Ipg Photonics Corp 8-K, filed Jul 8, 2025
Ipg Photonics Corp (IPGP)
8-K
2025-07-08
For: 2025-07-01
View Original
Added on
April 12, 2026
About this 8-K
Ipg Photonics Corp filed this 8-K on July 8, 2025, reporting on events of July 1, 2025.
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported)
(Exact name of registrant as specified in its charter)
(State or Other Jurisdiction of Incorporation) | (Commission File No.) | (IRS Employer Identification No.) | ||||||||||||
(Address of Principal Executive Offices, including Zip Code)
(508 ) 373-1100
(Registrant’s telephone number)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | ||||||||
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | ||||||||
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | ||||||||
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) | ||||||||
| Securities registered pursuant to Section 12(b) of the Act: | ||||||||
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||||||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On July 1, 2025, IPG Photonics Corporation (the "Company") appointed Dr. Paulus Bucher as Senior Vice President, Global Operations of the Company. In connection with the appointment, Dr. Bucher entered into a managing director's service contract (the "Service Contract") with IPG Photonics GmbH & Co. KG, a German subsidiary of the Company. Dr. Bucher will be located in Germany and is expected to relocate to the U.S. to serve at the Company's global headquarters following receipt of work permission from the U.S. At such time, he will be employed directly by the Company and the Service Contract shall automatically terminate according to its terms.
Prior to joining the Company, Dr. Bucher served as Senior Vice President of Global Operations at Adtran, where he managed internal and outsourced manufacturing across the U.S., Germany, and Asia. He also led the operational integration of Adtran and ADVA following their merger and implemented major ERP and S&OP systems to improve scalability and efficiency. Earlier in his career, he held senior operations roles at ADVA, CommScope, and Ericsson, leading large-scale transformation efforts and managing global supply chains across complex, multi-site environments.
Dr. Bucher, age 58, will receive from the Company an annual base salary in the gross amount of $420,000. Dr. Bucher is entitled to participate in the Company’s Senior Executive Annual Incentive Plan (the "AIP") with a target of 65% of his base salary. The payout amount at target is based 25% on his individual performance and 75% on the Company's financial results. Dr. Bucher's participation in the AIP will be deemed to have started on January 1, 2025.
Dr. Bucher will also receive a grant of long-term incentives in the Company in the form of equity awards consisting of service-based restricted stock units ("RSUs") weighted 50% and performance-based stock units ("PSUs") weighted 50% with a target equity value of 150% of Dr. Bucher's base salary (converted to USD). The RSUs will vest in three annual installments of 33%, 33% and 34% on August 8, 2026, August 8, 2027 and August 8, 2028, respectively, and the PSUs will cliff vest on August 8, 2028, should any PSUs vest at all, subject to achievement of the applicable performance metrics. The PSUs will have the same performance criteria and performance periods as those granted to the Company’s named executive officers in February 2025.
Under the terms of the Service Contract, Dr. Bucher and the Company will agree on an appropriate reimbursement amount and procedures prior to his relocation from Germany to the U.S. Dr. Bucher is eligible to participate in the employee benefit plans and programs made available by the Company to senior executives generally, subject to the terms of those plans. Dr. Bucher is also eligible for certain severance payments and benefits in the event that his employment is terminated by the Company without cause, he resigns for good reason or his employment terminates due to his death or “disability”, subject to his execution and the effectiveness of a general release of claims in favor of the Company.
In connection with his appointment, Dr. Bucher has also been designated as a Tier One Executive under the Company’s Executive Severance Plan, as amended and restated (the "Severance Plan"). As a Tier One Executive, Dr. Bucher is eligible to receive severance benefits under the Severance Plan in the event of an “Involuntary Termination,” which includes a termination by the Company without “Cause” or a resignation by Dr. Bucher for “Good Reason” (as such terms are defined in the Severance Plan). Subject to his execution of a release of claims and compliance with applicable restrictive covenants, the severance benefits available to Dr. Bucher under the Severance Plan include eighteen (18) months of continued base salary, a pro-rated portion of the annual bonus under the AIP, based on actual financial performance for the year of termination, an extension of equity award vesting as though employed for twelve (12) months following his termination, and reimbursement for the full cost of COBRA continuation coverage under the Company’s medical and dental plans for up to eighteen (18) months. In the event Dr. Bucher’s Involuntary Termination occurs within twenty-four (24) months following a Change in Control (as such term is defined in the Severance Plan), the severance benefits include twenty-four (24) months of continued base salary, a pro-rated portion of the annual bonus under the AIP, based on actual financial performance for the year of termination as well as a lump sum cash payment equal to two (2) times the executive’s average annual bonus under the AIP over the three (3) completed years immediately preceding the date of the Change in Control, immediate vesting of all outstanding equity awards, and reimbursement for the full cost of COBRA continuation coverage under the Company’s medical and dental plans for up to twenty-four (24) months.
There are no arrangements or understandings between Dr. Bucher and any other person pursuant to which he was appointed to the position of SVP, Global Operations. Dr. Bucher does not have family relationships with any of the Company’s directors or executive officers. Dr. Bucher has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
The foregoing summary of each of the Service Contract and Dr. Bucher's benefits under the Severance Plan is qualified in its entirety by reference to the text of the Service Contract and the Severance Plan, copies of which are attached hereto as Exhibits 10.1 and 10.2 and are incorporated herein by reference.
The Company has also entered into an indemnification agreement with Dr. Bucher, the standard form of which was previously filed by the Company on February 22, 2017, as Exhibit 10.3 to the Company’s Current Report on Form 8-K/A, and a confidentiality, non-competition and confirmatory assignment agreement, the standard form of which was previously filed by the Company on October 15, 2013, as Exhibit 10.4 to the Company's Current Report on Form 8-K, as amended, in each case effective upon the commencement of employment.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits
| Exhibit | Exhibit Description | |||||||
| Exhibit 10.1 | ||||||||
| Exhibit 10.2 | ||||||||
| Exhibit 104 | Inline XBRL for the cover page of this Current Report on Form 8-K. | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this Current Report on Form 8-K to be signed on its behalf by the undersigned thereunto duly authorized.
| IPG PHOTONICS CORPORATION | ||||||||||||||
| July 8, 2025 | By: | /s/ Angelo P. Lopresti | ||||||||||||
| Angelo P. Lopresti | ||||||||||||||
| Senior Vice President, General Counsel & Secretary | ||||||||||||||
Exhibit 10.1
| Managing Director's Service Contract | ||
| Between | ||
(1) IPG Photonics GmbH & Co. KG, Carl-Benz-Straße 28, 57299 Burbach, | ||
| – "Company" – | ||
| And | ||
(2) Mr. Dr. Paulus Bucher, Nürnberger Straße 12, 40599 Düsseldorf, | ||
| – "Mr. Bucher" – | ||
| § 1 Appointment and representation | ||
(1) Mr. Bucher was appointed director of the Company with effect as of 1 July 2025 by resolution passed by the general partner IPG Photonics Verwaltungs GmbH. | ||
(2) Mr. Bucher is responsible for the management of the Company – if applicable, together with other appointed Managing Directors. | ||
(3) Mr. Bucher represents the Company towards third parties in accordance with the power of representation conferred by the shareholders' meeting. The Company may appoint additional Managing Directors and is entitled to amend the authority to represent the Company at any time. Mr. Bucher may only make use of this power of representation within the framework of his management authority. | ||
§ 2 Tasks, duties and responsibilities | ||
(1) Mr. Bucher will conduct the business of the Company, if applicable together with other appointed directors, in accordance with the law, the articles of association, the rules of procedure for the management board, the operating policies, procedures and practices of the Company and IPG Photonics Corporation, this Director's Service Contract and the instructions of the corporate body responsible for matters concerning directors with the diligence of a prudent businessman. Mr. Bucher can be exempted from the restrictions of § 181 German Civil Code (BGB). Even in this case, the Company will be entitled to exclude certain transactions between the director as representative of the Company and himself in his private capacity or as a representative of a third company or to revoke the exemption at any time. | ||
(2) Based on this Managing Director's Service Contract, Mr. Bucher will also serve as “Senior Vice President, Global Operations”. The professional management duties and authority incumbent upon Mr. Bucher in this capacity also extend to employees who are not employed by the Company but by an affiliated company. Unless the Company decides otherwise in individual cases, technical instructions given by Mr. Bucher across companies are to be issued on behalf of the contractual employer of the person receiving the instructions. Mr Bucher currently reports - subject to other instructions of the Company - to the Chief Executive Officer of the Company. | ||
The Company is entitled to assign additional and/or other duties to Mr Bucher by way of the rules of procedure or, in individual cases, by giving him instructions. Assigning him certain duties does not relieve Mr Bucher of his overall responsibility for the Company. | ||
(3) The prior consent of the corporate body responsible for matters concerning directors must be obtained in text form (§ 126b German Civil Code (BGB)) before executing transactions, measures and actions that go beyond the ordinary course of the Company's business. The following legal transactions, in particular, require consent: | ||
- Adding new and/or discontinuing existing business divisions | ||
- Founding, dissolving and/or selling subsidiaries | ||
- Establishing and/or closing branches | ||
- Legal transactions in connection with company pension plans, such as issuing and/or increasing pension commitments | ||
- Concluding loan agreements for a sum that exceeds the guidelines, procedures and practices of the company and IPG Photonics Corporation | ||
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- Expenses and particularly investments that exceed the guidelines, procedures and practices of the company and IPG Photonics Corporation | ||
- Acquiring and/or disposing of real property. | ||
(4) At the Company's request, Mr. Bucher will be required to take over the management of affiliated companies or other functions on advisory or supervisory boards or similar bodies of such companies, as well as of associations and societies to which the Company belongs, without additional remuneration or a contractual agreement. Remuneration that Mr. Bucher receives for performing such functions will be deducted from his remuneration under this Contract. The provisions of this Managing Director's Service Contract apply accordingly for Mr. Bucher in respect of this activity. The parties hereby clarify that the activity for or the position on the board of directors in affiliated companies does not lead to the establishment of an employment or other service relationship with one of the affiliated companies, but that Mr. Bucher fulfills an obligation arising from this Managing Director's Service Contract with the activity for the affiliated company. | ||
Mr. Bucher will be required to provide the Company with comprehensive information in text form (§ 126b German Civil Code (BGB)) on the receipt of such remuneration without undue delay, submitting relevant supporting documents. Mr. Bucher will be required to resign from all offices if this Managing Director's Service Contract ends or if the Company so desires. | ||
If an appointment is made to an advisory board or board of directors for an affiliated company based outside Germany (hereinafter also referred to as an “foreign company”), the parties agree that the relevant tasks and activities – subject to any necessary business trips – will not be carried out in Germany, but only in the country in which the respective foreign company is based. Vice versa, the parties agree that Mr. Bucher shall perform his work for the Company exclusively in Germany, subject to any necessary business trips. Mr. Bucher is obliged to notify the Company in text form of the working days that he spends abroad as part of his work for the Company and/or its affiliated companies. The corresponding records must at least include information about the location (country) and the period (to the exact day) of the stay abroad. At the request of the Company, Mr. Bucher records the corresponding information in a template or in a technical device provided by the Company. | ||
§ 3 Scope of activity, place of work, secondary activities | ||
(1) Mr. Bucher must devote his entire working capacity to the Company. In principle, Mr. Bucher will perform his work at the place of the Company's registered office in Germany. His duties involve business travel. | ||
(2) Any secondary activities of Mr. Bucher regardless of whether these are performed in return for remuneration or not, require the Company's prior consent in text form (§ 126b German Civil Code (BGB)). The Company will refuse its consent only for objective reasons. Consent granted to the performance of a secondary activity or to the assumption of an office can be revoked at any time; in such a case the Company will take account of any provisions regarding notice periods for proper termination of the activity concerned. | ||
§ 4 Contractual term, termination, release from obligation of work (garden leave) | ||
(1) This Contract will come into force on 1 July 2025. | ||
(2) It is the mutual understanding of the parties that Mr. Bucher will in the future work as Senior Vice President for IPG Photonics Corporation at its global headquarters in the United States. In this respect, this Managing Director's Service Contract will automatically end, upon his relocation to IPG Photonics Corporation (condition subsequent), notwithstanding anything in this Managing Director's Service Contract to the contrary. The terms of the relocation will be agreed to in writing signed by Mr. Bucher and IPG Photonics Corporation. | ||
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(3) Irrespective of this, this Director's Service Contract will automatically come to an end in the event that Mr. Bucher 's appointment as director is revoked, in the sense of a tie-in agreement (Koppelungsabrede) with an expiry period corresponding to the statutory notice period of § 621 German Civil Code (BGB), without separate notice of termination being necessary. The expiry period will begin when Mr. Bucher receives the resolution revoking his appointment. Mr. Bucher's rights to severance pay pursuant to Section 4 (5) of this agreement remain unaffected by this. | ||
