RETIREMENT AGREEMENT
Exhibit 10.1
This Retirement Agreement (“Agreement”) is entered into as of the Effective Date (as hereinafter defined) by and between Xxxxxx X. Xxxxxxx (“Xxxxxxx”), an individual, and Flotek Industries, Inc., a Delaware corporation (the “Company”).
WHEREAS, pursuant to the terms of that certain Employment Agreement entered into between the Company and Xxxxxxx on May 29, 2015 to be effective as of May 1, 2015 (the “Employment Agreement”), Xxxxxxx is serving as the Chief Financial Officer and Executive Vice President of the Company and in various positions with the Company’s subsidiaries; and
WHEREAS, Xxxxxxx is retiring from his position of Chief Financial Officer and Executive Vice President of the Company and his positions with the Company’s subsidiaries on February 13, 2017;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby expressly acknowledged, the undersigned parties agree as follows:
1. Date of Retirement.
(a) Effective as of February 13, 2017 (the “Retirement Date”), Xxxxxxx shall retire and be separated from his employment by the Company and from the position of Chief Financial Officer and Executive Vice President of the Company and all of the positions held by Xxxxxxx with respect to the Company’s subsidiaries. This Agreement shall become effective, however, on the “Effective Date,” as defined in subsection (b) below.
(b) Xxxxxxx understands that he has 21 days from February 14, 2017 (the “Submittal Date”), which is the date a draft of this Agreement was delivered to him, for the purpose of reviewing and considering this Agreement and making his decision whether to agree to and execute this document. Xxxxxxx understands that, while it is his right to decide to enter into and execute this Agreement before the end of this 21-day period that he is under no obligation to do so. If Xxxxxxx signs and returns this Agreement before the end of this 21-day period, it is because Xxxxxxx freely chose to do so after carefully considering its terms. Xxxxxxx is entitled to revoke his execution of this Agreement within 7 days of signing it, and this Agreement does not become effective or enforceable until the day after this 7-day revocation period has expired (the “Effective Date”). If the revocation period expires of a weekday or holiday, Xxxxxxx will have until the end of the next business day to revoke. Notwithstanding anything to the contrary set forth herein, neither Xxxxxxx nor the Company shall have any obligation hereunder until such 7-day revocation period has expired with such revocation right unexercised.
2. Severance Payment and Benefits.
(a) In exchange for the promises of Xxxxxxx contained in this Agreement and the release of claims as set forth in Section 4 of this Agreement, the Company will pay to Xxxxxxx a total of $459,375.04 as follows: (i) $100,000.00 on the Effective Date and (ii) $39,930.56 at the end of each of the next nine full calendar months following the Effective Date. Xxxxxxx agrees that the consideration the Company will provide includes amounts in addition to anything of value to which Xxxxxxx is already entitled.
(b) Xxxxxxx shall receive coverage at Company expense under the employee health insurance plan of the Company for the period following the Retirement Date until August 31, 2018.
(c) All payments to Xxxxxxx shall be subject to withholding of employment, FICA, and other taxes as required by law.
3. Other Benefits. Xxxxxxx shall not be entitled to coverage under any employee benefit plan of the Company subsequent to the Retirement Date except as set forth in Section 2(b). The terms of this Agreement shall not affect in any respect the rights of Xxxxxxx with respect to contributions previously made by or with respect to Xxxxxxx pursuant to the Section 401(k) Plan of the Company or any other vested rights under ERISA-covered employee benefit plans, which shall be governed by the terms of such plan(s), as applicable on the date Xxxxxxx signs this Agreement.
