Exhibit 10.12
January 10, 2022
David Benhaim
Re: Transition Agreement
Dear David:
This letter confirms the details relating to your voluntary transition from your employment with MarkForged, Inc. (the “Company”). The Company and its Board of Directors (the “Board”) sincerely appreciates your significant contributions to the Company and wishes to make this transition as smooth as possible. To that end, the agreement below (the “Agreement”) proposes an arrangement whereby you would continue your employment relationship with the Company as Senior Advisor, Technology through July 8, 2022 (the “Anticipated Separation Date”) and continue to receive your regular base salary and benefits (subject to eligibility requirements) and continue to vest in your outstanding, unvested equity awards through such date, all subject to the Conditions set forth in Section 1 of the Agreement.
The actual last day of your employment, whether it is the Anticipated Separation Date or an earlier date, is referred to herein as the “Separation Date.” The time period between the date of this letter and the Separation Date is referred to herein as the “Transition Period.”
Regardless of whether you enter into the Agreement below, the following bulleted terms and obligations apply with respect to the ending of your employment:
after the Company’s timely receipt of appropriate documentation pursuant to the Company’s business expense reimbursement policy.
Agreement
In addition to the above-described terms, you agree to advise the Company during the Transition Period and receive the associated compensation, benefits and vesting as described below if you enter into and comply with the Agreement and satisfy the Conditions.
The remainder of this letter sets forth the terms of the Agreement. With those understandings, you and the Company agree as follows:
To receive the benefits set forth in this Agreement, you must (i) enter into and comply with this Agreement; (ii) not either (A) be terminated by the Company for Cause (as defined in the Employment Agreement), or (B) resign your advisory role prior to the Anticipated Separation Date; and (iii) provide services and work cooperatively with the Company’s leadership team on a reasonable as requested basis during the Transition Period (the “Conditions”) .
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In consideration for, among other terms, the opportunity to continue your at-will employment during the Transition Period and to receive the associated compensation, benefits and vesting set forth herein, to which you acknowledge you would otherwise not be entitled, you voluntarily release and forever discharge the Company, its affiliated and related entities, its and their respective predecessors, successors and assigns, its and their respective employee benefit plans and fiduciaries of such plans, and the current and former officers, directors, board observers, shareholders, employees, attorneys, accountants and agents of each of the foregoing in their official and personal capacities (collectively referred to as the “Releasees”) generally from all claims, demands, debts, damages and liabilities of every name and nature, known or unknown (“Claims”) that, as of the date when you sign this Agreement, you have, ever had, now claim to have or ever claimed to have had against any or all of the Releasees. This release includes, without limitation, all Claims:
provided, however, that this release shall not affect any rights you may have under the Company’s Section 401(k) plan, under this Agreement or to indemnification pursuant to the Company’s governance documents, any indemnification agreement between you and the Company (the “Indemnification Agreement”) or any directors’ and officers’ insurance liability policy, nor release any Claims that cannot be released as a matter of law.
You agree not to accept damages of any nature, other equitable or legal remedies for your own benefit or attorney’s fees or costs from any of the Releasees with respect to any Claim released by this Agreement. As a material inducement to the Company to enter into this Agreement, you represent that you have not assigned any Claim to any third party.
In consideration for your release of claims and your willingness to serve as a Senior Advisor and assist the Company through this transition, the Company hereby releases and forever discharges you and your legal representatives, from all claims, liabilities, obligations, and/or causes of action of every kind, nature, and character, known or unknown, suspected and unsuspected,
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disclosed and undisclosed that the Company may now have, or has ever had, against you, up to and including the execution date of this Agreement, provided that nothing in this release limits, releases or waives: (i) any of the Company’s rights under this Agreement or any of the Preserved Agreements (including for breach), (ii) any rights that cannot be waived under applicable law, or (iii) any act(s) constituting willful and malicious behavior, fraud, misappropriation, embezzlement or that otherwise constitute a crime.
You acknowledge that you remain subject to your obligations under the Confidentiality Agreement and the Non-Competition and Non-Solicitation Agreement. You agree that after the Separation Date, you shall not represent that you are employed by or in any other service relationship with the Company, including without limitation on social media profiles and pages, such as LinkedIn.