(4) Any notice of termination must be in the written form (§ 126 German Civil Code (BGB)); electronic form (" 126a German Civil Code (BGB)) and text form (§ 126b German Civil Code (BGB)) are excluded. Any notice of termination issued which disregards this form will be invalid. | ||
(5) In the event of termination of the Managing Director's Service Contract, Mr. Bucher may be entitled to a severance payment as a Tier I Executive under the provisions of and subject to the “IPG Photonics Corporation Executive Severance Plan” governed by the laws of the US state of Massachusetts as amended from time to time. The Compensation Committee of the Board of Directors of IPG Photonics Corporation (“IPG Compensation Committee”) has the ability to change the benefits and provisions of the IPG Photonics Corporation Executive Severance Plan pursuant to the terms of such Plan. A copy of the current version of the IPG Photonics Corporation Executive Severance Plan has been provided to Mr. Bucher. . | ||
(6) Without prejudice to the above provisions, the service relationship will end at the end of the month in which Mr. Bucher becomes eligible for a pension from the federal pension insurance (because he has reached standard retirement age) or at the time Mr. Bucher draws a retirement pension regardless of the legal basis for this. The service relationship will also end without notice of termination at the end of the month in which Mr. Bucher receives notice from a pension insurance institution that he is entitled to draw a pension for an unlimited duration based on reduced earning capacity. If the pension concerned is not drawn until later, the service relationship will not end until expiry of the day before the first pension payment is due. The Company must be informed without undue delay of the receipt of such a pension notice. | ||
(7) The Company is entitled at any time, particularly in the event that Mr. Bucher is dismissed from his office as director of the Company or in the event of termination of the Managing Director's Service Contract, to release Mr. Bucher from his duty to perform his services while continuing to pay the contractually owed remuneration. This will not affect the remaining provisions of the Managing Director's Service Contract. In particular, the confidentiality obligation and the contractual prohibition on competition will remain in effect. During the garden leave period, § 615 sentence 2 German Civil Code (BGB) applies. | ||
(8) This does not affect the right to terminate the Director's Service Contract for good cause in accordance with § 626 German Civil Code (BGB). | ||
| § 5 Remuneration | ||
(1) Mr. Bucher will receive from the Company a fixed annual remuneration in the amount of EUR 388,553.00 (gross), payable in fourteen equal installments (EUR 27,753.79 (gross)). Twelve instalments are to be paid at the end of each month, two installments according to § 5 (2) and (3). | ||
(2) In addition, Mr. Bucher will receive from the Company an annual bonus in the gross amount of one month's salary (EUR 27,753.79 gross) as a vacation pay. The vacation pay will be paid out together with the salary for the month of July of the respective calendar year. | ||
(3) Furthermore, Mr. Bucher will receive from the Company an annual bonus in the gross amount of one month's salary (EUR 27,753.79 gross) as a Christmas bonus. The Christmas bonus will be paid out together with the salary for the month of November of the respective calendar year. | ||
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(4) Where the Managing Director's Service Contract commences during the course of or ends before the end of a year, the annual bonuses under § 5 (2) and (3) will be paid pro rata temporis. | ||
| § 6 Annual Incentive Award (AIP Bonus) | ||
(1) In addition, Mr. Bucher is entitled to participate in the "IPG Corporation Annual Incentive Plan" (AIP Plan) of IPG Photonics Corporation, which is subject to the laws of the US state of Delaware. According to the AIP Plan, Mr. Bucher may receive a target-related variable annual compensation (Annual Incentive Award / AIP bonus). Any payments under the AIP Plan shall be paid by the Company. For the purposes of the 2025 AIP Plan, Mr. Bucher shall be deemed to have started participation in such Plan on January 1, 2025. | ||
Whether and, if so, under which conditions an entitlement to an AIP bonus arises, as well as the relevant weighting of personal and company-related targets in this case, including the minimum target achievement level and the bonus values corresponding to the respective target achievement level, depends solely on the AIP plan for the respective fiscal year. Currently, personal target achievement accounts for 25 % and company-related target achievement for 75 % of the bonus. | ||
(2) The AIP plan, in particular the performance targets relevant for Mr. Bucher will be determined by the corporate body of IPG Photonics Corporation responsible for managing director matters and reviewed for each performance year. The validity of the AIP plan is therefore limited to the respective fiscal year. | ||
If the targets set under the relevant AIP plan are fully achieved, the AIP bonus (target bonus) currently amounts to 65 % of the fixed annual remuneration (§ 5). | ||
§ 7 Long Term Incentive | ||
(1) Mr. Bucher is entitled to participate in a Long Term Incentive in the form of an "Annual Equity Award" of IPG Photonics Corporation, which is subject to the laws of the US state of Delaware. | ||
The first Annual Equity Award-target will be 150 % of the fixed annual remuneration (§ 5) in USD. The benefits of the Annual Equity Award will initially consist of a 50/50 mix of half restricted stock units in the form of so-called time-based Restricted Stock Units (“RSUs”) and half so-called Performance Share Units (“PSUs”). The composition of equity types granted and the amount and terms of future awards are typically reviewed on an annual basis in February and determined by the IPG Compensation Committee. | ||
a) RSUs and PSUs are granted and settled in accordance with the appropriate vesting schedule and all other terms and conditions stated in the equity award grant agreement construed in accordance with and subject to the laws of the state of Delaware. | ||
b) The first grant of RSUs/PSUs of 150 % of the fixed annual remuneration (§ 5) in USD under the Annual Equity Award will be awarded by resolution of the IPG Compensation Committee at its next scheduled meeting in July 2025 Mr. Bucher’s first grant of RSUs/PSUs and the Annual Equity Award in February 2025 will not be prorated in relation to the start of this Agreement. | ||
§ 8 [Intentionally Omitted] | ||
| § 9 Reimbursement of expenses | ||
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| For the performance of his duties, Mr. Bucher is entitled to reimbursement of his travel expenses and out-of-pocket expenses incurred in the interest of the Company on submission of receipts within the framework of the maximum permissible statutory tax limits. For his relocation to the United States, Mr. Bucher and the Company will agree on an appropriate reimbursement amount and procedures prior to his relocation. | ||
§ 10 Unforeseen absence/continued payment of salary in the event of illness and accident | ||
(1) In any case of unforeseen absence, Mr. Bucher must inform the Company in an appropriate manner without undue delay and state the reason for and anticipated duration of his absence. In so doing, Mr. Bucher must indicate to the Company which tasks urgently require attention. | ||
(2) If Mr. Bucher is prevented from performing his duties due to illness or accident through no fault of his own, the Company will continue to pay Mr. Bucher his fixed monthly remuneration pursuant to § 5 (1) for a period of six weeks, for the term of the Director's Service Contract at most. Any sickness benefit, daily allowance for sickness or pension that Mr. Bucher receives from health insurance institutions or insurance companies will be deducted from the above-mentioned continued remuneration unless the benefits are based solely on his own contributions. If Mr. Bucher is not entitled to daily allowance for sickness because he is not insured, the amount that Mr. Bucher would receive through an insurance policy appropriate to his salary from the relevant local health insurance company will be taken as a basis. If Mr. Bucher is injured by a third party and prevented from performing his duties through no fault of his own, Mr. Bucher will assign to the Company all claims against the third party up to the amount of the continued payment of remuneration owed by the Company under this Managing Director's Service Contract. | ||
| § 11 Leave | ||
(1) Mr. Bucher is entitled to annual paid leave of 20 working days. Working days are all days with the exception of Saturdays, Sundays and statutory public holidays. | ||
(2) If Mr. Bucher joins or leaves the Company during the course of a calendar year, Mr. Bucher will be entitled to 1/12 of the annual leave for each full month the Director’s Service Contract existed in that year. | ||
(3) The scheduling and duration of leave must be agreed with the other directors and with the corporate body responsible for matters concerning directors. | ||
(4) If Mr. Bucher is unable to take his leave in whole or in part for business or personal reasons by the end of the respective calendar year, he may carry over the outstanding leave until 31 March of the following year. Otherwise, leave entitlements will be forfeited. Leave entitlement cannot be paid out in monetary form. | ||
| § 12 Personal data; data processing | ||
(1) Mr. Bucher is required to treat personal data as confidential. This applies to personal data relating to colleagues and co-workers, but also to customers. This confidentiality obligation will continue to apply even after the service relationship has come to an end. Mr. Bucher has received, read, understood and signed the "Confidentiality Undertaking" attached to this Managing Director's Service Contract. | ||
(2) Mr. Bucher confirms that he has taken note of the "Information on data privacy protection pursuant to the EU General Data Protection Regulation". | ||
§ 13 Secrecy of confidential information, contractual penalty | ||
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(1) As a condition of employment, Mr. Bucher signed the Confidentiality Non-Competition and Confirmatory Assignment Agreement dated 20 May 2025 (the “Restrictive Covenant Agreement”). Mr. Bucher agrees to comply with his obligations under the Restrictive Covenant Agreement. In addition, he undertakes to maintain confidentiality with regard to confidential information belonging to the Company in the sense of § 12 (2) (confidentiality obligation). Mr. Bucher is therefore especially prohibited from doing any of the following with confidential information belonging to the Company: | ||
a) disclosing it to unauthorized persons within or outside the Company or enabling such unauthorized persons to access it, | ||
b) using or obtaining it for purposes other than performing his contractual obligations, | ||
c) obtaining or trying to obtain it by observing, examining, reverse engineering or testing a product or item belonging to the Company which has not been made publicly available where this is not necessary for the purpose of performing his contractual obligations, or | ||
d) removing it from the lawful control of the Company. | ||
This confidentiality obligation includes both confidential information of the Company which Mr. Bucher has lawfully obtained and confidential information which Mr. Bucher has unlawfully obtained. | ||
(2) Confidential information of the Company includes, in particular | ||
a) trade secrets within the meaning of § 2 no. 1 German Trade Secrets Act (GeschGehG) and | ||
b) other information expressly marked as confidential by the Company or regarded as confidential based on the express or clear (from the circumstances) will of the Company. | ||
| The parties agree that the following information in particular constitutes confidential information within the meaning of this section: | ||
purchase prices and supplier conditions | ||
manufacturing and production processes | ||
construction plans | ||
Prototypes | ||
Algorithms | ||
research and development steps/objectives/results | ||
recipes and product compositions | ||
sales concepts/conditions/channels | ||
customer lists | ||
business plans and business strategies | ||
financial planning | ||
advertising strategies | ||
margins on the Company's products | ||
salary structures | ||
(3) This confidentiality obligation concerning confidential information of the Company, which is unlimited in time as a matter of principle and which continues to apply after the service relationship has come to an end, does not apply where | ||
a) the information is passed on with the consent of the Company, where disclosure is, without doubt, necessary in the interest of the Company or where there is clearly no disadvantage to the Company in doing so, | ||
b) where Mr. Bucher has a statutory duty to disclose such information (e.g. to the tax authorities, the Federal Employment Agency or his spouse), | ||
c) with regard to trade secrets, in the case of an exemption stipulated in § 5 German Trade Secrets Act (GeschGehG), | ||
e) if Mr. Bucher has a right to report or disclose confidential information pursuant to the provisions of the German Whistleblower Protection Act (HinSchG), | ||
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d) at the respective point in time, the respective information had already become public knowledge without Mr. Bucher having breached his confidentiality obligation, | ||
e) Mr. Bucher uses the respective information only for the purpose of increasing his own expertise, | ||
f) the Company clearly has no interest (any longer) in keeping the information concerned confidential owing to the expiry of deadlines or for other reasons. | ||
(4) If Mr. Bucher has any doubt as to the existence and extent of the confidentiality obligation, he must seek an appropriate instruction from the corporate body responsible for matters concerning directors. This also applies after the service relationship has come to an end. | ||
(5) The confidentiality obligation also includes the confidential information pursuant to § 12 (2) of other companies with which the Company is affiliated within the meaning of § 15 German Stock Corporation Act (AktG). | ||
(6) Mr. Bucher undertakes not to unlawfully use or obtain confidential information of third parties (e.g. a former employer or company with which the Company has business contacts) or to procure such confidential information for the Company. If Mr. Bucher has any doubt as to whether using, obtaining or procuring certain third-party information in the context of his service relationship with the Company is lawful, he must seek appropriate instructions from the corporate body responsible for matters concerning directors. | ||
(7) For each culpable breach by Mr. Bucher of the obligations set forth in this subsection, Mr. Bucher must pay a contractual penalty. The amount of the contractual penalty is equal to the gross monthly basic salary owed at the time of the breach. If the culpable breach occurs after the termination of the Service Contract, Mr. Bucher must pay a contractual penalty in the amount of the monthly gross basic salary owed at the time when the Service Contract ended. | ||