4. Release. In consideration for the Company’s promises in this Agreement, including the promise to pay compensation to Xxxxxxx pursuant to Section 2(a) hereof, Xxxxxxx, on behalf of himself and his heirs, executors, administrators, successors, assigns, and any other person claiming by, through, or under Xxxxxxx, voluntarily and knowingly waives, releases and discharges the Company, its subsidiaries and their direct and indirect affiliates, and their respective successors, assigns, divisions, representatives, agents, officers, directors, stockholders, and employees (the “Released Parties”), from any claims, demands and/or causes of action whatsoever, presently known or unknown, that are based upon facts occurring on or prior to the Effective Date, including but not limited to, the following: (a) any statutory claims under the Age Discrimination in Employment Act of 1967, the Older Workers Benefits Protection Act of 1990, the Americans with Disabilities Act of 1990, the Civil Rights Acts of 1964 and 1991, the National Labor Relations Act, or other U.S. (federal, state or local) or international laws (all as amended), (b) any tort or contract claims, (c) any claims for options or rights to acquire stock or the issuance of or right to retain restricted stock, (d) any claims or rights with respect to severance compensation or any other consideration under the Employment Agreement, and/or (e) any claims, matters or actions related to Xxxxxxx’x employment and/or affiliation with, or
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separation from, the Company, and any facts or circumstances relating to the negotiation of this Agreement. Such release does not, however, reach the Company’s obligations under this Agreement or any obligations under the Bylaws of the Company to Xxxxxxx with regard to indemnification and advancement of expenses to or for the benefit of Xxxxxxx. Nothing in this Agreement is intended to waive claims (i) for unemployment or workers’ compensation benefits, (ii) that may arise after Xxxxxxx signs this Agreement, or (iii) which cannot be released by private agreement. In addition, nothing in this Agreement including but not limited to the release of claims, proprietary information, confidentiality, cooperation, and non-disparagement provisions, prevent Xxxxxxx from filing a charge or complaint with or from participating in an investigation or proceeding conducted by the EEOC, NLRB, or any other any federal, state or local agency charged with the enforcement of any laws, or from exercising rights under Section 7 of the NLRA to engage in joint activity with other employees, although by signing this release Xxxxxxx is waiving rights to individual relief based on claims asserted in such a charge or complaint, or asserted by any third-party on Xxxxxxx’x behalf, except where such a waiver of individual relief is prohibited.
5. No Assignment of Claims. The Company and Xxxxxxx each represents and warrants to the other that it or he has not made any assignment and will make no assignment of any of the claims which are purported to be released and discharged by this Agreement.
6. Return of Company Property. On the Retirement Date, Xxxxxxx agrees to return to the Company all of the Company’s property in his possession, including but not limited to all of the tangible and intangible property belonging to the Company and relating to his employment with the Company. Xxxxxxx further represents and warrants that Xxxxxxx will not retain any copies, electronic or otherwise, of such property.
7. Additional Covenants.
(a) Xxxxxxx acknowledges (i) receipt of all compensation and benefits due through the Retirement Date as a result of services performed for the Company with the receipt of a final paycheck except as provided in this Agreement; (ii) Xxxxxxx has reported to the Company any and all work-related injuries incurred during employment; (iii) the Company properly provided any leave of absence because of Xxxxxxx’x or a family member’s health condition and Xxxxxxx has not been subjected to any improper treatment, conduct or actions due to a request for or taking such leave; (iv) Xxxxxxx has provided the Company with written notice of any and all concerns regarding suspected ethical and compliance issues or violations on the part of the Company, and (v) Xxxxxxx has not filed any complaints, claims, or actions against the Company or any Released Party.
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(b) Xxxxxxx agrees to cooperate fully with the Company in its prosecution, defense of or other participation in any administrative, judicial or other proceeding arising from any charge, complaint or other action which has been or may be filed by or against the Company that relate to matters within the knowledge or responsibility of Xxxxxxx.
(c) Xxxxxxx will not solicit, or assist or facilitate another in soliciting, for employment any natural person who as of the Effective Date is employed by the Company or any of its subsidiaries in any capacity, or personally solicit, or assist or facilitate another in soliciting, any such employees to terminate their employment with the Company or personally facilitate or assist in the hiring of any such employee by any other person for a period of one year following the Retirement Date.
8. Confidentiality.
(a) Xxxxxxx and the Company acknowledge that by virtue of his prior relationship with the Company, Xxxxxxx has previously had access to certain Confidential Information and been involved in the creation of certain Confidential Information. Xxxxxxx acknowledges and agrees that all such Confidential Information constitutes valuable, special and unique property belonging exclusively to the Company. Xxxxxxx agrees that he will not, for any reason or purpose whatsoever, disclose any Confidential Information to any party without express written authorization of the Company.
(b) “Confidential Information” means any confidential or proprietary information of the Company, including, without limitation, all documents or information, in whatever form or medium, concerning or evidencing operations, activities, strategies, long range plans, financial and tax information, personnel information, plans, opportunities, and customer information, but excluding any such information that is or becomes generally available to the public other than as a result of any breach of this Agreement or other unauthorized disclosure.
