TRANSITION AND SEPARATION AGREEMENT AND GENERAL RELEASE
THIS TRANSITION AND SEPARATION AGREEMENT AND GENERAL RELEASE (“Agreement”) is made and entered into between Xxxxx Xxxxx (“Executive”) and FARO Technologies, Inc. (“FARO” or the “Company”) (together, the “Parties”).
RECITALS
WHEREAS, Executive has been employed “at will” as FARO’s Chief Research & Development Officer since 2011; and
WHEREAS, it has been decided that Executive will be separated from his employment effective October 30, 2020 (the “Separation Date”); and
WHEREAS, in connection with Executive’s separation from the Company, in order to promote a smooth and amicable transition of duties, to confirm the terms of Executive’s separation from employment and to settle, release and discharge, with prejudice, any and all claims Executive has or may have against the Released Parties (defined in Paragraph 3(a) below), including but not limited to those arising or which may be arising out of Executive’s employment with and/or separation of employment from the Company, the Company has decided to offer Executive the severance pay and other consideration decided herein, conditioned upon Executive’s terms and conditions described in this Agreement.
NOW, THEREFORE, in consideration of the mutual commitments set forth in this Agreement, and intending to be legally and forever bound, the Parties therefore understand and agree as follows:
TERMS
1.Separation of Employment; Transition Period Preceding Separation; Resignation from Roles.
(a) Executive understands that his employment with the Company will end on the Separation Date (defined above) and that, except as expressly provided within this Agreement, all of the Company’s duties and obligations to Executive, whether by written agreement, plan, policy, practice or otherwise, are and will be completely extinguished as of his Separation Date. Notwithstanding the foregoing, Executive agrees that, effective as of August 28, 2020 and continuing through his Separation Date (the “Transition Period”), Executive will not be required to report to work (whether physically or virtually) but must remain reasonably available to respond to questions from the Company, during which period of time he will continue to receive his regular base pay and benefits from the Company. Executive agrees that, following his Separation Date, he has no further right to any salary or employee benefits provided by Company and/or any of the other Released Parties including, without limitation, under any health benefit and/or any other employee benefit plans. Executive also agrees that the Severance Payment provided under this Agreement does and will not extend his service beyond his Separation Date or increase any amounts due to him under any benefit plans of the Company and/or any other Released Parties.
(b) Executive affirms that, effective as of August 28, 2020 (the “Resignation Date”), he resigns from any and all positions he may have held with the Company as an officer or director, and agrees to provide full cooperation in taking all necessary steps in effectuating such resignation(s), including but not limited to, promptly executing and delivering official written resignations from such officer or director positions to the appropriate party upon the Company’s request. After the Resignation Date, Executive will no longer be authorized or permitted to incur any expenses, obligations or liabilities on behalf of the Company.
(c) Executive agrees that his duties and obligations remaining to the Company through the Transition Period will end as of his Separation Date, with the exception of those obligations stated herein,
otherwise required by law and/or set forth in the Patent and Confidentiality Agreement, and the Non-Competition and Non-Solicitation Addendum he signed as a condition to employment (the “Covenant Agreements”), as amended in Section 10 herein.
Acknowledgment of Receipt of All Previous Pay and Benefits; No Work-Related Injuries; No Harassment; and No Other Amounts Due.
(a)As of the date he signs this Agreement, Executive agrees he been paid in full, less all applicable federal, state and local employment and income taxes and other required or elected withholdings, for all wages he earned up to and including his Separation Date and for all other remuneration of any kind accrued, owed or otherwise due to him under any Company policy, plan, practice, program, arrangement and/or agreement, including but not limited to overtime pay, bonuses, commissions, incentive compensation, and paid time off.
(b)Executive confirms that he has not sustained any work-related injuries and, to the best of his knowledge, has not contracted any occupational diseases, except to the extent he has previously filed any claims alleging any work-related injury or illness, if any. Executive also agrees that he has previously been provided all family, medical and disability leave and/or other benefits to which he were ever entitled under federal, state or local family, medical and disability accommodations laws, including any right to reinstatement upon the conclusion of any period of leave, if any. Executive affirms that he is not aware of, has not engaged in, and has not witnessed any discrimination, harassment or retaliation of any nature towards any individual during his employment with the Company, has not witnessed any unlawful or fraudulent conduct of any nature by anyone at the Company, and has himself not engaged in or experienced any such wrongful, unlawful, discriminatory, retaliatory or fraudulent conduct.
(c)Executive understands he will receive payment for all reimbursable out-of-pocket eligible business expenses in accordance with Company policies or practices, provided that he submits the same by the close of business on his Separation Date. Reimbursement for all eligible business expenses shall be made in a timely manner following your submission of the same, in accordance with regular Company timelines for expense processing and all applicable laws.
(d)Executive understands that, except as provided for in this Agreement, the Company and all other Released Parties shall never be required to make any further payment or provide any further benefit, for any reason whatsoever, to him or any other person on his behalf regarding any claim, right or status Executive may have arising on or before the Effective Date of this Agreement (as defined in Paragraph 16(f), below).
