EMPLOYMENT AGREEMENT
THIS
EMPLOYMENT AGREEMENT (this “Agreement”) is entered into as of June 28, 2006 (the
“Effective Date”) between XXXXXXX X. XXXXXX (“Executive”), an individual
residing in the State of Florida, and FARO TECHNOLOGIES, INC. (the “Company”), a
Florida corporation having its principal place of business at 000 Xxxxxxxxxx
Xxxx, Xxxx Xxxx, XX 00000.
RECITALS
WHEREAS,
Executive is a co-founder of the Company and has served as a director and
officer of the Company in various capacities for 24 years since the Company’s
inception in 1982, during which time he assisted in building the Company from
a
start up to a public company with worldwide operations, and the Company has
benefited from his many years of service;
WHEREAS,
Executive currently serves as an Executive Vice President of the Company and
as
a member of the Company’s Board of Directors with a term expiring at the
Company’s 2008 annual shareholders meeting;
WHEREAS,
Executive has indicated his desire to retire from active management of the
Company, and the Company wishes to accommodate Executive’s interest in
retirement;
WHEREAS,
the
Company and Executive believe it appropriate that the terms and conditions
of
his transition into retirement and are entering into this Agreement for that
purpose; and
NOW
THEREFORE,
in
consideration of the covenants set forth herein, the parties agree as
follows:
OPERATIVE
TERMS
1. Transition
duties; Retirement
A. Subject
to the terms and conditions of this Agreement, from the Effective Date until
December 29, 2006 (the “Term”), Executive will continue to be employed as a
full-time employee of the Company holding the position of Executive Vice
President and shall continue to receive his current base salary of $245,000
per
year (“Base Salary”),
plus all
the employee benefits provided to other Company executives, excluding
participation in the Company’s bonus program, payable in accordance with the
Company’s customary payroll practices for its executives; provided, however,
that Executive’s employment may be terminated before the end of the Term by
either party pursuant to Section 6 of this Agreement.
B. Unless
there is an earlier termination of employment in accordance with this Agreement,
Executive’s retirement shall be effective at the close of business on December
29, 2006. Unless the Executive is terminated by the Company prior to December
29, 2006 for any reason other than for “Cause” (as defined herein), the
Executive will resign from the Board of Directors on the later to occur of
(i)
the termination of his employment with the Company or (ii) the close of business
on December 29, 2006. Such resignation from the Board of Directors will be
effective at such time without any further action by the Executive.
C. In
his
capacity as an Executive Vice President, Executive shall report to the Company’s
Co-Chief Executive Officers (the “Co-CEOs”) and shall have such
responsibilities, duties, and authority assigned to him by the Co-CEOs, and
shall have no other responsibilities, duties, or authority, implied or
otherwise. Executive shall transition his investor relations responsibilities
as
directed and to the person or persons designated by the Board of Directors
or
the Co-CEOs.
D. Executive
has indicated his interest in consulting work following his retirement from
the
Company. As a courtesy, the Company will provide Executive with time to develop
his post-retirement consulting opportunities, and expressly acknowledges that
he
may devote business time to such pursuit, notwithstanding his present full-time
employment. Furthermore, as in the past, Executive is expressly authorized
to
engage in appropriate civic, charitable, religious and non-profit activities,
so
long as they do not interfere with or conflict with Company’s policies regarding
such matters, and with the understanding that such activities must not preclude
Executive from performing his transition duties under this
Agreement.
2. Reimbursement
of Expenses
During
the Term, the Company shall reimburse Executive for all reasonable expenses
incurred by him in the course of performing the duties assigned to him under
this Agreement that are consistent with Company’s policies in effect from time
to time with respect to travel, entertainment and other expenses, subject to
the
Company’s requirements with respect to reporting and documentation of such
expenses.
3. Stock
Options and Restricted Share Units (RSUs)
As
part
of Executive’s compensation, the Company may issue to Executive stock options
and/or RSUs, if any, in the sole and absolute discretion of the Company’s
Compensation Committee and independent of Company policy and past
practice.
