exv10w25



 





Exhibit 10.25




NONCOMPETITION AGREEMENT




     THIS CONFIDENTIALITY AND NONCOMPETITION AGREEMENT (this “Agreement”) is executed and made
effective as of the       day of                     , 200   by and between TomoTherapy Incorporated, a
Wisconsin corporation (the “Company”), and the undersigned employee (“Employee”).



RECITALS




     The Company is engaged in the highly-competitive and specialized business of developing and
selling products and services that deliver and/or support the imaging, planning, delivery, or
verification of radiation therapy and/or radiation surgery to patients with cancer and other
diseases treated with radiation therapy and/or radiation surgery. Employee desires to be employed
by or continued to be employed by the Company, and acknowledges he or she will have access to
certain knowledge and information developed by and for the Company at great expense and shall
become identified with the Company’s goodwill. The Company protects its confidential information
and goodwill from use and/or disclosure by others, which is essential for carrying out the
Company’s business in a highly competitive market.



     Employment or continued employment with the Company is contingent upon Employee’s execution of
this Agreement. In consideration for being offered employment or continued employment with the
Company, and/or for other consideration, such as stock options, salary increases or the like,
Employee accepts this Agreement.



     NOW, THEREFORE, in consideration of the mutual understandings, covenants and agreements set
forth herein and in the recitals, the receipt and sufficiency of which is hereby acknowledged, IT
IS AGREED AS FOLLOWS:



     1. Noncompetition. During the Period of Employment and for a period of eighteen (18)
months thereafter, Employee shall not, without the prior written consent of the Company, materially
engage, directly or indirectly, as an employee, officer, director, partner, consultant, owner
(other than a minority shareholder interest of not more than 3% of a company whose equity interests
are publicly traded on a nationally-recognized stock exchange or over-the-counter) or in any other
capacity, in any competition with the Company in those states of the United States and those other
countries in which the Company has sold its products or services or demonstrably and materially
solicited the sale of its products or services within two (2) years preceding any such competition
by Employee.



     2. Non-Solicitation. During the Period of Employment and for a period of eighteen
(18) months thereafter, Employee shall not, directly or indirectly, either alone or through any
third person or entity, solicit, sell to or perform any services for any person or entity who has
business relations with the Company and with whom Employee had interaction during his or her Period
of Employment or about whom Employee possessed Confidential Information (a “Restricted Company
Client”) if such activities by Employee would have the effect of causing the Restricted Company
Client to terminate or curtail its business relationship with the Company.



     3. Anti-Piracy. During the Period of Employment and for a period of eighteen (18)
months thereafter, Employee will not employ or solicit for employment, or help others to employ or
solicit for employment, any employee of the Company who is also a party to a Non-Competition
Agreement with the Company, without prior written consent of the Company. Employee acknowledges
and agrees that by virtue of this Agreement, he or she is likewise restricted from being solicited
for employment or employed by current or former employees of the Company or third parties with whom
they are associated, and hereby knowingly consents to that restriction.



     4. General Know-How. Nothing in this Agreement shall be deemed to prevent Employee’s
post-employment use of Employee’s general knowledge and skills acquired or enhanced during the
Period of Employment or to prohibit Employee from seeking other employment after the
Period of Employment, so long as such use or employment does not violate the provisions of this
Agreement.



     5. Delivery of Materials to Company. Immediately upon termination of Employee’s
employment, Employee shall deliver to the Company all written, recorded, and graphical material,
documents, hardware, software and items relating to the business of the Company (and copies
thereof) (other than owned by Employee) in Employee’s possession or under Employee’s control
regardless of whether such materials, documents and items contained Confidential Information.



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     6. Representations and Warranties. Employee represents and warrants (i) that Employee
has no obligations, legal or otherwise, inconsistent with the terms of this Agreement or with
Employee’s undertaking of a relationship with the Company, and (ii) that Employee has not entered
into and will not enter into any agreement (whether oral or written) in conflict with this
Agreement. Employee’s representations, warranties, and obligations contained in this Agreement
shall survive after the Period of Employment.



     7. Change in Employment Status. The covenants of this Agreement shall remain in force
in the event that Employee’s employment status changes within the Company or changes from
being employed by the Company to being employed by an existing or future subsidiary or
affiliate of the Company. In the event of a change to such subsidiary and affiliate then the
subsidiary or affiliate shall have the same rights and the same protections, without further
documentation or agreement, as enjoyed by the company under this Agreement.