2.Release of Claims and Covenant Not to Xxx.
(a) In exchange for the Company providing Executive with a Transition Period before his Separation Date and for providing the additional consideration as outlined in Section 6 of this Agreement, Executive, on his own behalf and on behalf of his heirs, executors, personal representatives, administrators, agents and assigns, forever waives, releases, gives up and discharges all waivable claims, real or perceived, whether accrued or unaccrued, liquidated or contingent, and now known or unknown, against the Company, its parent, affiliated and related companies, all of its and their employee benefit plans and trustees, fiduciaries, administrators, sponsors and parties-in-interest of those plans, all of its and their past and present employees, managers, directors, officers, administrators, shareholders, members, investors, agents, attorneys, insurers, re-insurers and contractors acting in any capacity whatsoever (whether individually or in an official capacity on behalf of the Company), and all of its and their respective predecessors, heirs, personal representatives, successors and assigns (collectively, the “Released Parties” as used throughout this Agreement), based on, related to, or arising from any event that has occurred before the date he signs this Agreement and based upon, related to or arising out of or in any way concerning his employment with the Company, the terms, conditions or privileges of his employment with the Company, his separation from employment with the
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Company, and any and all violations and/or alleged violations of federal, state or local human rights laws, fair employment practices and/or other laws by any of the Released Parties for any reason and under any legal theory including, but not limited to, those arising or which may be arising under, as applicable, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), the Employee Polygraph Protection Act, the Worker Adjustment and Retraining Notification Act (“WARN”), the Civil Rights Act of 1991, the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Equal Pay Act of 1963 (“EPA”), the Xxxxx Xxxxxxxxx Fair Pay Act of 2010 (“Fair Pay Act”), the Genetic Information Nondiscrimination Act of 2008 (“XXXX”), the Rehabilitation Act, the Employee Polygraph Protection Act, the Electronic Communication Privacy Act, the Computer Fraud & Abuse Act, the Health Insurance Portability & Accountability Act, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Occupational Safety and Health Act (“OSHA”), the Xxxxxxxx-Xxxxx Act of 2002, the Fair Credit Reporting Act (“FCRA”), the National Labor Relations Act (“NLRA”), the Labor Management Relations Act (“NLRA”), the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), the Civil Rights Act of 1991, 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988), the Florida Civil Rights Act of 1992, the Florida Whistleblower Protection Act, the Florida Equal Pay Act, the Florida Uniformed Service Members’ Protection Act, the Florida National Reserves Act, the Florida Domestic or Sexual Violence Leave Law, the Florida Minimum Wage Act, all Florida Wage and Hour Laws, the Florida Civil Rights Act, Florida Statutes Chapters 440 or 448, the Pennsylvania Wage Payment & Collection Law, the Pennsylvania Human Relations Act, the Pennsylvania Labor Relations Act, the Pennsylvania Equal Pay Law, the Pennsylvania Minimum Wage Act, the Pennsylvania Workers’ Compensation Act, and all other federal, state or local laws, statutes, regulations, rules, ordinances, or orders, as they may be amended. Executive also forever waives, releases, discharges and gives up all claims, real or perceived and now known or unknown, for breach of implied or express contract, breach of promise, breach of the covenant of good faith and fair dealing, misrepresentation, negligence, fraud, estoppel, defamation, libel, misrepresentation, intentional infliction of emotional distress, violation of public policy, invasion of privacy, wrongful, retaliatory or constructive discharge, assault, battery, false imprisonment, negligence, and all other claims or torts arising under any federal, state, or local law, regulation, ordinance or judicial decision, or under the United States, Pennsylvania and Florida Constitutions.
(b) In further exchange for the Company providing Executive with the payments described in this Agreement, Executive, on his own behalf and on behalf of his heirs, executors, personal representatives, administrators, agents and assigns, hereby waives and gives up any right to become, and promises not to agree to become, a member or representative of any class, collective action, or group of plaintiffs or other individuals in a lawsuit in which any claim is made against the Company that is related in any way to Executive’s employment with the Company, the benefits or attributes of that employment, or the termination of that employment. Executive affirms that, to the best of his knowledge, he has not become a member of and such putative or certified class, collective action, multi-party action, or group claim, and agrees that if he learns he has been made a member or representative of any such class, collective action, multi-party action, or group claim, whether putative or certified, he will take all appropriate steps to immediately leave or opt out of the class, collective action, multi-party action, or group.
(c) Executive understands that the laws and actions described above give him important remedies that relate to claims he has or may have arising out of or in connection with his employment with, or separation from employment from, the Company and agrees that he is freely and voluntarily giving up those remedies and claims. By signing this Agreement, Executive agrees that he is unconditionally waiving the right to proceed with discovery concerning any released claim in any future litigation with any Released Party, if any. Executive also agrees that he is fully releasing all claims for equitable, punitive or other relief, attorney’s fees, and other fees and costs incurred up to the date he signs this Agreement for any reason.
