Exhibit 10.1
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and
Release (this “ Agreement ”) is made and entered
into as of March 21, 2007 (the “ Effective Date
”) by and between O. I. Corporation, an Oklahoma corporation
(the “ Company ”), and William W. Botts (“
Botts ”).
R E C I T A L S
WHEREAS, Mr. Botts is employed
by the Company as President and Chief Executive Officer and serves
as a member of the Board of Directors (the “ Board
”) of the Company;
WHEREAS, Mr. Botts was placed
on paid, administrative leave from his positions with the Company
on January 21, 2007;
WHEREAS, the Company and Botts have
entered into the following agreements in connection with
Botts’ employment: (1) Employment Agreement dated
May 1, 1996 (the “ Employment Agreement ”);
(2) Indemnification Agreement dated May 10, 2005 (the
“ Indemnification Agreement ”);
(3) Employee Patent and Proprietary Information Agreement (the
“ Proprietary Information Agreement ”) dated
June 13, 2006; and (4) the Option Grants set forth in
Section 2(c) of this Agreement;
WHEREAS, effective immediately,
Mr. Botts desires voluntarily to resign as President and Chief
Executive Officer, as a member of the Board and all other positions
he may have with the Company or any affiliated company, and the
Company desires to accept such resignations effective immediately;
and
WHEREAS, in connection with
Mr. Botts’ resignation, the parties desire to amend and
restate their rights and obligations with respect to each
other.
A G R E E M E N T
NOW, THEREFORE, in consideration of
the mutual promises made herein, the Company and Botts
(collectively referred to as the “ Parties ”)
hereby agree as follows:
1. Resignation . To be
effective immediately, Mr. Botts hereby resigns as President
and Chief Executive Officer, as a member of the Board, and from all
other positions he may hold with the Company or any affiliated
company, and the Company hereby agrees to execute such documents
and take such acts as the Company determines necessary to affect
his resignation from all such positions.
2. Compensation and Benefits
.
(a) Accrued
Compensation & Benefits. On March 23, 2007, the
Company will pay Botts any and all accrued unpaid wages through the
Effective Date, less lawful deductions and withholding and in
accordance with the Company’s normal payroll practices. Botts
agrees and acknowledges and agrees to verify on March 23, 2007
that such amount included all accrued vacation (which constitutes
of 8 weeks of vacation at Botts current salary), leaves, bonuses,
benefits, perquisites, and whatever else of any nature Botts
contends, or may contend, are due to Botts from the Company, except
for those benefits or compensation as expressly defined elsewhere
in this Agreement. Botts and the Company agree that Botts will not
receive any bonus for his service in 2006 or 2007.
(b) Reimbursement of Expenses
. The Company agrees to reimburse Botts for all reasonable expenses
incurred by Botts on behalf of the Company for which Botts provided
documentation acceptable to the Company within fifteen
(15) days following the Effective Date, detailing the amount
and purpose of each expense. Following this reimbursement, the
Company has no further obligation to reimburse Botts for any
expenses.
(c) Stock Options . Following
is a listing and description of the option grants Botts received
pursuant to the Company’s 1993 Incentive Compensation Plan
(as amended through the date hereof, the “ 1993 Plan
”), including a summary of the vesting status for each.
Notwithstanding anything to the contrary contained in the option
grants referenced below (including any 1993 Plan documents
distributed with such option grants), Botts and the Company agree
that, after the Effective Date, Botts will not vest in any
additional shares purchasable under these option grants despite any
additional service Botts might provide to the Company following the
Effective Date.
|
|
•
|
|
On January 25, 1999, Botts
received an option grant under the 1993 Plan to purchase 30,000
shares of Common Stock, with an exercise price of $5.625 per share
(“ Option Grant 1” ). As of the Effective Date,
Botts had exercised 15,000 shares of Common Stock under Option
Grant 1 and was vested in the remaining 15,000 shares of Common
Stock under Option Grant 1.
|
|
|
•
|
|
On February 8, 2000, Botts
received an option grant under the 1993 Plan to purchase 30,000
shares of Common Stock, with an exercise price of $3.875 per share
(“ Option Grant 2” and, together with Option
Grant 1, the “ Option Grants ”). As of the
Effective Date, Botts had exercised 6,000 shares of Common Stock
under Option Grant 2 and was vested in the remaining 24,000 shares
of Common Stock under Option Grant 2.
|
Pursuant to the terms of the 1993
Plan, Botts will have 90 days following the Effective Date to
exercise any vested options under the Option Grants. The Board has
approved the payment of the exercise price of the Option Grants by
having shares of the Company’s common stock held by
Mr. Botts using the cashless exercise method provided in
Section 5(c)(1) of the 1993 Plan. Mr. Botts will notify
the Company’s Chief Financial Officer to exercise the Option
Grants and, to the extent Mr. Botts elects to exercise the
Option Grants using the cashless exercise method the shares of
Common Stock used by Botts to pay the exercise price shall be based
on the closing sales price as reported on the Nasdaq Global Market
on the date of such exercise.