     8. Injunctive Relief; Breach. Employee acknowledges that failure to carry out any
obligation under this Agreement, or a breach of any provision herein, will constitute immediate and
irreparable damage to the Company, which cannot be fully and adequately compensated in money
damages and which will warrant preliminary and other injunctive relief, an order for specific
performance, and other equitable relief. Such remedy, however, shall be cumulative and
nonexclusive and shall be in addition to any other remedy to which the parties may be entitled.



     9. Assignment. Neither this Agreement nor any rights or duties of Employee hereunder
shall be assignable by Employee, and any such purported assignment shall be void. The Company may,
however, assign all or any of its rights hereunder.



     10. Entire Agreement; Amendment. This Agreement constitutes the complete
understanding between Employee and the Company on this subject and may not be modified or
amended, except by writing and executed by a duly authorized representative of the Company and by
Employee. This Agreement is intended to be the final, complete, and exclusive statement of the
terms of the parties’ agreements regarding these subjects and supersedes all other prior and
contemporaneous agreements and statements on these subjects. This Agreement is effective for
Employee’s entire Period of Employment, even if such period commenced prior to the date of this
Agreement.



     11. Definitions. All capitalized terms not defined in the text of this Agreement,
have the following meanings:




     (a) “Confidential Information” means information, to the extent it is not a Trade
Secret, which is possessed by or developed for the Company and which relates to the
Company’s existing or potential business or technology, which information is generally not
known to the public and which information the Company seeks to protect from disclosure to
its existing or potential competitors or others, including, without limitation, business
plans, strategies, existing or proposed bids, costs, technical developments, existing or
proposed research projects, financial or business projections, investments, marketing plans,
negotiation strategies, training information and materials, information generated for client
engagements and information stored or developed for use in or with computers. Confidential
Information also includes information received by the Company from others which the Company
has an obligation to treat as confidential, including all information obtained in connection
with client engagements and partnering arrangements.




     (b) “Trade Secret” means all information possessed by or developed for the Company,
including, without limitation, a compilation, program, device, method, system, technique or
process, to which all of the following apply: (i) the information derives independent
economic value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic value from
its disclosure or use and (ii) the information is the subject of efforts to maintain secrecy
that are reasonable under the circumstances.



     12. Waiver of Breach. The waiver by either party of the breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent breach by either
party. Any waiver by either party must be in writing and signed by a representative who has the
authority to bind such party.



     13. Invalidity of any Covenant. The parties hereto acknowledge that this Agreement is
comprised of more than one covenant, and specifically acknowledge that Paragraphs 1, 2, 3, 4 and 5
are separate and distinct



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convenants. The covenants of this Agreement are severable, it being the intention of the
parties hereto that should any covenant hereof be invalid or unenforceable, such invalidity or
unenforceability of any covenants shall not effect the remaining covenants hereof, but the same
shall remain in full force and effect as if such invalid or unenforceable covenant or covenants
were omitted.



     14. Governing Law; Jurisdiction and Venue; Construction. This Agreement shall be
governed by the internal laws of the State of Wisconsin. The parties irrevocably consent to the
sole and exclusive jurisdiction and venue in the appropriate state or federal court in Wisconsin.
This Agreement shall be construed without regard to any rules of construction concerning the
draftsman hereof.



     15. Notices. Any notice, request, consent or approval required or permitted to be
given under this Agreement or pursuant to law shall be sufficient if it is in writing, and if and
when it is hand delivered, faxed, or sent by regular mail, with postage prepaid, to Employee’s
residence (as noted in the Company’s records), or to the Company’s principal office, as the case
may be.



     16. Employee Acknowledgment. Employee acknowledges that Employee has had the
opportunity to consult legal counsel in regard to this Agreement, that Employee has read and
understands this Agreement, and that Employee has entered into it freely and voluntarily based on
Employee’s own judgment and not on any representations or promises other than those contained in
this Agreement.



     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first
written above.



	 	 	 	 	 	 	 	 	 
	 	 	 	 	TomoTherapy Incorporated	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:	 	 	 	 
	 

Employee Signature

	 	 	 	Title:
	 	 

	 	 
	 

	 	 	 	 	 	 

	 	 
	 

Employee (Print Name)

	 	 	 	 	 	 	 	 







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