If Mr. Bucher breaches his duties several times or permanently within one calendar month, however, he must pay the contractual penalty only once for that calendar month. If one or more breaches occur again in the following month, or if a breach from the previous month still persists, an additional contractual penalty will become due for the subsequent month. The same applies to the months following the subsequent month. | ||
Additional or different claims of the Company are not affected by this contractual penalty provision. In particular, the Company expressly reserves the right to assert the claims set out in §§ 6 et seqq. German Trade Secrets Act (GeschGehG) as well as other relevant claims (e.g. claims for removal, injunctive relief, information, compensation) on another legal basis. | ||
| § 14 Obligation to return property | ||
(1) On request from the corporate body responsible for matters concerning directors, but no later than at the time when the service relationship ends and upon being released from his duty to work, in these two cases without awaiting a request to do so, Mr. Bucher will be required to return all documents, correspondence, records, plans, drafts, calculations and the like relating to his work and concerning the affairs of the Company that are in his possession - including his indirect possession (mittelbarer Besitz) - without undue delay and in full to the Company's registered office. This obligation also includes duplicates and photocopies. | ||
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(2) The obligation to return these things also includes all items owned by the Company or its subsidiaries or provided by the Company to Mr. Bucher in the performance of his duties, in particular the company car, data processing devices and data and program carriers, including data and program carriers belonging to Mr. Bucher, on which programs of the Company or its affiliated companies and/or data relating to these companies are stored. At the Company's request, Mr. Bucher will confirm to the Company in text form (§ 126b German Civil Code (BGB)) that he has fully complied with the aforementioned obligation to return property and that he has made all data and program carriers of the type described above available to the Company for deletion. | ||
(3) Mr. Bucher will not be entitled to assert a right of retention with regard to the obligation to return property which applies to him under § 14 (1) and (2). | ||
| § 15 Contractual prohibition on competition | ||
(1) During the term of the Managing Director's Service Contract, Mr. Bucher will not be permitted to work for another company or third party, with which the Company or an affiliated company is in direct or indirect competition, in an independent, dependent or other manner. | ||
(2) Likewise, Mr. Bucher may not establish, acquire or participate in any such company, with which the Company or an affiliated company is in direct or indirect competition, in an independent, dependent or other manner. This does not apply to equity investments in shares traded on the stock exchange or in other forms of investment for the purpose of private financial investment, as long as they do not involve any entrepreneurial influence. | ||
| § 16 Replacement of previous agreements | ||
| This Managing Director's Service Contract, the AIP Plan, the IPG Photonics Corporation Executive Severance Plan and the Restrictive Covenants Agreement govern all the contractual relationships between the parties conclusively and supersede all previous oral and written understandings or agreements between Mr. Bucher and the Company or its affiliated companies, particularly any employment contracts or service contracts which may exist, which are hereby terminated. | ||
| § 17 Side agreements, written form | ||
| Mr. Bucher is obliged to keep as secret the content of this Managing Director's Service contract as well as the content of the negotiations concerning this Managing Director's Service Contract. | ||
No side agreements have been concluded. Any amendments and additions to this Managing Director's Service Contract require written form to be valid (§ 126 German Civil Code (BGB)); the electronic form (§ 126a German Civil Code) and text form (§ 126b German Civil Code) are excluded. This also applies to revoking, amending or supplementing the written form requirement itself. Individual agreements always take precedence and apply regardless of the written form requirement (§ 305b German Civil Code (BGB)). | ||
| § 18 Applicable law/languages | ||
(1) This Managing Director's Service Contract is governed by German law. | ||
(2) This Managing Director's Service Contract has been drawn up in German and in English. Only the German version is legally authoritative. | ||
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| § 19 Severability/partial nullity | ||
| If any provision of this Managing Director's Service Contract should be or become invalid or unenforceable in whole or in part, this will not affect the validity of the other provisions of this Managing Director's Service Contract. In such case, the invalid or unenforceable provision will be replaced by a legally admissible or enforceable provision that comes as close as possible to the intended purpose of the invalid or unenforceable provision. The same applies if the Managing Director's Service Contract does not contain a provision that is actually necessary. | ||
| UNTERSCHRIFTEN | SIGNATURES | |||||||
| /s/ Mark Gitin | /s/ Paulus Bucher | |||||||
| IPG Photonics GmbH & Co. KG | Herr Dr. Paulus Bucher | |||||||
| Dated: July 1, 2025 | ||||||||
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Exhibit 10.2
IPG PHOTONICS CORPORATION EXECUTIVE SEVERANCE PLAN
(And Summary Plan Description)
Article 1. Establishment and Term of the Plan
1.1 Establishment of the Plan. IPG Photonics Corporation (the “Corporation”) established the IPG Photonics Corporation Executive Severance Plan (the “Plan”) effective on January 1, 2014, amended and restated the Plan April 1, 2018, and now has amended and restated the Plan June 1, 2019. The purpose of the Plan is to provide Severance Benefits to certain eligible executives of the Corporation and its Affiliates in accordance with the terms of the Plan. No individuals other than the Executives shall be eligible to receive Severance Benefits under the Plan. Severance Benefits for the Executives will be determined exclusively under the Plan. Following the Effective Date of the Plan, the Corporation adopted a policy of not providing employment or severance agreements to its newly hired or newly promoted employees.
The Plan, as set forth herein, is an employee welfare benefit plan within the meaning of ERISA Section 3(1), and the Corporation intends that the Plan be administered in accordance with the applicable requirements of ERISA. This Plan document, including the information provided in Appendix B hereto, is also the summary plan description of the Plan.
1.2 Plan Term. The Plan became effective on January 1, 2014, and shall continue in effect until terminated by the Corporation, subject to Section 8.1 herein.
1.3 Administration. The Plan Administrator is the named fiduciary of the Plan. The Plan Administrator may appoint, as it deems necessary or advisable, an individual or committee to act as its representative in matters affecting the Plan. The Plan Administrator shall have authority to control and manage the operation and administration of the Plan in good faith, and may adopt rules and regulations consistent with the terms of the Plan and necessary or advisable to administer the Plan properly and efficiently. In administering the Plan and providing Severance Benefits prior to a Change in Control, the Plan Administrator shall have discretionary authority to construe and interpret the Plan’s terms and to make determinations under it, including the authority to determine, in good faith, an individual’s eligibility for Severance Benefits, the reason for employment termination, and the amount of Severance Benefits payable, in accordance with the terms of the Plan. Any such interpretation of the Plan made in good faith by the Plan Administrator, and any decision made in good faith on any matter within the discretion of the Plan Administrator under the Plan, will be binding on all persons, subject to review under Article 5. In administering the Plan and providing Severance Benefits on or after a Change in Control, the Plan Administrator shall make initial determinations of entitlement to benefits and the amounts thereof in good faith and in accordance with the terms of the Plan, subject to review under Article 5.
Article 2. Definitions
Wherever used in the Plan, the following terms have the meanings set forth below and, when the meaning is intended, the initial letter of the word is capitalized:
“Accrued Benefits” means an Executive’s accrued but unpaid Base Salary (based upon the annual rate in effect on the date of employment termination) through the date of termination (payable in accordance with the Corporation’s normal payroll practice); any unpaid bonus actually earned in any year prior to the year in which the Executive’s employment terminates; business expenses incurred but not paid prior to the date of termination in accordance with the Corporation’s expense reimbursement policy; accrued but unused vacation through the date of termination; and other benefits accrued and vested or mandated under the terms of any of the Corporation’s Employee Benefit Plans.
“Affiliate” means a Person who directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, the Corporation. For purposes of the preceding sentence, the word “control” (by itself and as used in the terms “controlling,” “controlled by,” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Base Salary” means, at any time, the then regular annual base rate of pay that the Corporation is paying the Executive as annual salary, as approved by the Board or a committee of the Board and shown in the Corporation’s records (disregarding any reduction constituting Good Reason, if the Executive’s Involuntary Termination is for such Good Reason). Base Salary does not include any incentive, non-cash, equity, or similar compensation or award, or Employee Benefit Plan contributions made by the Corporation or an Affiliate.
“Board” means the Board of Directors of the Corporation.
“Cause” means:
(a) an act of fraud, embezzlement, or theft by the Executive in connection with the Executive’s duties or in the course of the Executive’s employment with the Corporation or an Affiliate;
(b) the Executive’s intentional wrongful damage to the property of the Corporation or an Affiliate;
(c) the Executive’s intentional breach of the Restrictive Covenants while the Executive remains in the employ of the Corporation or an Affiliate;
(d) an act of Gross Misconduct (as defined below);
(e) the Executive’s material violation of the Corporation’s Code of Conduct, as amended from time to time; or
(f) the Executive’s conviction for a misdemeanor involving moral turpitude or a charge of a felony;
and, in each case, the reasonable, good faith determination by the Board as hereafter provided that any such act or omission shall have been materially harmful to the Corporation or an Affiliate financially, reputationally or otherwise. For purposes of the Plan, “Gross
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Misconduct” shall mean a willful or grossly negligent act or omission that has or will have a material and adverse impact on the business or reputation of the Corporation or its Affiliates, or on the business of the customers or suppliers of the Corporation or its Affiliates as such relate to the Corporation. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for “Cause” hereunder unless and until there shall have been delivered to the 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 the Executive has committed an act set forth in subsections (a)-(e) above. Nothing herein shall limit the Executive’s right or the Executive’s beneficiaries’ right to contest the validity or propriety of any such determination, in accordance with the Claims Procedures of Article 5. For purposes of the Plan, no act or failure to act on the Executive’s part shall be considered “willful” unless it is done, or omitted to be done, by the Executive in bad faith or without reasonable belief that the Executive’s action or omission was in the best interests of the Corporation or an Affiliate. Any act or failure to act based upon authority given pursuant to a resolution duly adopted by the Board or based upon the advice of counsel for the Corporation or an Affiliate shall be conclusively presumed to be done, or omitted to be done, in good faith and in the best interests of the Corporation or an Affiliate. In addition, the Executive’s employment shall be deemed to have terminated for Cause if, based on facts and circumstances discovered after the Executive’s employment has terminated, the Board determines in reasonable good faith, within one year after the Executive’s employment is terminated, and after appropriate investigation and an opportunity for the Executive to be interviewed (with or without counsel as the Executive may determine) by a subcommittee of the independent Board members or its representative, that the Executive committed an act during his or her employment that would have justified a termination for Cause.
“Change in Control” means the first to occur of the following, with respect to each Executive individually:
(a) Any “person” (as such term is defined in Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act), including a “group” (as defined in Section 13(d)(3) of the Exchange Act), other than (i) the Corporation, (ii) any wholly-owned subsidiary of the Corporation, or (iii) any employee benefit plan (or related trust) sponsored or maintained by the Corporation or any Affiliate, becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Corporation having fifty percent (50%) or more of the combined voting power of the then-outstanding securities of the Corporation that may be cast for the election of directors of the Corporation (other than as a result of an issuance of securities initiated by the Corporation in the ordinary course of business) (the “Corporation Voting Securities”); provided, however, that the event described in this paragraph (a) shall not be deemed to be a Change in Control by virtue of any underwriter temporarily holding securities pursuant to an offering of such securities;
(b) During any period of two consecutive years, individuals who at the beginning of any such period constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least a majority of the Board, unless the election, or the nomination for election by the stockholders of the Corporation, of each new director of
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the Corporation during such period was approved by a vote of at least two-thirds of the Incumbent Directors then still in office;
(c) As the result of, or in connection with, any cash tender or exchange offer, merger, or other business combination, sale of all or substantially all of the assets or contested election, or any combination of the foregoing transactions, less than a majority of the combined voting power of the then-outstanding securities of the Corporation or any successor corporation or entity entitled to vote generally in the election of the directors of the Corporation or such other corporation or entity after such transaction is held in the aggregate by the holders of the securities of the Corporation entitled to vote generally in the election of directors of the Corporation immediately prior to such transaction; or
(d) The shareholders of the Corporation approve a plan of complete liquidation of the Corporation.