(d) Executive represents and warrants that: (i) he is the lawful owner of all claims released through this Agreement; (ii) he has the beneficial interest in the payments and other benefits he will receive
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under this Agreement; (iii) he has not assigned, and will not assign, any interest in any claim released through this Agreement; (iv) he has not filed, and is not and has not been subject to a voluntary or involuntary bankruptcy petition in the past three (3) years; (v) he is not a debtor in any pending bankruptcy case; (vi) no receiver, bankruptcy trustee or other third party may assert a right to any claim released through this Agreement or the payments or benefits to be tendered or provided under this Agreement. Executive agrees that the foregoing representations and warranties shall survive the execution, performance and consummation or termination of this Agreement. Executive also agrees that he will fully indemnify and hold the Released Parties harmless for any claims or damages, including attorneys’ fees, fines, costs, liquidated damages and punitive damages asserted or awarded against any of the Released Parties to the extent any of the foregoing representations and warranties is or becomes untrue and, should it be determined that any bankruptcy trustee or other third party has a right to the payment made to Executive under this Agreement, Executive immediately will return to Company an amount equivalent to the full after-tax value of the Severance Payment (as defined in Paragraph 6(a) below), less Five Hundred and 00/100 Dollars ($500.00).
(e) Executive warrants that he does not have any complaint pending before any federal, state or local court or arbitration panel concerning any Released Party. Executive further agrees not to file a lawsuit against any of the Released Parties in any federal, state or local court, or with any arbitration panel, concerning any claim, demand, issue or cause of action released through this Agreement, except to the extent specifically excluded below in Section 4 and its subparagraphs below. Should Executive file a lawsuit with any court or arbitration panel concerning any claim, demand, issue, or cause of action waived through this Agreement and not specifically excluded as described in Section 4 and its subparagraphs below, Executive agrees he will be responsible to pay the legal fees and costs that the Released Parties incur defending that lawsuit. Further, Executive agrees that nothing in this Agreement shall limit the right of any court or arbitration panel to determine, in its sole discretion, that the Released Parties are entitled to restitution, recoupment or set off of any monies paid to Executive should the release of any claims under this Agreement subsequently be found to be invalid.
3.Exclusions from Release of Claims and Covenant Not to Xxx.
(a)Executive understands and agrees that nothing in this Agreement limits his right to bring an action to enforce the terms of this Agreement.
(b)Executive understands and agrees that the Release contained in Section 3 and its subparagraphs above does not include a waiver of any claims which cannot be waived by law and does not include a waiver of any vested rights he may have in any existing Company 401(k) plan nor will it preclude him from purchasing continuation health benefits coverage for himself and/or his dependents under the Company’s continuation health benefits policies to the extent he and his dependents are otherwise eligible and for the period provided by law under COBRA. The Company will continue to subsidize the Employer paid portion of health benefit premiums under COBRA.
(c)Executive understands and agrees that nothing in this Agreement is intended to or shall prevent, impede or interfere with his non-waivable right to file a charge or complaint with the Equal Employment Opportunity Commission (“EEOC”), the Occupational Safety and Health Review Commission (“OSH”), the National Labor Relations Board (“NLRB”), the Securities and Exchange Commission (“SEC”), any other federal agency, labor board or commission, any state or local fair employment practices agency, or any other state or local agency, labor board or commission (collectively, the “Government Agencies”). Executive also understands that nothing in this Agreement in any way limits his ability to provide information and/or documents to or otherwise communicate with any Government Agencies, participate in any investigation of any Government Agencies, testify or otherwise participate in any proceeding that may be conducted by any Government Agencies concerning the Company’s past or future conduct, or engage in any activities now or in the future that are protected under the whistleblower statutes administered by OSH or any other Government Agencies without notice to the Company. This Agreement further does not limit Executive’s right to receive and fully retain a monetary reward from any government-administered
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whistleblower award or other incentive program for providing information directly to any Government Agencies (such as those administered by the OSH or the SEC); however, Executive understands and agrees he is waiving his right to recover any money or share in or participate in any monetary award in connection with or resulting from the prosecution of any charge, investigation or proceeding.
(d)Executive understands and agrees that nothing in this Agreement prohibits him from filing a claim to collect any unemployment compensation benefits available to him under applicable state Unemployment Insurance Compensation law or from collecting any award of benefits granted to him in accordance with that law.
(e)Executive understands and agrees that this Agreement does not limit any statutory rights he may have to bring an action to challenge the terms of this Agreement or contest the validity of the Release contained in this Agreement under the ADEA or the OWBPA.
4.Non-Admission of Liability.
Executive agrees that this Agreement shall not in any way be construed as an admission that any of the Released Parties owe Executive any money or have acted wrongfully, unlawfully, or unfairly in any way towards him. In fact, Executive understands that the Released Parties specifically deny that they have violated any federal, state or local law or ordinance or any right or obligation that they owe or might have owed to him at any time and maintain that they have at all times treated him in a fair, lawful, non-discriminatory and non-retaliatory manner.
