESSETH
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WHEREAS, the Executive holds a direct equity interest in the Company;
WHEREAS, the Company is a manufacturer of fiber amplifiers, fiber lasers
and associated products. The Company's business is conducted throughout the
world and the reputation and goodwill of the Company are an integral part of its
business success;
WHEREAS, as a material inducement to the Investors to enter into the
Purchase Agreement and in consideration of the covenants and agreements set
forth therein, and in order to provide the Investors with the full benefits of
their investment, the Executive has agreed to execute and deliver this
Agreement; and
WHEREAS, the execution and delivery by the Executive of this Agreement is a
condition precedent to the Company's willingness to consummate the transactions
described in the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:
Section 1. Non-Competition; Non-Solicitation. In view of the fact that
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any activity of the Executive in violation of the terms hereof would adversely
affect the Company and its subsidiaries (as defined below) and would deprive the
Investors under the Purchase Agreement of the benefits of their bargains
thereunder, and to preserve the goodwill associated with the Company's business,
the Executive hereby agrees to the following restrictions on his activities:
(a) Non-Competition. The Executive hereby agrees that during the
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period commencing on the date hereof and ending on the date which is the later
of (i) two (2) years after the date hereof and (ii) one (1) year after the date
on which the Executive's employment with the Company and its subsidiaries
terminates for any reason (the "Non-Competition Period") , he will not, without
the express written consent of the Company, directly or indirectly (including
without limitation through his involvement with IPG Laser Components, a German
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corporation, NEO-IPG Co., a Russian corporation or [IP Canada, Inc.], a Canadian
corporation) anywhere in the world, engage in any activity which is, or
participate or invest in, or provide or facilitate the provision of financing
to, or assist (whether as owner, part-owner, shareholder, member, partner,
director, officer, trustee, employee, agent or consultant, or in any other
capacity), any business, organization or person other than the Company (or any
subsidiary of the Company), and including any such business, organization or
person involving, or which is, a family member of the Executive, whose business,
activities, products or services are competitive with any of the business,
activities, products or services conducted or offered by the Company and its
subsidiaries during any period in which the Executive serves as an officer or
employee of the Company or any of its subsidiaries, which business, activities,
products and services shall include in any event and without limitation the
business of manufacturing and testing of fiber amplifiers and fiber lasers and
related products[provided, however, [Russian carve out]. The Executive hereby
acknowledges that, because of the global-based nature of the Company's business,
the geographic scope as set forth above is reasonable.
(b) Non-Solicitation. The Executive hereby agrees that during the period
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commencing on the date hereof and ending on the date which is the later of (i)
two (2) years after the date hereof and (ii) eighteen (18) months after the date
on which the Executive's employment with the Company and its subsidiaries
terminates for any reason, he will not, without the express written consent of
the Company, (a) hire or engage or attempt to hire or engage for or on behalf of
himself or any such competitor any officer or employee of the Company or any of
its subsidiaries, or any former employee of the Company and any of its
subsidiaries who was employed during the one (1) year period immediately
preceding the date on which the Executive's employment or service relationship
with the Company was terminated for any reason, (b) encourage for or on behalf
of himself or any such competitor any such officer or employee to terminate his
or her relationship or employment with the Company or any of its subsidiaries,
(c) solicit for or on behalf of himself or any such competitor any client of the
Company or any of its subsidiaries or (d) divert to any person (as hereinafter
defined) any client or business opportunity of the Company or any of any of its
subsidiaries.
The Board of Directors, with prior notice and adequate disclosure of any
opportunity or proposed activity, shall be entitled to interpret the provisions
of this Agreement and exempt any opportunity or activity of the Executive which
the Board of Directors, in its reasonable judgment, believes is in the interests
of, or not opposed to the interests of, the Company.
Notwithstanding anything herein to the contrary, the Executive may make
passive investments in any enterprise the shares of which are publicly traded if
such investment constitutes less than three percent (3%) of the equity of such
enterprise.
Neither the Executive nor any business entity controlled by him is a party
to any contract, commitment, arrangement or agreement which could, following the
date hereof, restrain or restrict the Company or any subsidiary of the Company
from carrying on its business or restrain or restrict the Executive from
performing his employment obligations, and as of the date of this Agreement the
Executive has no business interests whatsoever in or relating to the industries
in which the Company and its subsidiaries currently engage other than his
interest in the Company and other than interests in public companies of less
than one percent (1%).
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For purposes of this Agreement, any reference to the subsidiaries of the
Company shall be deemed to include all entities directly or indirectly
controlled by it through an ownership of more than fifty percent (50%) of the
voting interests. As used in this Agreement, the term "person" shall mean an
individual, a corporation, an association, a partnership, a limited liability
company, an estate, a trust, and any other entity or organization.
The Executive agrees that the Company may, at its option, enforce the non-
competition and non-solicitation provisions of this Section 1 by making any
compensation payments required to be made to the Executive as required by
applicable laws.
Section 2. Scope of Agreement. The parties acknowledge that the time,
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scope, geographic area and other provisions of this Agreement have been
specifically negotiated by sophisticated commercial parties and agree that (a)
all such provisions are reasonable under the circumstances of the transactions
contemplated hereby, (b) are given as an integral and essential part of the
transactions contemplated hereby and (c) but for the covenants of the Executive
contained in this Agreement, the Company and the Investors would not have
entered into or consummated the transactions contemplated hereby. The Executive
has independently consulted with his counsel and has been advised in all
respects concerning the reasonableness and propriety of the covenants contained
herein, with specific regard to the business to be conducted by Company and its
subsidiaries, and represents that the Agreement is intended to be, and shall be,
fully enforceable and effective in accordance with its terms.