Notwithstanding the foregoing, a Change in Control shall not be deemed to occur solely because any person acquires beneficial ownership of more than fifty percent (50%) of the Corporation Voting Securities as a result of the acquisition of Corporation Voting Securities by the Corporation which reduces the number of Corporation Voting Securities outstanding; provided, however, that if after such acquisition by the Corporation such person becomes the beneficial owner of additional Corporation Voting Securities that increases the percentage of outstanding Corporation Voting Securities beneficially owned by such person, a Change in Control transaction shall then occur.
“COBRA” means the Consolidated Omnibus Budget Reconciliation Act of 1985 and the regulations thereunder, as amended from time to time.
“Code” means the U.S. Internal Revenue Code of 1986 and the regulations thereunder, as amended from time to time.
“Committee” means the Compensation Committee of the Board.
“Corporation” means the IPG Photonics Corporation or any successor thereto as provided in Article 6 herein, which entity employs the Executive.
“Disability” means the Executive is unable to perform substantially, by reason of physical or mental incapacity, the Executive’s duties or obligations to the Corporation, 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 Committee shall determine, according to the facts then available, whether and when the Disability of the Executive has occurred and shall state that date of termination in the Notice of Termination. The Committee shall make such determination in the good faith exercise of its reasonable discretion. Nothing herein shall limit the Executive’s right or the right of the Executive’s beneficiaries to contest any such determination, in accordance with Article 5.
“Effective Date” means January 1, 2014, the date the Plan became effective.
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“Employee Benefit Plan” means, subject to the Corporation’s ability to amend, modify, or terminate such Employee Benefit Plan(s) at any time and from time to time, (a) any qualified or non-qualified retirement, savings or deferred compensation plan, program or arrangement currently made available by the Corporation for its executives, (b) any such additional or substitute plan, program or arrangement that the Corporation may make available in the future and during the term of the Plan for its executives, in each case that is a “pension plan” (as such term is defined in ERISA Section 3(2)), and (c) any health and dental plan, disability plan, accidental death and dismemberment plan, survivor income plan, and life insurance plan or arrangement made available by the Corporation for its executives, and any such additional or substitute plan or arrangement that the Corporation may make available in the future and during the term of the Plan for its executives, in each case that is a “welfare plan” (as such term is defined in ERISA Section 3(1)).
“ERISA” means the Employee Retirement Income Security Act of 1974 and the regulations thereunder, as amended from time to time.
“Exchange Act” means the Securities Exchange Act of 1934 and the regulations thereunder, as amended from time to time.
“Executive” means an employee who is not a party to a Severance Agreement or an Employment Agreement and meets the criteria set forth below as a Tier One Executive, Tier Two Executive, or Tier Three Executive, as determined by the Committee in its sole discretion, taking into consideration the following guidelines and other factors the Committee deems relevant to its determination. No individuals other than those set forth on Appendix A hereto at the time of employment termination will be eligible to receive Severance Benefits.
“Tier One Executive” means any employee of the Corporation or an Affiliate who (i) has a position equal to or higher than that of Senior Vice President, and (ii) the Committee has designated as a Tier One Executive eligible to participate in, and caused his or her name to be listed on Appendix A to, the Plan, as amended from time to time.
“Tier Two Executive” means any employee of the Corporation or an Affiliate who (i) has a position equal to or higher than that of Vice President with global corporate responsibilities, reporting to the Chief Executive Officer or a Senior Vice President, and (ii) the Committee has designated as a Tier Two Executive eligible to participate in, and caused his or her name to be listed on Appendix A to, the Plan, as amended from time to time.
“Tier Three Executive” means any employee of the Corporation or an Affiliate who (i) has a position equal to or higher than that of Vice President with corporate or regional responsibilities, reporting to the Chief Executive Officer, a Senior Vice President, or a Vice President, and (ii) the Committee has designated as a Tier Three Executive eligible to participate in, and caused his or her name to be listed on Appendix A to, the Plan, as amended from time to time.
Subject to any rights an employee or Executive may have under Section 3.2 herein, if an employee or Executive no longer meets the criteria to be an Executive because the employee or
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Executive has become a party to a Severance Agreement, such employee or Executive shall be automatically removed from Appendix A and shall be ineligible to receive Severance Benefits under the Plan without further action on the part of the Committee, effective as of the date the employee or Executive becomes a party to a Severance Agreement.
“Good Reason” means the occurrence of any of the following events without the Executive’s express written consent:
(a) A material reduction by the Corporation of the Executive’s Base Salary, other than a reduction approved by the Board that similarly applies to all executive officers of the Corporation, provided that such a reduction in Base Salary shall not exceed more than twenty percent (20%) of the then Base Salary;
(b) A relocation of the offices of the Executive to a place greater than (i) fifty (50) miles in distance from the current executive offices of the Corporation in Marlborough, MA, and (ii) the current distance of Executive’s commute from the Executive’s home residence to the current executive offices of the Corporation;
(c) A failure to pay the Executive’s Base Salary or bonus approved by the Committee when due and payable.
A Tier One Executive must give the Corporation written notice of his or her intent to terminate for Good Reason within sixty (60) days of the occurrence of the event that allegedly constitutes Good Reason and, thereafter, the Executive may not use the occurrence of such event to terminate for Good Reason. The Corporation shall have a right to cure the breach, occurrence, or event for a period of thirty (30) days after notice from the Tier One Executive of his or her intention to terminate for Good Reason.
“Involuntary Termination” has the meaning given to such term in Section 3.2 herein.
“Person” has the meaning given to such term in Sections 13(d) and 14(d)(2) of the Exchange Act.
“Plan” means this IPG Photonics Corporation Executive Severance Plan, including the Appendices that are attached hereto and made a part hereof, as amended from time to time.
“Plan Administrator” means the Committee or its delegate.
“Plan Year” means the 12-month period that begins each January 1 and ends on the next December 31.
“Pro-Rated Bonus” has the meaning given to such term in subsection 3.3(a)(ii) herein.
“Release” has the meaning given to such term in Section 3.7 herein.
“Restrictive Covenants” means the terms and conditions set forth in the Confidentiality, Non-Competition and Confirmatory Assignment Agreement (or any similar or successor agreement), or other written agreement between the Executive and the Corporation or an Affiliate. If there is no Confidentiality, Non-Competition and Confirmatory Assignment
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Agreement (or any similar or successor agreement), or other written agreement between the Executive and the Corporation or an Affiliate, then “Restrictive Covenants” will have the meaning set forth in Article 9.
“Severance Agreement” means any employment or severance agreement or any other written or oral arrangement between the employee or the Executive and the Corporation or any Affiliate, which provides for severance or other payments or benefits after employment termination.
“Severance Benefits” means any payments or benefits provided to Executives under Sections 3.3 and 3.4 herein (other than the Accrued Benefits).
Article 3. Severance Benefits
3.1 Eligibility for Severance Benefits. Subject to the conditions and limitations of the Plan, an Executive who experiences an Involuntary Termination shall be entitled to receive Severance Benefits as set forth below. For purposes of the Plan, an Executive’s employment with the Corporation and its Affiliates shall be deemed to be terminated when the Executive has a “separation from service” within the meaning of Code Section 409A, and all references in the Plan to “termination of employment,” “employment termination,” or “Involuntary Termination” will be deemed to refer to such a separation from service. Upon the Executive’s separation from service for any reason, the Executive will be deemed to have resigned as of the date of the Executive’s separation from service from all offices, directorships, and fiduciary positions with the Corporation, its Affiliates, and Employee Benefit Plans.
3.2 Involuntary Termination. A Tier One Executive shall be deemed to experience an Involuntary Termination and be entitled to receive Severance Benefits under the Plan if (i) the Corporation terminates the Tier One Executive’s employment without Cause; or (ii) the Tier One Executive terminates his or her employment for Good Reason. A Tier Two Executive or Tier Three Executive shall be deemed to experience an Involuntary Termination and be entitled to receive Severance Benefits under the Plan if the Corporation terminates the Executive’s employment without Cause.
3.3 Severance Benefits. In the event that the Executive experiences an Involuntary Termination, the Executive shall be entitled to the following payments and benefits:
(a) The Corporation shall provide the Executive (or the Executive’s representative) with the following payments and benefits:
(i) The Executive’s Accrued Benefits, and
(ii) A pro-rated bonus (the “Pro-Rated Bonus”) equal to the amount, if any, the Executive would have earned based upon actual financial performance of the Corporation under the Corporation’s Short Term Incentive Compensation Plan (or any successor plan) for the Plan Year in which the Executive’s employment terminates, multiplied by a fraction, the numerator of which equals the number of days from the beginning of the applicable annual period in which
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the termination occurs through the date of Executive’s employment termination and the denominator of which equals 365. Such amount, if any, will be paid to the Executive at the time bonus payments are made to other similarly situated executives of the Corporation, but in no event later than two and a half (2½) months after the close of the calendar year in which the Executive’s right to the Pro-Rated Bonus is no longer subject to a substantial risk of forfeiture, subject to Section 3.7 herein.
(b) In addition to the amounts specified in subsection 3.3(a) herein, a Tier One Executive shall also be entitled to the following payments and benefits, subject to subsections 3.3(e), (f), and (g) and Section 3.7 herein:
(i) Continuing payments of Base Salary, payable in accordance with regular payroll practices of the Corporation, for eighteen (18) months following the date of the Executive’s Involuntary Termination.
(ii) For purposes of determining the vested portions of the Tier One Executive’s stock options and any other equity compensation awards granted on and after the Effective Date and held by the Executive on the date of the Executive’s Involuntary Termination, the Tier One Executive shall be deemed to have terminated employment twelve (12) months following the date of the Tier One Executive’s actual date of Involuntary Termination. The vested portions of the Tier One Executive’s stock options and any other equity compensation awards granted before the Effective Date and held by the Executive on the date of the Executive’s Involuntary Termination, shall be determined according to the terms of the Tier One Executive’s employment or severance agreement in effect immediately prior to the Effective Date.
(iii) The Corporation will reimburse the Tier One Executive for the full monthly cost of COBRA continuation coverage under the Corporation’s medical and dental plans for up to eighteen (18) months following the date of the Executive’s Involuntary Termination, upon submission to the Plan Administrator of proof of payment made by the Executive.
(iv) In calculation of the Pro-Rated Bonus in subsection 3(a)(ii) herein, with respect to the personal performance evaluation element of any annual bonus calculation, if all financial metric components meet or exceed the “target” level of performance, the Executive shall be deemed awarded 100% of the potential personal performance evaluation bonus; if no financial metric bonus is awarded, no personal performance evaluation bonus will be deemed awarded, and amounts in between will be determined by linear interpolation between the threshold, target and maximum levels of performance.
(c) In addition to the amounts specified in subsection 3.3(a) above, a Tier Two Executive shall also be entitled to the following payments and benefits, subject to subsections 3.3(e), (f), and (g) and Section 3.7 below:
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(i) Continuing payments of Base Salary, payable in accordance with regular payroll practices of the Corporation, for twelve (12) months following the date of the Executive’s Involuntary Termination.
(ii) The Corporation will reimburse the Tier Two Executive for the full monthly cost of COBRA continuation coverage under the Corporation’s medical and dental plans for up to twelve (12) months following the date of the Executive’s Involuntary Termination, upon submission to the Plan Administrator of proof of payment made by the Executive.
(d) In addition to the amounts specified in subsection 3.3(a) above, a Tier Three Executive shall also be entitled to the following payments and benefits, subject to subsections 3.3(e), (f), and (g) and Section 3.7 below:
(i) Continuing payments of Base Salary, payable in accordance with regular payroll practices of the Corporation, for six (6) months following the date of the Executive’s Involuntary Termination.
(ii) The Corporation will reimburse the Tier Three Executive for the full monthly cost of COBRA continuation coverage under the Corporation’s medical and dental plans for up to six (6) months following the date of the Executive’s Involuntary Termination, upon submission to the Plan Administrator of proof of payment made by the Executive.