5.Indemnification.
The Company shall to the fullest extent permitted by the Company’s articles of incorporation or bylaws indemnify Tohme against any and all liabilities and advance any and all reasonable expenses incurred thereby in any proceeding to which Tohme is a party or in which Tohme is deposed to called to testify as witness because of his performance of the Transition Duties, including without limitation in connection with the transition of his duties as an officer or director of any of the Company’s subsidiaries following the Resignation Date. The rights of indemnification granted hereunder shall not be deemed exclusive of any other rights to indemnification against liabilities or the advancement of expenses which Tohme may be entitled under any written agreement, the Company’s articles of incorporation, by laws, or otherwise.
6.Consideration to be Provided to Executive in Exchange for Release.
(a)In exchange for and in consideration of Executive’s promises set forth in this Agreement, and contingent upon the Agreement’s Effective Date, Executive’s continued compliance with the terms of this Agreement and all Covenant Agreements, as well as Executive’s execution and non-revocation of the Release attached hereto as Attachment A following his Separation Date, the Company agrees to pay Executive the total gross amount equal to twelve (12) months of Executive’s base salary in effect as of his Separation Date, less all applicable federal, state and local employment and income taxes and other required or elected withholdings (the “Severance Payment” for the “Severance Pay Period”). Executive’s Severance Payment shall be tendered in substantially equivalent installments, with the first installment being on the first practicable payroll date in January 2021 and the remaining installments continuing consecutively thereafter on the Company’s regularly-established pay dates until paid in full, with such payments all being made no later than March 15, 2021.
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(b)Executive agrees that the Transition Period and offer of the Severance Payment as outlined above, both singularly and together, constitutes good and adequate consideration in exchange for his promises herein and is, in addition to anything of value to which he is presently entitled by virtue of any understandings, agreements or contracts between himself and any of the Released Parties, his employment with the Company and his separation from that employment, and any of the Released Parties’ policies, practices, plans, agreements or prior understandings with him, including but not limited to compensation, vacation, bonus, severance, on-call, paid time off, commission, incentive compensation, equity incentives, stock options, offer letters, reassignment letters, employment agreements and any other fringe benefit plans, policies or practices.
7.No Reliance Upon Verbal Representations.
Executive agrees that no promises, statements or inducements have been made which caused him to sign this Agreement other than those expressly stated in writing within this Agreement. Executive also agrees that he has signed this Agreement with full knowledge of all rights that he may have, and he hereby assumes the risk of any facts presently unknown to him or any mistake in fact.
8.No Right or Guarantee to Re-Employment or Reinstatement.
Executive understands the termination of his employment is permanent and the Released Parties have not in any way guaranteed that he will be recalled, rehired, reinstated or in any way retained by the Company. Executive also understands that the Company and all of its related and affiliated companies have no obligation, contractual or otherwise, to consider any employment application he submits or to hire, rehire, retain, reinstate, reemploy or consider him for hire, rehire, retention, reinstatement or reemployment, now or ever in the future, either directly or indirectly, on a full-time, part-time, or temporary basis or as an independent contractor or consultant.
9. Reference-Related Communications.
(a) Executive agrees that he will direct all reference-related inquiries in the future exclusively to People Operations for confirmation only of his: (i) dates of employment and (ii) employment position. Executive also agrees that, except for the Company’s verbal confirmation of his dates of employment and position title as expressly set forth above, the Released Parties will have no obligation whatsoever to engage in any reference-related communications with his past, existing or prospective employers unless compelled by a court order or other legal process. Executive agrees that any statements made on social media by any current or former employees or other representatives of the Company are not official statements of reference by the Company and shall not be construed as such.
(b) Notwithstanding the foregoing, Executive understands and agrees that the Released Parties will remain free to internally communicate, to those with a business need to know, any and all information concerning his employment history with the Company.
10. Continuing Obligation Not to Use Any Confidential Information; and Return of All Confidential Information and Other Company Property.
(a) Executive acknowledges and agrees that all confidential, proprietary, trade secret and other business information belonging to the Company and/or the other Released Parties (as those terms are defined within the Covenant Agreements, and such definitions incorporated herein by reference), whether in tangible form or otherwise, including all documents and records, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data files or on any other type of media, and whether or not labeled or identified as confidential and/or proprietary, made or compiled by Executive or made available to his
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during his employment with the Company, is and remains the sole property of the Company and the Released Parties which Executive shall not at any time use for or disclose to any third party.
(b) Executive agrees that he has an obligation to and warrants that he will, no later than his Separation Date, undertake a diligent search for, and return, all originals and all copies of all documents and records made or compiled by him and/or made available to him or provided to him during the period of his employment with Company that contain confidential, proprietary, trade secret or other business information belonging to the Company and/or any of the Released Parties, whether printed, typed, handwritten, videotaped, transmitted or transcribed on data files or on any other type of media and whether or not labeled or identified as confidential, proprietary or trade secret. Executive further represents and warrants that he has not previously destroyed any such documents or information, will not destroy any such documents or information, and will not retain any copies of any such documents or information in any format for his own personal use or any other purposes for his own benefit or the benefit of any third party.