4. Benefit
Programs
Executive
shall be entitled to participate in any benefit programs which the Company
provides for its executive employees in accordance with Company policies and
procedures. Such benefits may include health insurance, disability insurance,
life insurance, cafeteria plans, pension and profit sharing plans, and other
employee benefit plans as may be developed and designed from time to
time.
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5. Cooperation
A. The
Company is currently defending or involved in, and may in the future become
involved or be required to defend additional, various claims, including civil
actions, disputes with third parties, civil and criminal investigations,
inquiries by federal and state law enforcement officials, inquiries by
regulatory or self-regulatory organizations, about which Executive may have
personal knowledge (collectively, “Claims”). It is possible that such Claims
will concern matters relating to Executive’s employment, or his areas of
responsibility at the Company. It is also possible that he may be named as
a
defendant in connection with Claims.
B. Executive
has cooperated with the Company in the past regarding the Claims. Executive,
during and after the Term, shall:
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i.
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continue
to cooperate fully with the Company and with federal and state law
enforcement or regulatory agencies and self-regulatory organizations
with
respect to the Claims, whether or not the Employee is named as a
party
therein; provided,
however,
that the Company shall (to the extent it can reasonably do so) (A)
provide
Executive reasonable notice relating to meetings and document requests
and
(B) schedule such meetings and document productions at a place which
is
mutually convenient.
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provide
the Company with copies of all documents in his possession or control
relating to the Claims (to the extent Executive has not already provided
such documents to the Company).
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C. Consistent
with the Company’s Restated Certificate of Incorporation and By-laws (each as
amended), the Company shall promptly reimburse the Employee for all reasonable
legal fees (including such legal fees for counsel retained by Executive to
assist and advise regarding his cooperative efforts if cooperation is requested
by the Company in connection with Claims) and reasonable expenses incidental
to
such cooperation. The Company and Executive agree that he will not be
compensated for the time that he spends at meetings, in travel to meetings,
or
in connection with the production of documents, or in connection with any other
activities or tasks comprising a form of cooperation; provided, however, that
in
the event Executive is subpoenaed to give testimony by the Company, either
at
trial or deposition, he shall be paid such witness fees and travel expenses
by
the Company as are permitted under applicable law; provided, however, that
the
Company shall be relieved of its payment obligations under Section 5 of this
Agreement in the event of a material breach by Executive of his Section 5
cooperation obligations, where the Company gives Executive written notice of
the
breach and the circumstances of the breach, and Executive does not cure the
breach within twenty (20) days following the notice.
D. As
part
of his duty of cooperation, Executive agrees to give the Company prompt notice
if he is served with process as a defendant in a civil action relating in any
way to his Company employment. Similarly, the Company agrees to give Executive
prompt notice if it is served with process as a defendant in a civil action
where Executive is also named as a defendant.
E. Executive
also agrees to cooperate with the Company in the event his assistance would
be
helpful with regard to litigation or disputes where the Company is asserting
a
claim itself against third parties. He will provide similar assistance with
regard to such proceedings as he will offer in regard to Claims.
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F. Generally,
Executive and the Company agree to cooperate with each other, in good faith,
with regard to legal proceedings involving Executive brought by or against
private parties.
6. Terminations
before the end of the term
A. Executive
may resign his employment or his Board membership at any time prior to the
end
of the Term, for any reason at all, by giving written notice of resignation.
B. Company
may terminate Executive’s employment before the end of the Term for any reason
at all, by giving written notice of termination.
C. If
the
Company chooses to exercise its right to terminate Executive’s employment prior
to the end of the Term, the Company shall continue to pay Executive his Base
Salary through the end of the Term, and the Company will similarly pay all
expenses associated with COBRA continuation of Executive’s group insurance
through the end of the Term, and he shall otherwise receive benefits under
Sections 1, 2, and 4 of this Agreement as if his employment had continued
through the end of the Term (collectively, “Post-Termination Compensation”),
unless his employment is terminated by the Company for Cause, in which case
the
Company shall have no obligation to pay Executive for any Post-Termination
Compensation. The Company shall have “Cause” to terminate Executive’s
employment, before the end of the Term, only upon the occurrence of the
following events: (i) the conviction of Executive of a felony, or a misdemeanor
involving moral turpitude; (ii) gross and willful misconduct by Executive that
is demonstrably and materially injurious to the Company, whether monetarily
or
otherwise; or (iii) a material breach of this Agreement by Executive, which
is
not cured within twenty (20) days of written notice to Executive of the fact
and
circumstances of breach.