Section 3. Acknowledgement Regarding Inventions/Receipt of Fair
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Compensation. Executive hereby confirms, acknowledges and agrees that all
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inventions, modifications, discoveries, designs, developments, improvements,
processes, know-how, or intellectual property rights whatsoever (collectively,
"Developments") that he (either along or with others) has conceived, made or
reduced to practice at any time or times while employed by the Company or any of
its subsidiaries that:
(a) related to fixtures for and methods of manufacture of fiber amplifiers
and certain aspects of fiber amplifiers,
(b) related from tasks assigned to the Executive by the Company or any of
its subsidiaries to the business, or
(c) resulted from the use of premises or personal property (whether
tangible or intangible owned, leased or contracted for or by the
Company or any of its subsidiaries
are the sole and absolute property of the Company, its successors and assigns.
The employee acknowledges that all Developments were made as a "work for hire"
and all proprietary rights which the Executive may have acquired in such
Developments were assigned to the Company. The Executive hereby acknowledges he
has not created any Developments that do not satisfy the provisions of Section
3(a), (b) or (c). Executive hereby confirms, acknowledges and agrees that he
has received mutually-agreed upon compensation from the Company in consideration
for the
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Company's ownership rights to the Developments set forth in this Section 3 and
that such consideration is fair and reasonable.
Section 4. Certain Remedies; Severability. It is specifically understood
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and agreed that any breach of the provisions of this Agreement by the Executive
or any of his affiliates will result in irreparable injury to the Company and
its subsidiaries, that the remedy at law alone will be an inadequate remedy for
such breach and that, in addition to any other remedy it may have, the Company
and upon authorization by the Board of Directors of the Company its subsidiaries
shall be entitled to enforce the specific performance of this Agreement by the
Executive through both temporary and permanent injunctive relief without the
necessity of proving actual damages, but without limitation of their right to
damages and any and all other remedies available to them, it being understood
that injunctive relief is in addition to, and not in lieu of, such other
remedies. In the event that any covenant contained in this Agreement shall be
determined by any court of competent jurisdiction to be unenforceable by reason
of its extending for too great a period of time or over too great a geographical
area or by reason of its being too extensive in any other respect, it shall be
interpreted to extend only over the maximum period of time for which it may be
enforceable and/or over the maximum geographical area as to which it may be
enforceable and/or to the maximum extent in all other respects as to which it
may be enforceable, all as determined by such court in such action. The
existence of any claim or cause of action which the Executive may have against
the Company or any of its subsidiaries shall not constitute a defense or bar to
the enforcement of any of the provisions of this Agreement. Executive agrees
that he will not assert, and it should not be considered, that any provision
contained in this Agreement prevents him from earning a living or is otherwise
void, voidable, or unenforceable or should be voided or held to be
unenforceable.
Section 5. Jurisdiction. The parties hereby irrevocably submit to the
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non-exclusive jurisdiction of the courts of The Commonwealth of Massachusetts to
construe and enforce the covenants contained in this Agreement. In the event
that the courts of any state shall hold such covenants unenforceable (in whole
or in part) by reason of the breadth of such scope or otherwise, it is the
intention of the parties hereto that such determination shall not bar or in any
way affect the right of the Company or upon authorization by the Board of
Directors of the Company any its subsidiaries to the relief provided for herein
in the courts of any other state within the geographic scope of such covenants,
as to breaches of such covenants in such other respective states, the above
covenants as they relate to each state being, for this purpose, severable into
diverse and independent covenants.
Section 6. Notices. Any notice or demand which is required or provided to
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be given under this Agreement shall be deemed to have been sufficiently given
and received for all purposes when delivered by hand, telecopy, telex or other
method of facsimile, or five days after being sent by certified or registered
mail, postage and charges prepaid, return receipt requested, or two days after
being sent by overnight delivery providing receipt of delivery, to the following
addresses: if to the Company, X.X. Xxx 000, 000 Xxxx Xxxxxx, Xxxxxxxxxx, XX
00000, Facsimile: 000-000-0000, Attn: [ insert name or title of officer ],
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or at any other address designated by the Company to each Investor and the
Executive in writing; if to the Executive, [ insert address and facsimile
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number ], or at any other address designated by the Executive to the Company
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and the Investors in writing; if to the Investors, c/o TA Associates,
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Inc., 00 Xxxxxx Xxxx, Xxxxx 000, Xxxxx Xxxx, XX 00000, Facsimile: (650) 326-
4933, Attn: Xxxxxxx X. Child, or at any other address designated by the
Investors to the Company and the Executive in writing.
Section 7. Miscellaneous. This Agreement shall be governed by and
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construed under the laws of The Commonwealth of Massachusetts and shall not be
modified or discharged in whole or in part except by an agreement in writing
signed by the Company and the Executive. The failure of any of the parties to
require the performance of a term or obligation or to exercise any right under
this Agreement or the waiver of any breach hereunder shall not prevent
subsequent enforcement of such term or obligation or exercise of such right or
the enforcement at any time of any other right hereunder or be deemed a waiver
of any subsequent breach of the provision so breached, or of any other breach
hereunder. This Agreement shall inure to the benefit of, and be binding upon,
successors of the Company by way of merger, consolidation or transfer of
substantially all the assets of the Company, and may not be assigned by the
Executive. This Agreement supersedes all prior understandings and agreements
between the parties relating to the subject matter hereof.
Section 8. Third Party Beneficiaries. The parties hereto acknowledge and
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agree that the Investors are third party beneficiaries of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Non-Competition
Agreement under seal as of the date first set forth above.
COMPANY:
IPG PHOTONICS CORPORATION.
By:______________________________________
Name:
Title:
EXECUTIVE:
_________________________________________
Name:
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