(c) In addition to returning all originals and copies (in whatever format) of all confidential, proprietary, trade secret or other business information belonging to the Company and/or any of the Released Parties, Executive agrees that he has an obligation to and warrants that, no later than his Separation Date, he will return all other Company property and materials including, but not limited to, credit cards, calling cards, keys, key fobs, identification badges, files, records, product samples, marketing materials, computer disks, laptop computers, tablets, printers, personal digital assistants, pagers, cellular telephones and all associated accessories for technology (e.g. power cords, mouse, etc.).
(d) To the extent that Executive transferred any confidential, proprietary, trade secret or other business information belonging to the Company and/or any of the Released Parties to any personal computer equipment or other personal electronic storage devices, or uploaded or downloaded such information to any cloud or other file sharing service to which Executive has or had access (including but not limited to Dropbox or Dropbox Free), Executive warrants that, no later than his Separation Date, he will return a true and correct electronic copy of the same to the Company and otherwise properly dispose of such materials and fully delete, appropriately remove and purge all electronic copies of the same from his personal computer equipment, other personal electronic devices, and any cloud or other file sharing service to which he had or has access in a manner reasonably performed to effectively prevent the disclosure to any third parties of any sensitive personal data and/or other confidential, proprietary, trade secret or other business information belonging to the Company and/or any of the Released Parties.
(e) Notwithstanding anything contained in this Agreement or the Covenant Agreements, Executive understands that nothing shall preclude him from disclosing or discussing any matter concerning the Company and/or the Released Parties with any Governmental Agencies, whether voluntarily or pursuant to a validly-served subpoena, as more specifically set forth in Paragraph 4(c) hereof, and that nothing in this Agreement precludes him from disclosing or discussing any factual information related to claims filed in civil courts or administrative agencies involving sexual assault or abuse, sexual harassment, and workplace harassment or discrimination based on sex or any other protected status, to the extent such disclosures are otherwise permitted by law and not subject to confidentiality restrictions. Furthermore, Executive understands that, notwithstanding the non-disclosure obligations contained in the Covenant Agreements, pursuant to the Defend Trade Secrets Act, 18 U.S.C. § 1833(b), nothing shall prohibit him from, and he will not be held criminally or civilly liable under any federal or state trade secret law for, the disclosure of a trade secret that is made: (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal and, in any such event, he may disclose the trade secret to his attorney and use the trade secret information in the court proceeding, provided he files any documents containing the trade secret under seal and does not disclose the trade secret, except pursuant to court order.
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11. Non-Disparagement.
Executive represents that he has not made, and agrees that he will not make, now or ever in the future, publicly or privately, verbally or in writing, any false or defamatory remarks about any of the Released Parties and/or the conduct, operations or financial condition or business practices, policies or procedures of the Released Parties to any third party, and that he has not and will not make or solicit any comments, statements, or the like to the media or to others that may be considered false or defamatory to or about any of the Released Parties.
12. Cooperation.
(a) Executive agrees to continue to cooperate in good faith and to timely respond to all requests from or inquiries by the Company or any of the other Released Parties following his Separation Date for assistance and information in connection with any matters or issues relating to or encompassed within his former duties and responsibilities performed for the Company and/or any of its related or affiliated companies, whether requests are made by telephone, email or in-person meeting. Executive also agrees to cooperate in good faith with the Company and all other Released Parties both during his Transition Period and following his Separation Date to assist with any transition matters and with any defense, prosecution or investigation concerning any actual or potential litigation, arbitration or administrative proceeding in which he may be involved or requested as a party, non-party or witness.(b) Executive understands and agrees that he will not be entitled to any additional compensation for time spent testifying as a witness in depositions, at trial, or during any other hearing, nor shall he be entitled to compensation for any other time spent responding to Company inquiries or requests for information, meeting with the Company to provide information or assist with the orderly transition of his former job duties, or meeting with the Company’s attorneys or other agents or employees for investigatory interviews, fact gathering, or otherwise to prepare for testimony during any proceeding, although should Executive be called to testify as a witness before any tribunal or in any formal legal proceeding, he will be reimbursed for the reasonable costs of all associated travel, parking, and tolls supported by appropriate documentation promptly supplied to the Company. In engaging in any assistance as described in this Paragraph 12(b), Executive shall not act in or hold himself out to be in any employee-employer relationship with the Company, and Executive agrees that such assistance shall not make him in any way eligible to participate in any of the Company’s employee benefit plans or programs.