D. If
Executive chooses to exercise his right to resign his Company employment prior
to the end of the Term, the Company shall have no obligation to continue to
pay
him any Post-Termination Compensation, unless he resigns for Good Reason. If
Executive resigns his employment before the end of the Term for Good Reason,
he
will receive Post-Termination Compensation, just as if his employment was
terminated by the Company without Cause. Executive shall have “Good Reason” to
terminate his employment only in the event of a material breach of this
Agreement by the Company, which is not cured within twenty (20) days of written
notice to the Company of the fact and circumstances of breach.
E. In
the
event of Executive’s death before the end of the Term, any right of Executive to
compensation under Sections 1, 2, or 4 of this Agreement shall terminate as
of
the date of death, except to the extent it was already earned before his death.
Similarly, in the event of any other termination of employment before the end
of
the Term, regardless of the reason for termination, Executive shall be paid
all
Base Salary earned prior to the date of termination, and all other benefits
due
him under Sections 1, 2, and 4 of this Agreement which were earned prior to
the
date of termination.
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7. Return
of Company Property
All
records, designs, patents, business plans, financial statements, manuals,
memoranda, lists and other property delivered to or compiled by Executive by
or
on behalf of the Company or their representatives, vendors or customers which
pertain to the business of the Company shall be and remain the property of
the
Company and be subject at all times to its discretion and control. Likewise,
all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of the
Company which is collected by Executive shall be delivered promptly to the
Company without request by it upon termination of Executive’s
employment.
8. Inventions
All
right, title, and interest, of every kind whatsoever, in the United States
and
throughout the world, in any copyrights, trademarks, and any ideas, designs,
discoveries, inventions, and improvements with economic value, whether or not
patentable or capable of copyright or trademark registration, created,
developed, or conceived by Executive while associated with or employed or
engaged by the Company that relate in any way to the business of the Company
shall be the sole property of the Company. All works of authorship, such as
writings, computer programs, and the like, whether or not copyrightable, that
are authored or created by Executive while associated with or employed or
engaged by the Company that relate in any way to the business of the Company
or
software generally shall be the sole property of the Company. Executive shall
(i) execute all documents reasonably necessary as requested by the Company
to
create, enforce, or evidence the Company's right in the foregoing property,
(ii)
execute any other proper instruments or documents necessary or desirable in
applying for and obtaining patents on such inventions and discoveries in the
United States and foreign countries and registration of copyrights on such
works
of authorship in Canada and foreign countries, including renewal papers when
appropriate; and (iii) cooperate in the prosecution or defense of any claims,
lawsuits, or other proceedings involving such property. Executive hereby waives
his right to enforce any moral or author’s right which Executive may have in
such works of authorship.
9. Indemnification
A. The
Company’s Amended and Restated Articles of Incorporation and Bylaws (each as
amended to date) require that the Company indemnify Executive, to the fullest
extent permitted or required by the Florida Business Corporation Act (the
“FBCA”), against any and all liabilities, and advance any and all reasonable
expenses, incurred thereby in any Proceeding (as defined in Section 607.0850
of
the FBCA) to which Executive is a party or in which Executive is deposed or
called to testify as a witness because he is or was a director or executive
officer of the Company. The Company’s Board of Directors previously adopted
resolutions whereby the Company agreed to advance certain reasonable expenses
incurred by Executive (each, an Advance”), including such expenses with respect
to the purported securities class action complaint filed in United States
District Court for the Middle District of Florida against the Company and
certain other defendants (including Executive) (the “Lawsuit”) (including
additional lawsuits filed with respect to the matters alleged by the Complaint
and any consolidated class action complaint with respect to the Lawsuit or
such
lawsuits), in each instance upon receipt of an undertaking by Executive to
repay
such amount if he is ultimately found not to be entitled to indemnification
by
the Company pursuant to Section 607.0850 of the FBCA.