(d) Continuation of Health
Benefits. As partial consideration for signing and not revoking
this Agreement, if Botts elects to continue health coverage under
the Consolidated Omnibus Budget Reconciliation Act of 1985 or under
such other supplemental or substitute group health insurance
benefit continuation program as may be provided pursuant to
applicable state law (such programs collectively referred to herein
as “ COBRA ”), the Company will pay
Botts’ COBRA premiums in an amount sufficient to maintain the
level of health benefits in effect on his last day of employment
(hereinafter “ Benefit Continuation ”), until
the earlier of (i) October 31, 2007 or (ii) the date
that Botts is covered under another employer’s health benefit
program which provides substantially the same level of
2
benefits without exclusion for pre-existing
medical conditions. Such Benefit Continuation will be in lieu of
any other continued health care coverage to which Botts or
Botts’ dependents would otherwise be entitled at Botts’
own cost under Code Section 4980B by reason of Botts’
termination of employment.
3. Proprietary Information .
Botts agrees that the Proprietary Information Agreement survives
the termination of Botts’ employment and Botts shall comply
with the terms and conditions contained in the Proprietary
Information Agreement. Botts shall return all the Company property
(except as otherwise provided hereby) and Company proprietary or
confidential information in Botts’ possession and/or control
to the Company on or before the Effective Date. For a period of
five years following the date hereof , the Company will retain a
copy of any proprietary or confidential information Botts obtained
in his capacity as a director with a third-party escrow service and
will allow that information to be made available to Botts in the
event Botts requires access to such information for purposes
related to Botts service as a director of the Company. Botts shall
not retain any copies of such confidential and proprietary
information. A copy of the Proprietary Information Agreement is
attached hereto as Exhibit B .
4. Release of Claims
.
(a) Release by Botts. To the
full extent permitted by law, Botts (for himself and his spouse,
executors, heirs, beneficiaries, representatives, and anyone
claiming by or through Botts), upon signing this Agreement, do
immediately, completely, knowingly, and voluntarily, release and
forever discharge, covenant not to present or to sue, and waive any
right to recover from the Company, including its predecessors,
successors, affiliates, stockholders, officers, directors, agents,
insurers, representatives, attorneys, auditors, assigns, and
current employees and former employees, all individually and in
their official capacities, (collectively the “Released
Parties”) from any and all claims relating to or arising from
Botts’ employment and termination of employment with the
Company, Board service and any act that has occurred as of the date
of the execution of this Agreement, whether presently known or
unknown; and that this release shall be construed as broadly as
possible and shall include without limitation, the
following:
(i) any and all claims relating to
or arising from Botts’ employment relationship with the
Company and the termination of that relationship;
(ii) any and all claims for wrongful
discharge of employment; termination in violation of public policy;
discrimination; breach of contract, both express and implied;
breach of a covenant of good faith and fair dealing, both express
and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional
misrepresentation; negligent or intentional interference with
contract or prospective economic advantage; unfair business
practices; defamation; libel; slander; negligence; personal injury;
assault; battery; invasion of privacy; false imprisonment; and
conversion;
(iii) any and all claims for
violation of any federal, state or municipal statute, including,
but not limited to, the following:
|
|
•
|
|
The Age Discrimination in
Employment Act of 1967;
|
3
|
|
•
|
|
The Americans with Disabilities
Act of 1990;
|
|
|
•
|
|
Title VII of the Civil Rights Act
of 1964; the Civil Rights Act of 1991;
|
|
|
•
|
|
The Consolidated Omnibus Budget
Reconciliation Act of 1985; Employee Retirement Income Security Act
of 1974;
|
|
|
•
|
|
The Fair Labor Standards Act of
1938;
|
|
|
•
|
|
The Family and Medical Leave Act
of 1933;
|
|
|
•
|
|
The Older Workers Benefit
Protection Act; the Worker Adjustment and Retraining Notification
Act;
|
|
|
•
|
|
The Sarbanes-Oxley Act of
2002;
|
|
|
•
|
|
The Texas Commission on Human
Rights Act, Texas Labor Code §400.001. et seq. (specifically,
§21.001, et seq. prohibiting discrimination/exploitation based
upon age, race, sex, religion, national origin,
disability);
|
|
|
•
|
|
Texas Labor Code §451.001 et
seq. (prohibiting discrimination based on application for
workers’ compensation benefits);
|
|
|
•
|
|
The Texas Payday Act, Texas Labor
Code §61.001, et seq.;
|
|
|
•
|
|
The Texas Minimum Wage Act, Texas
Labor Code §62.002, et seq.;
|
|
|
•
|
|
The Texas Unemployment
Compensation Act, Texas Labor Code §201.001, et seq.;
and
|
|
|
•
|
|
Texas Genetic Information and
Testing Law;
|
(iv) any and all claims for
violation of the federal, or any state, constitution;
(v) any and all claims arising out
of any other laws and regulations relating to employment or
employment discrimination;
(vi) any and all claims for
attorneys’ fees and costs; and
(vii) any and unknown claims, in
compliance with any statute or ordinance that requires a specific
release of unknown claims or benefits, and expressly waive and
relinquish any and all claims, rights or benefits unknown to Botts
at the time of the execution of this Agreement.
(b) Release by Company. To
the full extent permitted by law, the Company, upon signing this
Agreement, does immediately, completely, knowingly, and
vol