13. Responsibility for Taxes.
Executive understands and agrees that he will be solely responsible for all of his own individual tax liabilities and tax reporting obligations and consequences arising under any federal, state, local or other withholding laws or regulations, including without limitation, income, employment, social security, or other taxes, which may result from the Severance Payment made to him under this Agreement and holds and shall hold the Released Parties harmless from and indemnifies them for any and all liabilities, costs, fines, interest or penalties resulting from such laws or regulations. Additionally, Executive agrees that the Released Parties shall not be required to pay any further sum to him, even if his tax or withholding consequences are not foreseeable at the time he signs this Agreement or are ultimately assessed in a manner which he does not anticipate at the time he signs this Agreement. Executive agrees that he has not been provided any advice by any of the Released Parties regarding the tax or withholding consequences of any consideration provided under this Agreement pursuant to any federal, state, local or other income or employment, social security, or other tax or withholding laws or regulations.
14. Compliance with Section 409A.
The Parties agree that, to the extent applicable, this Agreement shall be interpreted in accordance with, and each shall use their best efforts to achieve timely compliance with, Section 409A and the Department of Treasury Regulations and other interpretive guidance issued thereunder, including without
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limitation any such regulations or other guidance that may be issued after the Effective Date. Notwithstanding any provision of this Agreement to the contrary, in the event that the Company determines that the payments or other benefits provided hereunder may be subject to Section 409A, the Company reserves the right (without any obligation to do so or to indemnify Executive for failure to do so) to adopt such limited amendments to this Agreement and appropriate policies and procedures, including amendments and policies with retroactive effect, that the Company reasonably determines are necessary or appropriate to (a) exempt any payments made under this Agreement from Section 409A and/or preserve the intended tax treatment of the compensation and benefits provided with respect to this Agreement or (b) comply with the requirements of Section 409A.
15. Successors and Assigns.
Executive understands and agrees that he may not assign this Agreement, and that it shall be binding upon himself and his heirs, administrators, representatives, executors, and successors. Executive also understands and agrees that this Agreement shall be freely assignable by the Company without restriction and shall be deemed automatically assigned by the Company with his consent in the event of any sale, merger, share exchange, consolidation or other business reorganization. Executive acknowledges and agrees that this Agreement shall be binding upon, and shall inure to the benefit of, the Company’s successors and assigns.
16. Consultation with Counsel; Reasonable Time to Consider Agreement During Review Period; Knowing and Voluntary Acceptance of this Agreement; Right and Time to Revoke; and Effective Date.
(a) Executive acknowledges that, through this writing, the Company has recommended that he consult with an attorney of his own choosing before signing this Agreement, that the time afforded to him to consider the terms of this Agreement provides him with a full and fair opportunity to locate and thoroughly discuss all aspects of his rights and this Agreement with an attorney to the extent he elects to do so, and that he has, in fact, so consulted an attorney or knowingly waived his right to consult an attorney.
(b) Executive understands that he has twenty-one (21) calendar days from his receipt of this Agreement to consider its terms before signing it, except that if the last day of that period ends on a Saturday, Sunday or holiday observed by the Company, he shall have until the conclusion of the next immediate business day (the “Review Period”). Executive also understands that he may use as much of the Review Period as he wishes before signing this Agreement and that he may use all of the Review Period. Executive agrees that any material or immaterial changes to this Agreement made at any time will not restart the running of his Review Period and that his right to accept the terms and benefits of this Agreement will not extend beyond the expiration of the Review Period.
(c) Executive may accept this Agreement by sending a signed and dated original to the Company by hand-delivery, first class U.S. mail, certified mail, or overnight mail in a confidential envelope addressed to Xxxxxxx Xxxxxxx, Chief People Officer, FARO Technologies, Inc., 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000, postmarked no later than the close of business on the last day of the Review Period (but not before the Separation Date). Alternatively, due to the COVID-19 pandemic, Executive may return a legible scan of his signed Agreement by electronic mail to xxxxxxx.xxxxxxx@xxxx.xxx no later than the close of business on the last day of his Review Period, and then also mail his signed original Agreement to the Company by way of First Class U.S. Mail. To the extent that he signs this Agreement and returns it to the Company before the expiration of the Review Period, Executive warrants that he has voluntarily and knowingly waived the remainder of the Review Period and agrees that his decision to accept a shortened period of time was not induced by any of the Released Parties through fraud, misrepresentation, a threat to withdraw the offer or alter the offer prior to the expiration of the Review Period, or by providing different terms to workers who sign releases before the expiration of such periods.
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(d) Executive’s intentional action in signing, scanning and electronically transmitting this Agreement shall be evidence of consent to be legally bound by this Agreement and his agreement not to contest the admissibility or enforceability of any electronically transmitted, scanned copy of this Agreement or any counterpart thereof in any proceeding to enforce its terms. By signing this Agreement, Executive also warrants that he has carefully read and fully understands all of the terms and provisions of this Agreement, is physically and mentally competent to execute this Agreement, and is knowingly and voluntarily signing this Agreement of his own free will, act and deed. Executive further warrants that he has made such investigation of the facts pertaining to this Agreement and all matters contained herein as he deems necessary, desirable and appropriate, and agrees that his Release provided for herein shall remain in all respects effective and enforceable and not subject to termination or rescission following the Effective Date of this Agreement by reason of any later discovery of new, different or additional facts. Executive agrees that this Agreement may be executed in counterparts, each counterpart may be considered an original but both of them taken together shall constitute one single agreement.