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B. Consistent
with its obligations described above under the Company’s Amended and Restated
Articles of Incorporation and Bylaws (each as amended to date), the Company
shall indemnify Executive and make Advances to Executive as set forth above.
Executive hereby undertakes to repay to the Company all such Advances if
Executive is ultimately found not to be entitled to indemnification by the
Company pursuant to Section 607.0850 of the FBCA in connection with any of
the
matters described above.
10. Arbitration
Any
controversy or claim arising out of or relating to this Agreement or to the
breach thereof or Executive’s employment with the Company shall be settled
exclusively by binding arbitration conducted in Orlando, Florida in accordance
with the Employment Rules of the American Arbitration Association then in
effect, by a single independent arbitrator selected mutually by the Company
and
Executive. If the parties cannot agree on an arbitrator, within 30 days of
commencement of an arbitration proceeding hereunder, either party may request
that the American Arbitration Association select a candidate in accordance
with
the rules. The decision of the arbitrator shall be final and binding. Judgment
upon the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. The Company agrees to pay all expenses of the AAA and
all
fees, costs and expenses of the arbitrator and of the arbitration. The parties
further agree that any arbitration shall be conducted in a confidential manner,
and the arbitrator is hereby authorized to adopt any rules and procedures
reasonably appropriate to ensure the confidentiality of the arbitration. In
any
such arbitration, the arbitrator shall have the authority to award Reasonable
Attorney’s Fees and Attorney Costs to the prevailing party, pursuant to this
Agreement. “Reasonable Attorney’s Fees and Attorney Costs” include, but are not
limited to, the following: all reasonable attorney’s fees, all reasonable
attorney costs, all reasonable witness fees and other related expenses,
including reasonable paralegal fees, travel and lodging expenses and costs,
through trial and appeal, and/or through the finalization of the arbitration
and
the entering of the arbitrators award, including but not limited to all
litigation in any court pursuant to this Agreement. Reimbursement is due within
30 days of written notice after prevailing.Litigation or Arbitration
Expenses
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11. CONFIDENTIALITY
COMMITMENTS
A. Executive
shall hold in strict confidence and not divulge to others, destroy, nor make
use
thereof (either for the benefit of himself or for the benefit of any person
or
entity), except for the purposes of the Company, or to enforce his rights under
this Agreement, both during and after Executive’s employment by the Company, any
and all Proprietary Information or documents containing Proprietary Information
that Executive has obtained or will obtain in the course of employment by the
Company. All Proprietary Information is the exclusive property of the Company.
All files, letters, memos, reports, sketches, drawings, notebooks or other
written material containing such information, that are now or in the future
comes into Executive’s custody or possession, shall be used by Executive only in
the performance of his Company duties, or in connection with his obligations
under Section 5 of this Agreement. “Proprietary Information” means the following
information that is not generally known about the Company: (a) information
identifying or tending to identify any of the existing or prospective
acquisition candidates, clients, customers, suppliers, employees, and
independent contractors of the Company; (b) information regarding any
intellectual property of the Company, including all patents, trademarks, trade
names, service marks, and copyrighted materials, and all ideas, designs,
methods, scripts, concepts, inventions, research and development, and design
projects, and computer programs, software, and source codes, whether or not
protected under any law; and (c) information pertaining to the plans, methods,
services, processes, prospects, potential acquisitions of other businesses
or
companies. product costs, price lists, production methods, engineering standards
and specifications, marketing and development plans, price and cost data, price
and fee amounts, pricing and billing policies, quoting procedures, marketing
techniques and methods of obtaining business, forecasts and forecast assumptions
and volumes, and future plans and potential strategies, contracts and their
contents, customer or client services, data provided by customers or clients
and
the type, quantity and specifications of products and services purchased by
customers of the Company, and financial information
B. Executive
agrees, prior to the end of the Term, to make a reasonable effort to identify
all Company documents or records in his possession which contain Proprietary
Information. All such documents in hard copy form shall be returned to the
Company prior to the end of the Term. All such documents in computerized form
may be deleted by Executive or otherwise destroyed, or returned to the Company.