The Confidentiality Agreement and the Non-Competition and Non-Solicitation Agreement, together with your obligations under the Company’s Insider Trading Policy and as set forth in Sections 4, 5, 6 and 8 of this Agreement, are referred to as the “Continuing Obligations.” Effective upon execution of this Agreement, the Company acknowledges that you are no longer (i) an “officer” under Section 16a-1(f) of the Securities Exchange Act of 1934, as amended of MarkForged Holding Corporation (“MHC”) nor (ii) an “Affiliate” (as defined in Rule 405 under the Securities Act of 1933, as amended) of MHC.
You acknowledge and agree that you are required to return all Confidential Information (as defined in the Confidentiality Agreement) to the Company upon the earlier of the request of the Company or the Separation Date. For the avoidance of doubt, this Section 5 is in addition to, and not in lieu of, your obligations to the Company pursuant to the Confidentiality Agreement. By signing below, you acknowledge and agree that you will return to the Company on the earlier of the Separation Date or a request by the Company, without altering, copying, deleting or purging any files or documents that may contain Company information, all “Company Property,” which shall include, without limitation, all Company property and equipment in your possession, custody or control, including, without limitation, all files, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, blueprints, models, prototypes, or other written, photographic or other tangible material containing the Company’s confidential information, and other materials of any nature pertaining to the Company’s confidential information and to your work, including, without limitation, any Company laptop or other computer equipment, keys and access cards and credit cards. After returning all such Company Property to the Company, you must delete and finally purge any duplicates of files or documents that may contain Company information from any non-Company computer or other device that remains your property after the Separation Date. In the event that you discover that you continue to retain any such property, you must return it to the Company immediately.
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Subject to Section 7, you agree not to make any disparaging statements (whether written, oral, through social or electronic media or otherwise) concerning the Company or any of its affiliates; its or their products or services; or any of its or their current or former officers, directors, shareholders, employees or agents. For its part, the Company agrees that its current Chief Executive Officer shall not make any disparaging statements (whether written, oral, through social or electronic media or otherwise) concerning you, provided that nothing herein shall apply to truthful testimony in litigation or in connection with an internal or external investigation nor shall it limit the Chief Executive’s Officer’s ability to communicate in good faith about the business of the Company.
Nothing contained in this Agreement limits your ability to communicate or complain to any federal, state or local governmental agency or commission (a “Government Agency”) nor does anything contained in this Agreement apply to truthful testimony in litigation. If you file any charge or complaint with any Government Agency and if the Government Agency pursues any claim on your behalf, or if any other third party pursues any claim on your behalf, you waive any right to monetary or other individualized relief (either individually or as part of any collective or class action); provided that nothing in this Agreement limits any right you may have to receive a whistleblower award or bounty for information provided to the Securities and Exchange Commission.
Consistent with the terms of your Employment Agreement, you agree to cooperate with the Company in (i) connection with the transition of your duties, (ii) the defense or prosecution of any claims or actions now in existence or which may be brought in the future against or on behalf of the Company which relate to events or occurrences that transpired while you were employed by the Company, provided that the Board will make reasonable good faith efforts to limit your future involvement in litigation matters to the extent it is able to do so consistent with its fiduciary duties to the Company; (iii) the investigation, whether internal or external, of any matters about which the Company believes you may have knowledge or information; or (iv) any other matters that the Board reasonably determines you have knowledge or information about based on your employment with the Company.
All payments made by the Company to you under this Agreement shall be net of any tax or other amounts required to be withheld by the Company under applicable law. Nothing in this Agreement shall be construed to require the Company to make any payments to compensate you for any adverse tax effect associated with any payments or benefits or for any deduction or withholding from any payment or benefit.
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[signature page follows]
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Please indicate your agreement to the terms of this Agreement by signing and returning it within the time period set forth above. We wish you the very best in the future.
Very truly yours,
MARKFORGED, INC.
/s/ Stephen Karp |
Stephen Karp |
General Counsel |
Markforged, Inc. |
This is a legal document. Your signature will commit you to its terms. By signing below, you acknowledge that you have carefully read and fully understand all of the provisions of this Agreement and that you are knowingly and voluntarily entering into this Agreement.
/s/ David Benhaim |
David Benhaim |
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