(e) Executive understands that, following his execution of the Agreement, he will have an additional period of seven (7) calendar days to revoke his acceptance of this Agreement by delivering written notification of any such revocation to the Company no later than the close of business on the seventh (7th) calendar day after he signs it, except that if the last day of that period falls on a Saturday, Sunday or holiday observed by Company, he will have until the conclusion of the next immediate business day (the “Revocation Period”). Written notification of revocation may be delivered by electronic mail to Xxxxxxx Xxxxxxx, Chief People Officer, FARO Technologies, Inc., 000 Xxxxxxxxxx Xxxx, Xxxx Xxxx, XX 00000, at xxxxxxx.xxxxxxx@xxxx.xxx, provided that such written notification of revocation must be received by Company no later than the close of business on the last day of the Revocation Period to be effective. If Executive timely revokes this Agreement during the Revocation Period, the Agreement will not be effective and enforceable and he will not receive any of consideration described in this Agreement.
(f) The “Effective Date” used throughout this Agreement means the first (1st) calendar day after the Revocation Period expires, on which date the terms of this Agreement shall be fully effective and enforceable provided that Executive has not timely served a notice of revocation upon the Company prior to that date.
17. Governing Law and Venue.
This Agreement shall in all respects be interpreted, enforced and governed under the laws of the State of Florida, exclusive of any choice of law rules. Any disputes concerning this Agreement shall be brought in, and the Parties hereby consent to the personal jurisdiction of, the state and federal courts of the State of Florida (to the extent that subject matter jurisdiction exists only).
18. Severability.
The terms of this Agreement are severable and shall be deemed to consist of a series of separate covenants. Should any term of this Agreement be found, declared or determined to be void, illegal, invalid or unenforceable by a court of competent jurisdiction, that term shall be modified by the court to make it enforceable and/or severed from this Agreement but all other terms shall remain in full force and effect.
19. Proper Construction.
This Agreement shall not be construed against the Released Parties, and any interpretation of this Agreement by the Released Parties shall be binding on the Parties unless held by a court of competent jurisdiction to be arbitrary and capricious.
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20. Amendments.
This Agreement may be modified, altered or terminated only by an express written agreement between the Company and Executive, which agreement must be signed by Executive and a duly authorized representative of the Company, and expressly reference and attach a copy of this Agreement to be effective.
21. Entire Agreement.
This Agreement, and its Attachment A, comprises the entire agreement between the Parties and fully supersedes any and all prior agreements or understandings between the Parties pertaining to Executive’s employment, although both Parties agree that this Agreement does not and shall not be construed as altering, modifying, and supplanting or in any way changing or affecting the continued enforceability of the Covenant Agreements that Executive previously entered with the Company, the terms of which Executive acknowledges and agrees remain fully effective and enforceable except as expressly amended in Paragraph 10(e) hereof.
IN WITNESS WHEREOF, intending to be forever legally bound hereby, the Parties have executed this Agreement, being eleven (11) pages in total length.
Dated: September 9, 2020 /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
FARO TECHNOLOGIES, INC.
Dated: September 10, 2020 By: /s/ Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Chief People Officer
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RELEASE
(to be signed after the Separation Date)
General Release and Covenant Not to Xxx. In return for the consideration described in the Transition and Separation Agreement (the “Agreement”) to which this Release is attached, Executive, on his own behalf and on behalf of his heirs, executors, personal representatives, administrators, agents and assigns, forever waives, releases, gives up and discharges all waivable claims, real or perceived, whether accrued or unaccrued, liquidated or contingent, and now known or unknown, against the Company, its parent, affiliated and related companies, all of its and their employee benefit plans and trustees, fiduciaries, administrators, sponsors and parties-in-interest of those plans, all of its and their past and present employees, managers, directors, officers, administrators, shareholders, members, investors, agents, attorneys, insurers, re-insurers and contractors acting in any capacity whatsoever (whether individually or in an official capacity on behalf of the Company), and all of its and their respective predecessors, heirs, personal representatives, successors and assigns (collectively, the “Released Parties”), based on, related to, or arising from any event that has occurred before the date he signs this Release and based upon, related to or arising out of or in any way concerning his employment with the Company, the terms, conditions or privileges of his employment with the Company, his separation from employment with the Company, and any and all violations and/or alleged violations of federal, state or local human rights laws, fair employment practices and/or other laws by any of the Released Parties for any reason and under any legal theory including, but not limited to, those arising or which may be arising under, as applicable, Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Age