(e) Notwithstanding the foregoing provisions of subsections 3.3(b), (c), and (d) herein, for a Tier One, Tier Two, or Tier Three Executive who experiences an Involuntary Termination within two hundred seventy (270) days of becoming employed by the Corporation, the payments and benefits under subsections 3.3(b), (c), and (d) herein above shall be limited according to the following schedule:
(i) If the Executive experiences an Involuntary Termination on or before ninety (90) days following the date the Executive became employed by the Corporation, the payments and benefits to the Executive shall be limited to twenty-five percent (25%) of payments and benefits under subsections 3.3(b), (c), or (d) herein, as applicable;
(ii) If the Executive experiences an Involuntary Termination more than ninety (90) but less than one hundred eighty (180) days following the date the Executive became employed by the Corporation, the payments and benefits to the Executive shall be limited to fifty percent (50%) of payments and benefits under subsections 3.3(b), (c), or (d) herein, as applicable; and
(iii) If the Executive experiences an Involuntary Termination more than one hundred eighty (180) but less than two hundred seventy (270) days following the date the Executive became employed by the Corporation, the payments and benefits to the Executive shall be limited to seventy-five percent (75%) of payments and benefits under subsections 3.3(b), (c), or (d) herein, as applicable.
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For purposes of this subsection 3.3(e), employment with any Affiliate shall be deemed employment with the Corporation. For illustrative purposes and the avoidance of doubt, if a Tier Two Executive became employed by the Corporation on January 1, 2019, and experienced an Involuntary Termination on April 30, 2019, the Executive would be entitled to continuing payments of Base Salary for six (6) months and the Corporation would reimburse the Tier Two Executive for the full monthly cost of COBRA continuation coverage for up to six (6) months following the date of the Executive’s Involuntary Termination.
(f) Notwithstanding the foregoing provisions of subsections 3.3(b), (c), and (d) herein, in the event that an Executive’s Involuntary Termination occurs within twenty-four (24) months following a Change in Control, the following shall apply:
(i) (1) all stock options and any other equity compensation awards granted on or after the Effective Date and held by the Executive on the date of the Executive’s Involuntary Termination shall immediately vest and become non-forfeitable; and (2) the vested portions of an Executive’s stock options and any other equity compensation awards granted before the Effective Date and held by the Executive on the date of the Executive’s Involuntary Termination, shall be determined according to the terms of the Executive’s employment or severance agreement in effect immediately prior to the Effective Date;
(ii) For purposes of subsections 3.3(b)(i) and (iii) herein, continuing payments of Base Salary shall be made for twenty-four (24) months and the Corporation will reimburse the Tier One Executive for the full monthly cost of COBRA continuation coverage for up to twenty-four (24) months, following the date of the Executive’s Involuntary Termination;
(iii) For purposes of subsections 3.3(c)(i) and (ii) herein, continuing payments of Base Salary shall be made for eighteen (18) months and the Corporation will reimburse the Tier Two Executive for the full monthly cost of COBRA continuation coverage for up to eighteen (18) months, following the date of the Executive’s Involuntary Termination; and
(iv) For purposes of subsections 3.3(d)(i) and (ii) herein, continuing payments of Base Salary shall be made for twelve (12) months and the Corporation will reimburse the Tier Three Executive for the full monthly cost of COBRA continuation coverage for up to twelve (12) months, following the date of the Executive’s Involuntary Termination.
(v) If a Change in Control occurs and payments are made under this subsection 3.3(f), and a final determination is made by legislation, regulation, or ruling directed to an Executive or the Corporation, by court decision, or by independent tax counsel, that the aggregate amount of any payments made to the Executive under the Plan and any other agreement, plan, program or policy of the Corporation in connection with, on account of, or as a result of, such Change in Control (“Total Payments”) will be subject to an excise tax under the provisions
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of Code Section 4999, or any successor section thereof (“Excise Tax”), the Total Payments shall be reduced (beginning with those that are exempt from Code Section 409A) so that the maximum amount of the Total Payments (after reduction) shall be one dollar ($1.00) less than the amount that would cause the Total Payments to be subject to the Excise Tax; provided, however, that the Total Payments shall only be reduced to the extent that the after-tax value of amounts received by the Executive after application of the above reduction would exceed the after-tax value of the Total Payments received without application of such reduction. For this purpose, the after-tax value of an amount shall be determined taking into account all federal, state, and local income, employment, and excise taxes applicable to such amount. In making any determination as to whether the Total Payments would be subject to an Excise Tax, consideration shall be given to whether any portion of the Total Payments could reasonably be considered, based on the relevant facts and circumstances, to be reasonable compensation for services rendered (whether before or after the consummation of the applicable Change in Control). To the extent Total Payments must be reduced pursuant to this Section, the Corporation, without consulting the Executive, will reduce the Total Payments to achieve the best economic benefit, and to the extent economically equivalent, on a pro-rata basis.
(1) In the event that upon any audit by the Internal Revenue Service, or by a state or local taxing authority, of the Total Payments, a change is determined to be required in the amount of taxes paid by, or Total Payments made to, an Executive, appropriate adjustments will be made under the Plan such that the net amount that is payable to the Executive after taking into account the provisions of Code Section 4999 will reflect the intent of the parties as expressed in this subsection 3.3(f). The Executive shall notify the Corporation in writing of any claim by the Internal Revenue Service that, if successful, would require payment of an Excise Tax or an additional Excise Tax on the Total Payments (a “Claim”). Such notification shall be given as soon as practicable but no later than ten (10) business days after the Executive is informed in writing of such Claim and shall apprise the Corporation of the nature of such Claim and the date on which such Claim is requested to be paid. The Executive shall not pay such Claim prior to the expiration of the thirty (30)-day period following the date on which the Executive gives such notice to the Corporation (or such shorter period ending on the date that any payment of taxes with respect to such Claim is due). If the Corporation notifies the Executive in writing prior to the expiration of such period that it desires to contest such Claim, the Executive shall: (A) give the Corporation any information reasonably requested by the Corporation relating to such Claim, (B) take such action in connection with contesting such Claim as the Corporation shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such Claim by an attorney reasonably selected by the Corporation, (C) cooperate with the Corporation in good faith in order to contest effectively such Claim, and (D)
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permit the Corporation to participate in any proceedings relating to such Claim; provided, however, that the Corporation shall bear and pay directly all costs and expenses (including additional interest and penalties) incurred in connection with such contest and shall indemnify and hold the Executive harmless for any Excise Tax, additional Excise Tax, or income tax (including interest and penalties with respect thereto) imposed as a result of such representation and payment of costs and expenses. Without limitation on the foregoing provisions of this paragraph (f)(v)(1), the Corporation, at its sole option, may pursue or forgo any and all administrative appeals, proceedings, hearings, and conferences with the taxing authority in respect of such Claim and may, at its sole option, either direct the Executive to pay the tax claimed and sue for a refund or contest the Claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one (1) or more appellate courts, as the Corporation shall determine, provided, however, that if the Corporation directs the Executive to pay such Claim and sue for a refund, the Corporation shall advance the amount of such payment to the Executive on an interest-free basis or, if such an advance is not permissible thereunder, pay the amount of such payment to the Executive as additional compensation, and shall indemnify and hold the Executive harmless from any Excise Tax, additional Excise Tax, or income tax (including interest or penalties with respect thereto) imposed with respect to such advance or additional compensation; and further provided that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which such contested amount is claimed to be due is limited solely to such contested amount. The Corporation shall reimburse any fees and expenses provided for under this paragraph (f)(v)(1) on or before the last day of the Executive’s taxable year following the taxable year in which the fee or expense was incurred, and in accordance with the other requirements of Code Section 409A and Treasury Regulation § 1.409A-3(i)(1)(v) (or any similar or successor provisions).
(2) If, after the receipt by the Executive of an amount advanced or paid by the Corporation pursuant to paragraph (f)(v)(1) above, the Executive becomes entitled to receive any refund with respect to such Claim, the Executive shall (subject to the Corporation’s complying with the requirements of paragraph (f)(v)(1)) promptly pay to the Corporation the amount of such refund (together with any interest paid or credited thereon after taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Corporation pursuant to paragraph (h)(1), a determination is made that the Executive shall not be entitled to any refund with respect to such Claim and the Corporation does not notify the Executive in writing of its intent to contest such denial of refund prior to the expiration of sixty (60) days after such determination, then such advance shall be forgiven and shall not be required to be repaid.
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(g) With respect to the period for which the Corporation will reimburse the Executive for the full monthly cost of COBRA continuation coverage under subsections 3.3(b)(iii), 3.3(c)(iii), 3.3(d)(iii), or 3.3(f) herein:
(i) Any payments or reimbursements for such COBRA premiums will be made in accordance with Treasury Regulation § 1.409A-3(i)(1)(iv) (or any similar or successor provisions);
(ii) The Corporation’s obligation to reimburse shall cease on the date the Executive becomes eligible for coverage under another group health plan offered by a new employer of the Executive or covered under a group health plan of the employer of the Executive’s spouse (in either case, which does not impose pre-existing condition limitations on the Executive’s coverage); and
(iii) Nothing in this Section 3.3 shall be construed to extend the period of time over which COBRA continuation coverage shall be provided to an Executive or the Executive’s dependents beyond that mandated by law.
(h) Continuing payments of Base Salary will not be deemed compensation for purposes of any Employee Benefit Plan.
(i) An Executive shall only be eligible for termination payments and benefits, if any, under one of the provisions of this Section 3.3. For example, if an Executive receives payments and benefits under subsection 3.3(b) of the Plan, the Executive shall not be eligible to receive payments or benefits under subsections 3.3(c), (d), or (f).
3.4 Termination Due to Death or Disability. If an Executive’s employment is terminated due to the Executive’s death or Disability, the Corporation shall pay the Executive (or the Executive’s estate or representatives) the amounts specified in subsection 3.3(a) herein, subject to Section 3.7 herein.
3.5 Termination for Any Other Reason. If an Executive’s employment is terminated for any reason other than as specified in Sections 3.2 or 3.4 herein (including, without limitation, a termination by the Corporation for Cause, the Executive shall only be entitled to receive his or her Accrued Benefits.
3.6 Notice of Termination. Any termination of an Executive’s employment by the Corporation for Cause or Disability, or by the Executive for Good Reason shall be communicated by a written notice to the other party that indicates the specific termination provision in the Plan relied upon, and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Executive’s employment under the provision so indicated.
3.7 Release. Notwithstanding anything in the Plan to the contrary, as a condition to receiving any Severance Benefits, the Executive (or, in the event of the Executive’s death or Disability, the Executive’s designated beneficiary, surviving spouse, estate, or legal representative) shall execute a comprehensive release agreement and waiver of claims against the
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Corporation in a form substantially the same as that attached hereto as Appendix C (the “Release”). The Corporation shall deliver the Release to the Executive within ten (10) days of the Executive’s termination of employment. The Executive must deliver to the Corporation an original, signed Release and the revocability period (if any) must elapse by the Release Deadline. For purposes of the Plan, the “Release Deadline” means the date that is sixty (60) days after the Executive’s termination of employment. Payment of any Severance Benefits that are not exempt from Code Section 409A shall be delayed until the Release Deadline, irrespective of when the Executive executes the Release; provided, however, that where the Executive’s termination of employment and the Release Deadline occur within the same calendar year, the payment may be made up to thirty (30) days prior to the Release Deadline, and provided further that where the Executive’s termination of employment and the Release Deadline occur in two separate calendar years, payment may not be made before the later of January 1 of the second year or the date that is thirty (30) days prior to the Release Deadline. If the Executive does not deliver an original, signed Release to the Corporation within forty-five (45) days after receipt of the same from the Corporation, (i) the Executive’s rights shall be limited to those made available to the Executive as if the Executive were terminated under Section 3.5 above, and (ii) the Corporation shall have no obligation otherwise to provide the Executive any Severance Benefits, or any other payments or benefits on account of the termination of the Executive’s employment.
By accepting Severance Benefits, the Executive acknowledges and agrees that if the Executive files a lawsuit or accepts recoveries, payments, or benefits based on any claims that the Executive has released under the Release, as a condition precedent for maintaining or participating in any lawsuit or claim, or accepting any recoveries, payments, or benefits, the Executive shall forfeit immediately such Severance Benefits and promptly reimburse the Corporation for any such amounts already provided.
3.8 Restrictive Covenants. To receive Severance Benefits under the Plan, the Executive must comply with the terms of the Restrictive Covenants. In the event the Executive violates the Restrictive Covenants during or after his or her employment with the Corporation, in addition to any other penalties or restrictions that may apply under the Restrictive Covenants, any state law, the Plan, or otherwise, the Executive shall forfeit immediately his or her entitlement to the Severance Benefits and the Executive shall promptly reimburse the Corporation for any such amounts already provided. This Section 3.8 shall survive the employer-employee relationship between the Corporation and the Executive.