The Company acknowledges that Executive has voluminous documents or records
in
his possession which refer to the Company in some way, or which were prepared
by
Company employees, and do not contain Proprietary Information. It is agreed
that
Executive may retain such documents in his possession. In addition, he may
retain any documents produced for him or his counsel pursuant to agreements
where the Company is a party to the agreement, even though the documents may
contain confidential or Proprietary Information. To the extent any prior
confidentiality agreements between Executive and the Company might have required
the return of documents at the time of termination of his employment, that
confidentiality agreement is superseded by this Agreement; however, with this
exception, all such confidentiality agreements shall remain in full force and
effect.
C. To
the
extent permitted pursuant to Section 12 of this Agreement, Executive may engage
in consulting work following the end of the Term, or otherwise seek employment,
and in such circumstances, requests for references may be directed to the
Company’s Human Resources Department. In that event, the Company agrees to
provide only the following information to any legal or natural person seeking
a
reference on Executive: Executive’s final position with the Company and his
dates of employment.
D. It
is
possible that the Company may issue press releases or make public filings which
refer to the Executive. During the Term, the Company agrees to provide the
Executive with a copy of any such press release or public filing with reasonable
advance notice prior to issuance of any such press release or public
filing.
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12. Non-Competition
Agreement
A. Executive
recognizes that the Company’s willingness to enter into this Agreement is based
in material part on Executive’s agreement to the provisions of this Section 12
and that Executive’s breach of the provisions of this Section 12 could
materially damage the Company. Subject to the further provisions of this
Agreement and in consideration of the Company’s agreement to provide Executive
access to Confidential Information as defined below, Executive will not, during
the term of his employment with the Company, and for a period of three (3)
years
(unless a lesser period is specified hereafter) immediately following the
termination or expiration of Executive’s employment by the Company, directly or
indirectly, for himself or on behalf of or in conjunction with any other person,
company, partnership, corporation or business of whatever nature:
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i.
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Engage
or assist in any way, as an employee, agent, representative, officer,
member, director, shareholder, owner, partner, joint venturer, or
in any
capacity, whether as an employee, independent contractor, consultant
or
advisor, or as a sales representative, in (A) the design, development,
manufacturing, marketing, or support of computerized measurement
systems
(including, without limitation, articulated arm measuring devices,
laser
trackers, laser scanners, and CAD-based measurement and statistical
process control software), (B) in the computer-aided manufacturing
business, or (C) in any business in direct competition with the Company
or
any majority-owned subsidiary or affiliate of the Company (collectively,
the “Companies”);
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ii.
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for
a period of two (2) years call upon any person who is, at that time,
an
employee of any of the Companies for the purpose or with the intent
of
enticing such employee away from or out of the employ of any of the
Companies;
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iii.
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call
upon any person or entity which is, at that time, or which has been,
within one year prior to that time, a customer of any of the Companies
for
the purpose of soliciting or selling products or services in direct
competition with any of the
Companies;
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iv.
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call
upon any prospective acquisition candidate, on Executive’s own behalf or
on behalf of any competitor, which candidate was, to Executive’s
knowledge, within the preceding one year, either called upon by any
of the
Companies or for which any of the Companies made an acquisition analysis,
for the purpose of acquiring such entity;
or
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v.
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disclose
customers, whether in existence or proposed, of any of the Companies
to
any person, firm, partnership, corporation or business for any reason
or
purpose whatsoever except to the extent that any of the Companies
has in
the past disclosed such information to the public for valid business
reasons.
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8
Notwithstanding
the above, the foregoing covenant shall not be deemed to prohibit Executive
from
acquiring as an investment not more than 1% of the capital stock of a competing
business, whose stock is traded on a national securities exchange, the Nasdaq
Stock Market or similar market.
B. Because
of the difficulty of measuring economic losses to the Company as a result of
a
breach of the foregoing covenant, and because of the immediate and irreparable
damage that could be caused to the Company for which it would have no other
adequate remedy, Executive agrees that, in the event of breach by him, the
Company shall be entitled to specific performance, including immediate issuance
of a temporary restraining order and/or preliminary or permanent injunctive
relief enforcing this Agreement, and to judgment for damages caused by his
breach, and to any other remedies provided by applicable law. In the event
any
of the terms or conditions of this Agreement are found unreasonable by a court
of competent jurisdiction, Executive agrees to accept as binding in lieu
thereof, any such lesser restrictions which said court may deem
reasonable.