Discrimination in Employment Act (“ADEA”), the Older Worker Benefit Protection Act (“OWBPA”), the Employee Retirement Income Security Act of 1974 (“ERISA”), the Employee Polygraph Protection Act, the Worker Adjustment and Retraining Notification Act (“WARN”), the Civil Rights Act of 1991, the Family and Medical Leave Act (“FMLA”), the Fair Labor Standards Act (“FLSA”), the Equal Pay Act of 1963 (“EPA”), the Xxxxx Xxxxxxxxx Fair Pay Act of 2010 (“Fair Pay Act”), the Genetic Information Nondiscrimination Act of 2008 (“XXXX”), the Rehabilitation Act, the Employee Polygraph Protection Act, the Electronic Communication Privacy Act, the Computer Fraud & Abuse Act, the Health Insurance Portability & Accountability Act, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Occupational Safety and Health Act (“OSHA”), the Xxxxxxxx-Xxxxx Act of 2002, the Fair Credit Reporting Act (“FCRA”), the National Labor Relations Act (“NLRA”), the Labor Management Relations Act (“NLRA”), the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), the Civil Rights Act of 1991, 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988), the Florida Civil Rights Act of 1992, the Florida Whistleblower Protection Act, the Florida Equal Pay Act, the Florida Uniformed Service Members’ Protection Act, the Florida National Reserves Act, the Florida Domestic or Sexual Violence Leave Law, the Florida Minimum Wage Act, all Florida Wage and Hour Laws, the Florida Civil Rights Act, Florida Statutes Chapters 440 or 448, the Pennsylvania Wage Payment & Collection Law, the Pennsylvania Human Relations Act, the Pennsylvania Labor Relations Act, the Pennsylvania Equal Pay Law, the Pennsylvania Minimum Wage Act, the Pennsylvania Workers’ Compensation Act, and all other federal, state or local laws, statutes, regulations, rules, ordinances, or orders, as they may be amended. Executive also forever waives, releases, discharges and gives up all claims, real or perceived and now known or unknown, for breach of implied or express contract, breach of promise, breach of the covenant of good faith and fair dealing, misrepresentation, negligence, fraud, estoppel, defamation, libel, misrepresentation, intentional infliction of emotional distress, violation of public policy, invasion of privacy, wrongful, retaliatory or constructive discharge, assault, battery, false imprisonment, negligence, and all other claims or torts arising under any federal, state, or local law, regulation, ordinance or judicial decision, or under the United States, Pennsylvania and Florida Constitutions, and hereby waives and gives up any right to become, and promises not to agree to become, a member or representative of any class, collective action, or group of plaintiffs or other individuals in a lawsuit in which any claim is made against the Company that is related in any way to Executive’s employment with the Company, the benefits or attributes of that employment, or the termination of that employment. Executive affirms that, to the best of his knowledge, he has not become a member of and such putative or certified class, collective action, multi-party action, or group claim, and agrees that if he learns he has been made a member or representative of any such class, collective action, multi-party action, or
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group claim, whether putative or certified, he will take all appropriate steps to immediately leave or opt out of the class, collective action, multi-party action, or group.
Exclusions. Executive understands and agrees that nothing in this Release (a) limits his right to bring an action to enforce the terms of this Release; (b) waives any claims which cannot be waived by law, including any vested rights he may have in any existing Company 401(k) plan nor will it preclude him from purchasing continuation health benefits coverage for himself and/or his dependents under the Company’s continuation health benefits policies to the extent he and his dependents are otherwise eligible and for the period provided by law under COBRA; (c) prevents him from filing a charge with, cooperating with, providing information to, or testifying before any Government Agencies (as defined within the Agreement), or retaining any monetary reward from any government-administered whistleblower award or other incentive program for providing information directly to any Government Agencies (such as those administered by the OSH or the SEC), although Executive agrees he is waiving his right to recover any money or share in or participate in any monetary award in connection with or resulting from the prosecution of any charge, investigation or proceeding; or (d) limits his statutory right to bring an action to contest the validity of the Release under the ADEA or the OWBPA.
Consideration and Revocation Period. Executive acknowledges that he has been given a period of at least twenty-one days to consider to accept the terms of this Release, and, once he signs this Release, he will have an additional seven (7) days in which to revoke his acceptance. To revoke acceptance of this Release, Executive must follow the procedures outlined in the Agreement. If Executive does not revoke his acceptance of this Release within the described seven (7) day period, this Release will become fully effective and non-revocable as of the eighth day following his signature.
EXECUTIVE ACKNOWLEDGES THAT HE VOLUNTARILY ENTERS INTO THIS RELEASE WITH A FULL AND COMPLETE UNDERSTANDING OF ITS TERMS AND LEGAL EFFECT. EXECUTIVE ALSO REPRESENTS THAT HE WAS ADVISED TO CONSULT WITH AN ATTORNEY ABOUT THE PROVISIONS OF THIS RELEASE BEFORE SIGNING BELOW AND HE SO CONSULTED AN ATTORNEY OR KNOWINGLY WAIVED HIS RIGHT TO DO SO.\
Dated: , 2020
Xxxxx Xxxxx
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