3.9 Compensation Recovery Policy. Notwithstanding any provision in the Plan to the contrary, Severance Benefits will be subject to any Compensation Recovery Policy established by the Corporation and amended from time to time.
3.10 No Further Obligations. Except as provided in the Plan or in any Employee Benefit Plan, the Corporation shall not have any obligation to the Executive following the Executive’s termination of employment for any reason, including any obligation for severance payments or benefits. Except as provided in the Plan, the provision of Severance Benefits under the Plan shall have no effect upon the Executive’s rights under any Employee Benefit Plan or other employee policy or practice of the Corporation applicable to the Executive’s termination for any reason.
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3.11 Indemnification and Insurance. After the Executive’s termination of employment, the Corporation will continue the Executive’s coverage under the Corporation’s directors’ and officers’ liability insurance policy, in accordance with the terms of that policy, as it may be amended, and will continue to indemnify and hold harmless the Executive in accordance with Section 10 of the Corporation’s By-Laws and Article D – Sixth of the Corporation’s Certificate of Incorporation, as either may be amended from time to time.
3.12 No Mitigation or Offset. An Executive shall be under no obligation to seek other employment or otherwise mitigate his or her damages, and there shall be no offset against amounts due to the Executive under the Plan on account of any remuneration or benefit attributable to any subsequent employment obtained by the Executive, except as provided in subsection 3.3(g) herein.
Article 4. Code Section 409A
4.1 The Plan is intended to comply with Code Section 409A, including the exceptions for short-term deferrals, separation pay arrangements, reimbursements, and in-kind distributions, and shall be administered, construed, and interpreted in accordance with such intent.
4.2 Each payment under the Plan or any Corporation benefit plan is intended to be treated as one of a series of separate payments for purposes of Code Section 409A.
4.3 To the extent any reimbursements or in-kind benefit payments under the Plan are subject to Code Section 409A, such reimbursements and in-kind benefit payments will be made in accordance with Treasury Regulation § 1.409A-3(i)(1)(iv) (or any similar or successor provisions).
4.4 Notwithstanding anything in the Plan to the contrary, to the extent the Executive is considered a “specified employee” (as defined in Code Section 409A) and would be entitled to a payment during the six (6)-month period beginning on the Executive’s date of Involuntary Termination that is not otherwise excluded under Code Section 409A under the exception for short-term deferrals, separation pay arrangements, reimbursements, in-kind distributions, or any otherwise applicable exemption, the payment will not be made to the Executive until the earlier of the six (6)-month anniversary of the Executive’s date of termination or the Executive’s death and will be accumulated and paid on the first day of the seventh month following the date of termination.
4.5 The Corporation may amend the Plan to the minimum extent necessary to satisfy the applicable provisions of Code Section 409A.
4.6 The Corporation cannot guarantee that the Severance Benefits or other payments and benefits provided to an Executive under the Plan will satisfy all applicable provisions of Code Section 409A.
Article 5. Claims Procedures
5.1 Claims Procedures. The Corporation will provide Severance Benefits to the Executive under the Plan without the necessity of a formal written claim by the Executive.
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However, if any person believes he or she is being denied any rights or benefits under the Plan, or receives an adverse benefit determination, such person (or the person’s duly authorized representative) may file a claim in writing with the Plan Administrator within ninety (90) days following the applicable Executive’s date of termination. If any claim for Severance Benefits under the Plan is wholly or partially denied, the Plan Administrator will notify the claimant of its decision in writing. The notification will set forth, in a manner calculated to be understood by the claimant, the following: (a) the specific reason or reasons for the adverse determination, (b) reference to the specific Plan provisions on which the determination is based, (c) a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary, and (d) a description of the Plan’s review procedures and the time limits applicable to such procedures, including a statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following an adverse benefit determination on review. Such notification will be given within ninety (90) days after the claim is received by the Plan Administrator, or within one hundred eighty (180) days, if the Plan Administrator determines that special circumstances require an extension of time for processing the claim. If the Plan Administrator determines that an extension of time for processing is required, written notice of the extension will be furnished to the claimant prior to the termination of the initial 90-day period. The extension notice will indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a benefit determination.
5.2 Appeals and Review Procedures. Within sixty (60) days after the receipt of notification of an adverse benefit determination, a claimant (or the claimant’s duly authorized representative) may file a written request with the Plan Administrator for a review of the claimant’s adverse benefit determination and submit written comments, documents, records, and other information relating to the claim for benefits. A request for review will be deemed filed as of the date of receipt of such written request by the Plan Administrator.
A claimant will be provided, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits. The Plan Administrator shall take into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. The Plan Administrator will notify the claimant of its decision on review in writing. Such notification will be written in a manner calculated to be understood by the claimant and will contain the following: (a) the specific reason or reasons for the adverse determination, (b) reference to the specific Plan provisions on which the benefit determination is based, (c) a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits, and (d) a statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following the final benefit determination on appeal. The decision on review will be made within sixty (60) days after the request for review is received by the Plan Administrator or within one hundred twenty (120) days if the Plan Administrator determines that special circumstances require an extension of time for processing the claim. If the Plan Administrator determines that an extension of time for processing is required, written notice of the extension will be furnished
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to the claimant prior to the termination of the initial sixty (60) day period. The extension notice will indicate the special circumstances requiring an extension of time and the date by which the Plan expects to render the determination on review. The Plan Administrator’s decision on review shall be final and binding upon the claimant.
5.3 Disability Claims and Review Procedures. If a claim involves a Disability determination, the claims and review procedures described in Sections 5.1 and 5.2 herein will apply but the time limits will differ. The Plan Administrator will have forty-five (45) calendar days to respond to the initial claim, and may extend the forty-five (45) calendar day period by up to thirty (30) calendar days if an extension is necessary and the Plan Administrator notifies the Executive during the forty-five (45) calendar day period of the reasons for the extension and the date by which the Plan Administrator expects to make a decision. The response deadline may be extended for an additional thirty (30) calendar day period if the Plan Administrator requires more time and notifies the Executive during the first thirty (30) calendar day extension period of the reasons for the extension and the date by which the Plan Administrator expects to make a decision. The Plan Administrator will notify the claimant of its decision in writing. The notification shall be provided in a culturally and linguistically appropriate manner) and will contain the following: (i) the specific reason or reasons for the adverse determination, including the basis for disagreeing with or not following (if applicable) (1) the views presented by the claimant to the Plan Administrator of health care professionals treating the claimant and vocational professionals who evaluated the claimant; (2) the views of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with a claimant’s adverse benefit determination, without regard to whether the advice was relied upon in making the benefit determination; and (3) a disability determination regarding the claimant presented by the claimant to the Plan made by the Social Security Administration, (ii) reference to the specific Plan provisions on which the benefit determination is based, (iii) a statement that the claimant is entitled to receive, upon written request to the Plan Administrator and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits, (iv) if an internal rule, guideline, protocol or similar criterion was relied on in making the decision, a copy of that document will be furnished, free of charge, upon written request to the Plan Administrator. If no internal rule, guideline, protocol or similar criterion was relied on in making the decision, a statement that no such document was relied upon will be furnished, (v) if the adverse benefit determination is based on a medical necessity or experimental treatment or similar exclusion or limit, the scientific or clinical judgment for the determination, applying the terms of the Plan to the claimant’s medical circumstances will be furnished, free of charge, upon written request to the Plan Administrator, and (vi) a statement of the claimant’s right to bring a civil action under ERISA Section 502(a) following the final benefit determination on appeal.
An Executive will have one hundred eighty (180) days after receiving a notice of adverse benefit determination involving a Disability determination in which to submit a request for review of the adverse determination. The Plan Administrator shall reach a final decision and notify the Executive in writing of the decision within forty-five (45) days after the date it receives the Executive’s request for review, provided that the Plan Administrator may extend the response time by up to an additional forty-five (45) days by notifying the Executive in writing of
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the extension. Similar to the above, notification will be given within a reasonable period of time, but not later than forty-five (45) days after the claim is received by the Plan Administrator, or within ninety (90) days, if the Plan Administrator determines that special circumstances require an extension of time for processing the claim. If the Plan Administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial forty-five (45) day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render a benefit determination.
5.5 Legal Actions. The claims and review procedures described in this Article 5 must be exhausted before a legal action may be brought against the Corporation or the Plan. If the claim is a Disability claim appeal and occurs on or after April 1, 2018, and the claimant believes that the Plan Administrator failed to comply with the Claims Procedures herein, the claimant may request a written explanation of the violation from the Plan Administrator, and the Plan Administrator will provide such explanation within ten (10) days, including a specific description of its basis, if any, for asserting that the violation should not cause the administrative remedies available under the Plan to be deemed exhausted. Any legal action must be filed within one year of receiving final notice of a denied claim. With respect to any decision or determination of the Plan Administrator that is or was made after a Change in Control, a reviewing arbitrator or court shall apply a de novo standard of review.
Article 6. Successors
6.1 Successors to the Corporation. The Corporation shall require any successor (whether direct or indirect, by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) of all or a significant portion of the stock or assets of the Corporation by agreement, to expressly assume and agree to maintain the Plan in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place, subject to Section 8.1 herein. Regardless of whether such agreement is executed, the Plan will be binding upon any successor in accordance with the operation of law and such successor shall be deemed the “Corporation” for purposes of the Plan.
6.2 Assignment by the Executive. The Plan will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If the Executive dies while any Severance Benefits still would be owed to the Executive hereunder had the Executive continued to live, the Corporation will continue to provide such Severance Benefits, unless otherwise provided herein, in accordance with the terms of the Plan to the Executive’s beneficiary last designated by written instrument delivered by the Executive to the Corporation prior to the date of death. If no such designated beneficiary survives the Executive, such amount must be paid to the Executive’s surviving spouse, or if none, to the Executive’s lawful descendants per stirpes then living, or if none survive the Executive, to the legal representative of the Executive’s estate, or if none is appointed within ninety (90) days of the date of death, to the Executive’s heirs at law under the laws of the state in which the Executive is domiciled at the date of death.
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6.3 Payment of Benefits Upon Executive’s Disability. If an Executive entitled to Severance Benefits experiences a Disability or is otherwise incapacitated, the Corporation upon receipt of satisfactory evidence of such legal incapacity may, in its sole discretion, cause such Severance Benefits to be provided to some other person, persons, or institution on behalf of the Executive.
Article 7. Miscellaneous
7.1 Employment Status. The Plan is not a contract of employment, and eligibility under the Plan does not give the Executive the right to be rehired or retained in the employ of the Corporation or an Affiliate on a full-time, part-time, or any other basis, or to receive any benefit under any other plan of the Corporation. Eligibility under the Plan does not give the Executive any right, claim, or legal entitlement to any Severance Benefits, unless that right or claim has specifically accrued under the terms of the Plan.
7.2 No Reinstatement. By accepting Severance Benefits, the Executive waives any reinstatement or future employment with the Corporation and agrees never to apply for employment or otherwise seek to be hired, rehired, employed, reemployed, or reinstated by the Corporation.
7.3 Effect of Receiving Severance Benefits. An Executive’s receipt of Severance Benefits does not constitute any sort of extension or perpetuation of employment beyond the Executive’s actual date of employment termination.
7.4 Ethical Standards. By accepting Severance Benefits, the Executive acknowledges and agrees that he or she has been given an adequate opportunity to advise the Corporation’s human resources, legal, or other relevant management division, and has so advised such division in writing, of any facts that the Executive is aware of that constitute or might constitute a violation of the Corporation’s Code of Conduct or any ethical, legal, or contractual standards or obligations of the Corporation or any Affiliate. The Executive further acknowledges and agrees that the Executive is not aware of any existing or threatened claims, charges, or lawsuits that he or she has not disclosed to the Corporation.
7.5 Interests Not Transferable. The interests of persons entitled to Severance Benefits are not subject to their debts or other obligations and, except as may be required by the tax withholding provisions of the Code or any state’s income tax act, or pursuant to an agreement between the Executive and the Corporation, may not be voluntarily sold, transferred, alienated, assigned, or encumbered.