C. It
is
agreed by the parties that the foregoing covenants in this Section 12 impose
a
reasonable restraint on Executive in light of the activities and business of
the
Companies on the date of the execution of this Agreement and the current plans
of the Companies; but it is also the intent of the Company and Executive that
such covenants be construed and enforced in accordance with the changing
activities, business and locations of the Companies throughout the term of
this
Agreement.
D. The
Company and the Companies have international operations and conduct business
throughout the world. In his employment with the Company, Executive has
performed services for the Company throughout the United States and in various
foreign jurisdictions. The provisions of this Section 12 is intended to apply
to
the fullest extent possible in all of the United States and in every foreign
jurisdiction in which the Company conducts business.
E. The
covenants in this Section 12 are severable and separate, and the
unenforceability of any specific covenant shall not affect the provisions of
any
other covenant. Moreover, in the event any court of competent jurisdiction
shall
determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions
be
enforced to the fullest extent which the court deems reasonable, and the
Agreement shall thereby be reformed.
F. The
Company and Executive hereby agree that this covenant is a material and
substantial part of this Agreement.
G. The
parties agree that the covenants in this Section 12 shall apply in the event
the
Term expires.
13. Miscellaneous
A. Entire
Agreement.
This
Agreement embodies the entire Agreement and understanding between the Company
and Executive relating to the subject matter hereof, other than the Employment,
Assignment of Inventions, and Confidentiality Agreement previously executed
by
Executive and the Company. To
the
extent such Employment, Assignment of Inventions, and Confidentiality Agreement
contradicts the terms of this Agreement, such agreement is superseded by this
Agreement; however, with this exception, such Employment, Assignment of
Inventions, and Confidentiality Agreement shall remain in full force and
effect.
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B. Survival.
The
parties intend that a number of provisions in this Agreement, as is evident
from
their terms, will remain in force after the termination of Executive’s
employment with the Company or the expiration of the Term.
C. Legal
Matters.
The
laws of the State of Florida and the federal laws of the United States of
America, excluding the laws of those jurisdictions pertaining to resolution
of
conflicts with laws of other jurisdictions, govern the validity, enforcement,
construction, and interpretation of this Agreement. In the event that there
is
any litigation under this Agreement, Executive and the Company (a) consent
to
the personal jurisdiction of the state and federal courts having jurisdiction
in
Orange County, Florida, (b) stipulate that the proper, convenient, and exclusive
venue for any legal proceeding arising out of this Agreement is Orange County,
Florida, for a state court proceeding, or the Middle District of Florida,
Orlando Division, for a federal court proceeding, and (c) waive any defense,
whether asserted by motion or pleading, that Orange County, Florida, or the
Middle District of Florida, Orlando Division, is an improper or inconvenient
venue.
D. Severability.
If any
of the provisions of this Agreement are held invalid for any reason, the
remainder will not be affected and will remain in full force and effect in
accordance with its terms.
E. Notice.
Any
notice, request, or instruction to be given hereunder shall be in writing and
shall be deemed given when personally delivered or sent by telecopy transmission
or three (3) days after being sent by United States mail, postage prepaid to
the
parties at their respective address set forth below.
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(i)
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To the Company: | |
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FARO
TECHNOLOGIES, INC.
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Attention:
Chief Financial Officer
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000
Xxxxxxxxxx Xxxx
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Xxxx
Xxxx, XX 00000
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(ii)
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To Executive: | |
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To
Executive’s address contained in the Company’s
records.
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F. Amendment
and Waiver. No
waiver
of any provision of this Agreement will be valid unless in writing and signed
by
the person against whom it is sought to be enforced. The failure by either
party
to insist upon strict performance of any provision will not be construed as
a
waiver or relinquishment of the right to insist upon strict performance of
the
same provision at any other time, or any other provision of this
Agreement.