(c) This Agreement and all terms of this Agreement are hereby designated as confidential information. Neither Xxxxxxx nor the Company, nor their agents and representatives, are permitted to discuss the nature and terms of this agreement with any third party, except that both parties are permitted to discuss the nature and terms of this Agreement with appropriate tax, accounting or legal professionals, as necessary in any legal proceedings directly related to the provisions and terms of this Agreement, or as otherwise required by law or compelled by a court of competent jurisdiction after reasonable notice to the Company.
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9. Non-Disparagement. Xxxxxxx agrees not to disparage the Company, its directors, officers or employees, and the Company agrees that its senior managers will not disparage Xxxxxxx or his tenure or efforts at the Company.
10. Governing Law. The execution, validity, interpretation and performance of this Agreement shall be determined and governed exclusively by the laws of the State of Texas, without reference to the principles of conflict of laws.
11. Entire Agreement. This Agreement represents the complete agreement among Xxxxxxx and the Company concerning the subject matter hereof and supersedes all prior agreements and understandings, written or oral, between Xxxxxxx and any member of the Company concerning the subject matter of this Agreement except those provisions of the Employment Agreement which survive the “Termination Date” as set forth in the Employment Agreement. No attempted modification or waiver of any of the provisions of this Agreement shall be binding on any party hereto unless in writing and signed by Xxxxxxx and the Company. This Agreement is binding upon and inures to the benefit of the parties’ heirs, successors and permitted assigns.
12. Acknowledgements. This Agreement has been entered into voluntarily and not as a result of coercion, duress or undue influence. Xxxxxxx acknowledges that he has read and fully understands the terms of this Agreement. The company hereby advises Xxxxxxx that he should consult with an attorney before executing this Agreement. Xxxxxxx understands and agrees that any modification or alteration of any terms of this Agreement by Xxxxxxx voids this Agreement in its entirety. Xxxxxxx agrees with the Company that changes, whether material or immaterial, do not restart the running of the 21-day consideration period provided in Paragraph 1.
13. Dispute Resolution. Any and all disputes between the parties to this Agreement arising out of or in connection with the negotiation, execution, interpretation, performance or non-performance of this Agreement and the covenants and obligations contemplated herein, including but not limited to any claims against Xxxxxxx, the Company, its respective officers, directors, employees or agents, shall be solely and finally settled by arbitration before three arbitrators conducted in Houston, Texas pursuant to the Commercial Rules of the American Arbitration Association, as now in effect or hereafter amended. Judgment on the award of the arbitrator may be entered in any court having jurisdiction over the party against whom enforcement of the award is being sought, and the parties hereby irrevocably consent to the jurisdiction of any such court for the purpose of enforcing any such award. The parties agree and acknowledge that any arbitration proceedings between them, and the outcome of such proceedings, shall be kept strictly confidential. In the event of any such dispute concerning the subject matter of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees incurred for the arbitration.
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14. Notices. All notices, consents, waivers and other communications required or permitted by this Agreement shall be in writing and shall be deemed given to a party when (a) delivered to the appropriate address by hand or by nationally recognized overnight courier service (costs prepaid); (b) sent by facsimile or e-mail with confirmation of transmission by the transmitting equipment; or (c) received or rejected by the addressee, if sent by certified mail, return receipt requested, in each case to the following addresses, facsimile numbers or e-mail addresses and marked to the attention of the person (by name or title) designated below (or to such other address, facsimile number, e-mail address or person as a party may designate by notice to the other parties):
Company:
Flotek Industries, Inc.
Attention: President
00000 X. Xxx Xxxxxxx Xxxx. X., Xxxxx 000
Xxxxxxx, Xxxxx 00000
with a mandatory copy to:
Xxxxx X. Xxxxxxx
Xxxxxxx & Xxxxxxx LLP
0000 Xx. Xxxxx Xxxxx, Xxx. 000
Xxxxxxx, Xxxxx 00000
Fax no.: 000-000-0000
E-mail address: xxxxx@xxxxxxx-xxx.xxx
Xxxxxxx:
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15. Execution. This Agreement may be executed in counterparts, each of which will be deemed an original and shall be deemed duly executed upon the signing of the counterparts by the parties.
[Signature Page Follows]
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The parties to this Agreement have executed this Agreement on the dates set forth below.
| /s/ Xxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxxx | ||
| February 14, 2017 Date | ||
| FLOTEK INDUSTRIES, INC. | ||
| By: |
/s/ Xxxx Xxxxxxxx | |
| Name: Xxxx Xxxxxxxx | ||
| Title: President and CEO | ||
| February 14, 2017 Date | ||
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