7.6 Entire Plan. The Plan contains the entire understanding of the Corporation and the Executive with respect to the subject matter herein. The Severance Benefits shall be in lieu of and reduced by any severance, notice, termination pay, or the like that may be payable to an Executive under any employment or other agreement, plan or practice of the Corporation or any Affiliate, or that may be payable by any Federal, state, local, or foreign law, statute, regulation, ordinance, or the like (including the Worker Adjustment and Retraining Notification Act or any similar state or foreign law). Any Severance Benefits will be offset against any severance, notice, or termination pay required to be paid by the Corporation or its Affiliates pursuant to
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federal, state, local, or foreign law or ordinance, or any offer letter, employment agreement or other plan, policy, or agreement between the Corporation and the Executive.
7.7 Conflicting Plans. The Plan supersedes any other generally applicable severance-related plan or policy of the Corporation in effect on the date the Corporation adopts the Plan. Payments or benefits provided to an Executive under any Employee Benefit Plan or other employee benefit plan are governed solely by the terms of that plan. Any obligations or duties of an Executive pursuant to any separate non-competition or other agreement with the Corporation will be governed solely by the terms of that agreement, and will not be affected by the terms of the Plan, except to the extent that agreement expressly provides otherwise. Severance Benefits are not taken into account for purposes of contributions or benefits under any other Employee Benefit Plans, except as expressly provided therein. Further, the period of coverage under any Employee Benefit Plan is not extended due to the provision of Severance Benefits. For the avoidance of doubt, in no event shall an Executive be eligible to receive Severance Benefits and additional severance payments or benefits in any amount or of any kind under a separate employment or severance arrangement with the Corporation or any Affiliate.
7.8 Notices. Any and all notices, requests, demands, and other communications provided for herein shall be sufficient if in writing and shall be deemed to have been duly given if delivered by hand or if sent by registered or certified mail, return receipt requested, sent by a nationally recognized overnight courier for delivery, or sent by other electronic means generating a receipt confirming delivery of the notice. 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, with attention to the “Plan Administrator of the IPG Photonics Corporation Executive Severance Plan,” c/o the General Counsel, and notice to the Executive shall be addressed to the Executive at the Executive’s last address as shown on the records of the Corporation.
7.9 Tax Withholding. The Corporation shall withhold from any Severance Benefits all Federal, state, local, or other taxes as legally required to be withheld, as well as any other amounts authorized or required by policy, including, but not limited to, withholding for garnishments and judgments or other court orders.
7.10 Severability. In the event any provision of the Plan shall be held illegal or invalid for any reason, the illegality or invalidity will not affect the remaining parts of the Plan, and the Plan must be construed and enforced as if the illegal or invalid provision had not been included. Further, the captions of the Plan are not part of the provisions herein and will have no force or effect. Notwithstanding anything in the Plan to the contrary, the Corporation shall have no obligation to provide any Severance Benefits to the Executive hereunder to the extent, but only to the extent, that such provision is prohibited by the terms of any final order of a Federal, state, or local court or regulatory agency of competent jurisdiction, provided that such an order shall not affect, impair, or invalidate any provision of the Plan not expressly subject to such order.
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7.11 Gender and Number. Except where otherwise indicated by the context, any masculine term used herein includes the feminine, any feminine term used herein includes the masculine, the plural includes the singular, and the singular includes the plural.
7.12 Arbitration. Any controversy or claim arising out of or relating to the Plan or otherwise arising out of the 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, by a single arbitrator, 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 the Executive or the Corporation 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 7.12 shall be specifically enforceable. Neither an Executive, the Corporation, nor the arbitrator shall disclose the existence, content, or results of any arbitration hereunder without the prior written consent of all parties. Notwithstanding the foregoing, this Section 7.12 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 7.12. 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.
7.13 Applicable Law. The Plan 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. To the extent that any court action is permitted consistent with or to enforce Section 7.12 herein, 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, Worcester Division. Accordingly, with respect to any such court action, the 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.
7.14 Action by Corporation. Any action required of or permitted to be taken by the Corporation under the Plan must be by written resolution of the Board or Committee, by written resolution of a person or persons authorized by resolutions of the Board, or by a duly authorized committee.
7.15 Plan Funding. The Corporation will provide all Severance Benefits due and owing directly out of its general assets. To the extent that an Executive acquires a right to receive Severance Benefits, such right shall be no greater than the right of an unsecured general creditor of the Corporation. Nothing herein contained may require or be deemed to require, or prohibit or be deemed to prohibit, the Corporation to segregate, earmark, or otherwise set aside any funds or other assets, in trust or otherwise, to provide for any Severance Benefits.
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7.16 Days. All references in the Plan to days shall mean calendar days, unless otherwise specifically noted to the contrary.
Article 8. Amendment and Termination
8.1 Amendment and Termination. The Corporation reserves the right, on a case-by-case basis, individual Executive basis, or a general basis, to amend the Plan at any time and to thereby alter, reduce or eliminate any benefit under the Plan, in whole or in part, at any time; provided that
(a) No amendment or termination of the Plan that has the effect of (i) removing an Executive from the list of Executives Eligible to Participate in the Plan contained in Appendix A hereto, (ii) eliminating or reducing the amount of benefits payable (if any) to any Executive, or (iii) adversely affecting the benefits or rights of an Executive under the Plan, may be, without the express written consent of such Executive, retroactive or effective until the date that is two years after the later of (A) the date the Corporation adopts such amendment or termination or (B) the date the Corporation provides written notice of such amendment or termination to the affected Executive(s) (with the later of such dates referred to herein as the “Amendment Effective Date”); provided that any such amendment or termination shall not eliminate or reduce any benefit with respect to any termination of employment that occurs on or before the Amendment Effective Date.
(b) If a Change in Control occurs before the Amendment Effective Date, then the effective date of an amendment described in subsection 8.1(a) or termination of the Plan shall be postponed as to the affected Executive(s) until the date that is at least one year after the Change in Control occurs. For the avoidance of doubt, if the Corporation amended the Plan (and gave notice) on January 15, 2019, to remove Executive A from the list of Executives Eligible to Participate in the Plan, a Change in Control occurred on December 1, 2020, and Executive A experienced an Involuntary Termination on September 1, 2021, Executive A would be entitled to Severance Benefits under the Plan under the terms and conditions of the Plan in effect immediately prior to January 15, 2019.
(c) Before a Change in Control, the demotion of an employee or Executive from a position eligible for one tier of Severance Benefits to a position eligible for a lower tier of Severance Benefits shall not be deemed to have eliminated or reduced the amount of benefits payable (if any) to the Executive or adversely affecting the benefits or rights of the Executive under the Plan for purposes of subsection 8.1(a) above.
8.2 Notice of Amendment or Termination. The Corporation will notify the Executives, including, but not limited to, Executives receiving Severance Benefits, of any material amendment or termination of the Plan within a reasonable time.
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Article 9 Restrictive Covenants
9.1 The Corporation’s Need for Restrictive Covenants. Each Executive understands the global nature of the Corporation’s business and the efforts the Corporation undertakes to develop and protect its business and competitive advantage. Accordingly, the Executives recognize and acknowledge that the scope and duration of the restrictions described in the Plan are reasonable and necessary to protect the legitimate business interests of the Corporation and that the Executive accepts the restrictive covenants imposed by the Plan in exchange for the protection offer by the Plan.
9.2 Confidentiality. An Executive shall not reveal and will not at any time, whether during or after the termination of employment, reveal to anyone outside the Corporation any of the trade secrets or confidential information of the Corporation, its customers or suppliers, or any information received in confidence from third parties by the Corporation. Confidential information of the Corporation is any information or material (a) generated or collected by or used in the operation of the Corporation that relates to the actual or anticipated business, marketing and sales, strategic planning, products, services, research and development, or production and/or manufacturing processes, of the Corporation or its customers or suppliers, including its and their organization, personnel, customers, and finances; or (b) suggested by or resulting from any task assigned to the Executive or work performed by the Executive for or on behalf of the Corporation. An Executive shall not and will not at any time, whether during or after the termination of employment, take, use, or permit to be used any notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation, or other materials of any nature relating to any matter within the scope of the business of the Corporation or concerning any of its dealings or affairs otherwise than for the benefit of the Corporation. An Executive shall not use or permit to be used and shall not, after the termination of employment, use or permit to be used any such notes, memoranda, reports, lists, records, drawings, sketches, specifications, software programs, data, documentation, or other materials, it being agreed that all of the foregoing shall be and remain the sole and exclusive property of the Corporation. The Executives also understand that the Corporation has received and will receive from third parties information that is confidential or proprietary (“Third-Party Information”) and that is subject to restrictions on the Corporation regarding its use and disclosure. An Executive, both during and after termination of employment will hold Third-Party Information in the strictest confidence and will not disclose or use Third-Party Information except as permitted by the agreement between the Corporation and the relevant third party, unless expressly authorized to act otherwise by the Corporation. An Executive must report known or suspected unauthorized disclosures of confidential or proprietary information of the Corporation by any other person immediately to an Officer of the Corporation.
9.3 Non-Competition; Non-Solicitation. In view of the fact that any activity of an Executive in violation of the terms of this Article 9 would adversely affect the Corporation and its Affiliates, and to preserve the goodwill associated with the Corporation’s business, the following restrictions apply to each Executive:
(a) For one (1) year after the date on which the Executive’s employment with the Corporation or any Affiliate terminates for any reason, the Executive will not, without
23
the express written consent of the Corporation, directly or indirectly, anywhere in the United States, Europe, or Asia, engage in any activity that 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 Corporation (or any subsidiary of the Corporation), whose business, activities, products or services are competitive with the products/technologies/services of the Corporation. Each Executive recognizes and acknowledges that, because of the global-based nature of the Corporation’s business, the geographic scope as set forth above is reasonable and fair. 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 of the equity of such enterprise. For the avoidance of doubt, if a Tier Two Executive terminated employment with the Corporation and all of its Affiliates on July 1, 2014, regardless of whether such termination of employment constituted an Involuntary Termination, the Restricted Period applicable to such Executive would be twelve (12) months following the date of termination, or until June 30, 2015.
(b) The Executive hereby agrees that during the period commencing on the date which the Severance Plan becomes effective with respect to such Executives and ending on the date which is eighteen (18) months after the date on which the Executive’s employment with the Corporation and its Affiliates terminates for any reason, the Executive will not, without the express written consent of the Chief Executive Officer of the Corporation, (i) hire or engage or attempt to hire or engage for or on behalf of himself or herself or any such competitor any officer or employee of the Corporation or any of its subsidiaries, or any former employee of the Corporation and any of its subsidiaries who was employed during the one-year period immediately preceding the date on which the Executive’s employment or service relationship with the Corporation or any of its subsidiaries was terminated for any reason, (ii) encourage for or on behalf of himself or any such competitor any such officer or employee to terminate my relationship or employment with the Corporation or any of its subsidiaries, (iii) solicit for or on behalf of himself or any such competitor any current or prospective client or supplier of the Corporation or any of its subsidiaries with whom the Executive had contact during employment by the Corporation, or (iv) divert to any person (as hereinafter defined) any current or prospective client with whom the Executive had contact during employment by the Corporation or business opportunity of the Corporation or any of any of its subsidiaries.
9.4 Certain Remedies; Severability. In the event the Executive violates the Restrictive Covenants or the provisions of this Article 9 during or after his or her employment with the Corporation, in addition to any other penalties or restrictions that may apply under the Restrictive Covenants, any state law, or otherwise, the Executive shall forfeit immediately his or her entitlement to the Severance Benefits and the Executive shall promptly reimburse the Corporation for any such amounts already provided. In the event that any provision of this Article 9 shall be determined by any court of competent jurisdiction to be unenforceable by
24
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 an Executive may have against the Corporation or any of its Affiliates shall not constitute a defense or bar to the enforcement of this Article 9. This Article 9 shall survive the employer-employee relationship between the Corporation and the Executive.
25
Appendix A
EXECUTIVES ELIGIBLE TO PARTICIPATE IN THE
IPG PHOTONICS CORPORATION EXECUTIVE SEVERANCE PLAN
Notwithstanding the provisions of subsections 3.3(b) and (f) of the Plan, in the event that a Tier One Executive’s Involuntary Termination occurs within twenty-four (24) months following a Change in Control, in addition to the payments and benefits provided in subsection 3.3(b), the Tier One Executive also shall be entitled to a lump sum cash payment equal to two (2) times the Executive’s average annual bonus over the three (3) completed years immediately preceding the date of the Change in Control, payable as soon as reasonably practicable after the date of termination, but in no event later than two and a half (2½) months after the close of the calendar year in which the Executive’s right to the Bonus is no longer subject to a substantial risk of forfeiture.