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G. Successors
and Assigns. This
Agreement shall be binding upon and inure to the benefit of the heirs and
representatives of Executive, but neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise subject to hypothecation
by Executive (except by will or by operation of the laws of intestate
succession) or by the Company, except in connection with a sale of the Company’s
business, whether by merger, purchase or other combination where the Company,
or
its successors, does not survive such combination (“Sale
of Business”).
In
case of such assignment by the Company and of assumption and agreement by such
purchaser, as used in this Agreement, “Company”
shall
thereafter mean that successor entity bound by the assignment and assumption,
or
which otherwise becomes bound to all the terms and provisions of this Agreement
by operation of law (the “Successor”).
In
the event of a Sale of Business, all of the Company’s rights, title and
interests in this Agreement as of the date of such sale shall be assigned to
the
Successor. Accordingly, this Agreement shall inure to the benefit of, and be
enforceable by, any such Successor. In the event of a Sale of Business,
Executive shall be entitled to enforce any of his rights hereunder against
any
Successor. Except as provided in this Section, this Agreement shall not be
assignable by the Company.
H. Further
Assurances. Each
party hereto shall cooperate and shall take such further action and shall
execute and deliver such further documents as may be reasonably necessary in
order to carry out the provisions and purposes of this Agreement.
I. No
Strict Construction.
The
parties have jointly participated in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or interpretation
arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or
disfavoring any party by virtue of the authorship of any of the provisions of
this Agreement.
J. Counterparts.
This
Agreement may be executed in multiple counterparts, each of which is an original
but which shall together constitute one and the same instrument.
K. Costs.
In any
mediation, arbitration, or legal proceeding between Executive and the Company
arising out of this Agreement, the losing party shall reimburse the prevailing
party, on demand, for all costs incurred by the prevailing party in enforcing,
defending, or prosecuting this Agreement.
L. Assignment;
Successors.
Executive shall not assign its, his, or her rights or delegate any of his
obligations under this Agreement, and any attempted assignment or delegation
by
Executive will be invalid and ineffective against the Company. The
Company may assign its rights under this Agreement without Executive’s consent
to any assignee or successor in interest of its business, whether pursuant
to a
sale, merger, or sale or exchange of assets or outstanding stock of the Company.
This Agreement is binding on, and inures to the benefit of, the Company’s
authorized assignees and successors. Upon assignment of the Company’s rights
under this Agreement, (a) every reference in this Agreement to the “Company”
will include the assignee, and (b) if the assignee expressly assumes in writing
or by operation of law all the liabilities of the assignor generally or under
this Agreement specifically, the assignor will be released from all its
obligations to Executive under this Agreement.
11
M. Notices.
Every
notice, demand, consent, or other communication required or permitted under
this
Agreement will be valid only if it is in writing (whether or not this Agreement
expressly states that it must be in writing) and delivered personally or by
telecopy, commercial courier, or first-class, postage-prepaid, United States
mail (whether or not certified or registered, and regardless of whether a return
receipt is requested or received by the sender), and addressed to the addresses
for the parties listed below. A validly given notice, demand, consent, or other
communication will be effective on the earlier of its receipt, if delivered
personally or by telecopy or commercial courier, or the third day after it
is
postmarked by the United States Postal Service, if delivered by first-class,
postage-prepaid, United States mail.
N. EXECUTIVE
ACKNOWLEDGES THAT HE HAS CAREFULLY READ THIS AGREEMENT, WAS AFFORDED SUFFICIENT
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL OF HIS CHOICE, AND TO ASK QUESTIONS
AND RECEIVE SATISFACTORY ANSWERS REGARDING THIS AGREEMENT, UNDERSTANDS HIS
RIGHTS AND OBLIGATIONS UNDER IT, AND SIGNED IT OF ITS, HIS, OR HER OWN FREE
WILL
AND VOLITION.
12
IN
WITNESS WHEREOF
the
parties have executed this Employment Agreement as of the date set forth
above.
|
FARO
TECHNOLOGIES, INC.
|
|
|
By:
/s/ Xxx X. Xxxxxxxx
Name:
Xxx X. Xxxxxxxx
Title:
President & Co-CEO
|
|
|
/s/ Xxxxxxx X. Xxxxxx
XXXXXXX
X. XXXXXX
|
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