No amendment or termination of the Plan that has the effect of removing an Executive from this Appendix A may be, without the written consent of such Executive, (a) effective until the date that is two (2) years after the later of adoption of such amendment or termination or written notice of such amendment or termination to the affected Executive(s), or (b) retroactive; provided, that any such amendment or termination shall not eliminate or reduce any benefit with respect to any termination of employment that occurs on or before such amendment or termination becomes effective.
Appendix A
Appendix B
Additional Information for Summary Plan Description
This Appendix B, together with the Plan document, constitutes the summary plan description of the Plan. References in this Appendix B to “you” or “your” are references to the Executive. Any term capitalized but not defined in this Appendix B will have the meaning set forth in the Plan.
Your Rights Under ERISA
As a participant in the Plan, you are entitled to certain rights and protections under ERISA. ERISA provides that all Plan participants shall be entitled to:
Receive information about the Plan and benefits offered under the Plan.
Examine, without charge, at the Plan Administrator’s office and at other specified locations, all documents governing the Plan, and a copy of the latest annual report filed by the Plan with the U.S. Department of Labor and available at the Public Disclosure Room of the Employee Benefit Security Administration.
Obtain, upon written request to the Plan Administrator, copies of documents governing the operation of the Plan, and copies of the latest annual report and updated summary plan description. The Plan Administrator may make a reasonable charge for the copies.
Prudent Action by Plan Fiduciaries
In addition to creating rights for Plan participants, ERISA imposes duties upon the people who are responsible for the operation of the Plan. The people who operate your Plan, called fiduciaries of the Plan, have a duty to do so prudently and in the interest of you and other Plan participants and beneficiaries. No one, including the Corporation, or any other person, may fire you or otherwise discriminate against you in any way to prevent you from exercising your rights under ERISA.
Enforce Your Rights
If your claim for a benefit is denied or ignored in whole or in part, you have a right to know why this was done, to obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules.
Under ERISA, there are steps you can take to enforce the above rights. For instance, if you request a copy of Plan documents or the latest annual report from the Plan and do not receive them within 30 days, you may file suit in a Federal court. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to $110 a day until you receive the materials, unless the materials were not sent because of reasons beyond the control of the Plan Administrator. If you have a claim for benefits that is denied or ignored, in whole or in part, you may file suit in a state or Federal court. If you are discriminated against for asserting your rights, you may seek assistance from the U.S. Department of Labor, or you may file suit in
Appendix B
a Federal court. The court will decide who should pay court costs and legal fees. If you are successful, the court may order the person you have sued to pay these costs and fees. If you lose, the court may order you to pay these costs and fees, for example, if it finds your claim is frivolous.
Assistance With Your Questions
If you have any questions about the Plan, you should contact the Plan Administrator. If you have any questions about this statement or about your rights under ERISA, or if you need assistance in obtaining documents from the Plan Administrator, you should contact the nearest office of the Employee Benefits Security Administration, U.S. Department of Labor, listed in your telephone directory or the Division of Technical Assistance and Inquiries, Employee Benefits Security Administration, U.S. Department of Labor, 200 Constitution Avenue N.W., Washington, D.C. 20210. You also may obtain certain publications about your rights and responsibilities under ERISA by calling the publications hotline of the Employee Benefits Security Administration.
General Plan Information
Appendix B
| Plan Sponsor: | IPG Photonics Corporation 377 Simarano Drive Marlborough, Massachusetts 01752 (508) 373-1100 | ||||
| Plan Name: | IPG Photonics Corporation Executive Severance Plan | ||||
| Type of Plan: | ERISA welfare benefit plan | ||||
| Source of Funds: | The Corporation will pay all benefits due and owing under the Plan directly out of its general assets. To the extent that an Executive acquires a right to receive benefits under the Plan, such right shall be no greater than the right of an unsecured general creditor of the Corporation. | ||||
| Plan Number: | 510 | ||||
| Employer Identification Number: | 04-3444218 | ||||
| Plan Administrator: | Compensation Committee of the Board of Directors of IPG Photonics Corporation c/o General Counsel 377 Simarano Drive Marlborough, Massachusetts 01752 (508) 373-1100 | ||||
| Agent for Service of Legal Process: | Plan Administrator | ||||
| Plan Year: | Calendar Year (January 1 – December 31) | ||||
| Successors: | The Corporation shall require any successor (whether direct or indirect, by purchase, merger, reorganization, consolidation, acquisition of property or stock, liquidation, or otherwise) of all or a significant portion of the stock or assets of the Corporation by agreement, to expressly assume and agree to maintain the Plan in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place. Regardless of whether such agreement is executed, the Plan will be binding upon any successor in accordance with the operation of law and such successor shall be deemed the “Corporation” for purposes of the Plan. | ||||
| Binding Legal Contract: | The Plan shall be a binding legal contract between the Corporation and the Executive. | ||||
Appendix B
Appendix C
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 [____________] (hereinafter “Executive”).
WHEREAS, Executive’s employment with the Corporation is terminated effective [__________________] (“Termination Date”) and the Corporation and Executive have voluntarily agreed to the terms of this Agreement in exchange for severance benefits under the IPG Photonics Corporation Executive Severance Plan effective on January 1, 2014 (the “Plan”), 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 Plan 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 Plan, including his obligations under Section 3.8, the Corporation will pay Executive the applicable severance provided in Section 3.3 [Note—actual agreement to specify the applicable subsections of Section 3.3] of the Plan. Except as specifically provided in this Agreement, the Plan and any applicable plans, programs or arrangements of the Corporation including, without limitation, the Corporation’s Certificate of Incorporation or By-laws, as either may be amended from time to time, the IPG Photonics Corporation 2006 Incentive Compensation Plan, as amended or any successor thereto (the “Equity 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, successors 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, successors, and agents, and each of its and their respective predecessors, successors and
Appendix C
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 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 Americans with Disabilities Act, the Equal Pay Act, the Family and Medical Leave 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, color, religion, national origin, marital status, sexual orientation, pregnancy, gender identity, transgender status, genetic carrier status, ancestry, harassment, parental status, handicap, disability, retaliation, veteran status, any military service or application for military service, or any other category protected under federal or state law); 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.
Executive not only releases and discharges the Releasees from any and all claims as stated above that Executive could make on Executive’s own behalf or on behalf of others, but also those claims that might be made by any other person or organization on Executive’s behalf, and Executive specifically waives any right to recover any damage awards as a member of any class in a case in which any claim(s) against the Releasees are made involving any matters.
Without in any way limiting the Release herein, Executive also specifically releases, remises, discharges, indemnifies and holds harmless the Releasees from any claims for back wages, salary, vacation pay, draws, incentive pay, bonuses, stock and stock options, commissions, and any and all other forms of compensation, attorneys’ fees, or other costs or
Appendix C
sums that arise or may arise under the Massachusetts Wage Act, including without limitation, M.G.L. c. 149, §§ 105A, 148 and 150, and M.G.L. c. 151.
This Release does not apply to claims for workers’ compensation benefits, unemployment insurance benefits or any other claim that cannot lawfully be waived by this Agreement.
This Release does not apply to any claims arising solely after the execution of this Agreement or to any claims arising from a breach of this Agreement.
Notwithstanding the foregoing, nothing in this Agreement shall bar or prohibit Executive from contacting, filing a charge or complaint with, seeking assistance from or participating in any proceeding before any federal or state administrative agency to the extent permitted by applicable federal, state and/or local law. However, Executive nevertheless will be prohibited to the fullest extent authorized by law from obtaining monetary damages or other personal relief in any agency proceeding in which Executive does so participate.
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, as either may be amended from time to time, the Equity 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, except as to statements required by law, compelled through valid legal process, or to any local, state or federal agency, Executive 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, except as to statements required by law, compelled through valid legal process, or to any local, state or federal agency, 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.
Appendix C
5. No Assignment of Causes of Action. Executive represents and warrants that Executive has not filed or caused to be filed against the Releasees any claims, actions, or lawsuits. Executive further represents and warrants that Executive 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. Ethical Standards. Executive acknowledges and agrees that he or she has been given an adequate opportunity to advise the Corporation’s human resources, legal, or other relevant management division, and has so advised such division in writing, of any facts that the Executive is aware of that constitute or might constitute a violation of any ethical, legal, or contractual standards or obligations of the Corporation or any affiliate. Executive further acknowledges and agrees that Executive is not aware of any existing or threatened claims, charges, or lawsuits that he or she has not disclosed to the Corporation.
7. 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 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” (as defined in the Plan).
8. 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) calendar 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) calendar day period, but is not required to do so. Under ADEA, Executive has seven (7) calendar 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) calendar 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 377 Simarano Drive, Marlborough, MA 01752. 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) calendar days of signing it, this Agreement shall become enforceable and effective on the seventh (7th) calendar day after Executive signs this Agreement (“Effective Date”).
9. Governing Law; Disputes. Except as provided in Section 7.12 of the Plan, 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 3.8 of the Plan may also be brought in Executive’s state of residency or any other forum in which Executive is subject to personal jurisdiction. In addition, Executive and the Corporation
Appendix C
specifically consent to personal jurisdiction in the State of Massachusetts for purposes of this Agreement.
10. 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.
11. 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.
12. 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.
13. 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 Executive has no future employment or contractual relationship with the Corporation other than the contractual relationship created by this Agreement, the Plan, any other applicable employee pension or health and welfare plans, programs or arrangements of the Corporation including, without limitation, the Corporation’s Certificate of Incorporation or By-laws, as either may be amended from time to time, the Equity 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.
14. No Representations. Executive represents that Executive 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.
15. 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.
16. 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,
Appendix C
state, local, or other income or other tax laws requiring withholding with respect to compensation and benefits provided to Executive pursuant to this Agreement.
17. 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.
18. 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 Plan, any other applicable plans, programs or arrangements of the Corporation including, without limitation, the Corporation’s Certificate of Incorporation or By-laws, as either may be amended from time to time, the Equity 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 has voluntarily entered into this Agreement by signing below as of the date(s) set forth above.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date indicated above.
IPG PHOTONICS CORPORATION By: Its: | EXECUTIVE [_______________________] | ||||
Appendix C
Appendix D
IPG PHOTONICS CORPORATION EXECUTIVE SEVERANCE PLAN
ACKNOWLEDGMENT AND ACCEPTANCE OF
THE TERMS AND CONDITIONS OF THE PLAN
IPG Photonics Corporation (the “Corporation”) has established the IPG Photonics Corporation Executive Severance Plan (the “Plan”). The Plan provides severance payments and benefits to certain eligible executives in the event of Involuntary Termination (as defined in the Plan). You are eligible to participate in the Plan.
By the signatures below of the representative of the Corporation and the Executive named herein, the Corporation and the Executive agree that the Corporation hereby designates the Executive as eligible to participate in the Plan, and the Executive hereby acknowledges and accepts such participation, subject to the terms and conditions of the Plan, and agrees to the terms of the Plan, which is attached hereto and made a part hereof.
Name of Executive:
Date of Eligibility and Participation:
At Will Employment. Nothing in this Acknowledgement and Acceptance or in the Plan confers upon the Executive any right to continue in employment for any period of specific duration or interfere with or otherwise restrict in any way the rights of the Corporation or of the Executive, which rights are hereby expressly reserved by each, to terminate the Executive’s employment at any time for any reason.
Restrictive Covenants. The Executive is voluntarily willing to accept the restrictive covenants imposed by the Plan in exchange for the protection offer by the Plan.
Amendment and Termination of Plan. The Corporation reserves the right, on a case-by-case basis or on a general basis, to amend the Plan in accordance with Article 8 thereof. Subject to Article 8 of the Plan, no amendment or termination of the Plan that has the effect of removing an Executive from Appendix A may be, without the express written consent of such Executive, (a) effective until a date that is two (2) years after the later of adoption of such amendment or termination or written notice of such amendment or termination to the affected Executive(s); or (b) retroactive. Subject to Article 8 of the Plan, no amendment or termination shall eliminate or reduce any benefit with respect to any Executive who experiences a termination of employment that occurs on or before such amendment or termination becomes effective.
| EXECUTIVE: | IPG PHOTONICS CORPORATION | ||||
| By: ________________________________ | |||||
Signature | Title: _______________________________ | ||||
Attachment:
IPG Photonics Corporation Executive Severance Plan
Appendix D