Exhibit 10.1
SEPARATION AND RELEASE
AGREEMENT
This Separation and Release
Agreement (“Agreement”) is entered into as of the 5th
day of August, 2008, by and between Lisa Meier
(“Meier”), an individual, and Flotek Industries, Inc.,
a Delaware corporation (the “Company”).
WHEREAS, Meier is the Chief
Financial Officer of the Company and its subsidiaries and is a
director of the subsidiaries; and
WHEREAS, Meier and the Company have
concluded that it is in their mutual best interests for Meier to
separate from the Company and resign as the Chief Financial Officer
of the Company and its subsidiaries and as a director of the
subsidiaries;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which is
hereby expressly acknowledged, the undersigned parties agree as
follows:
1. Resignation Date . Meier
hereby agrees to resign as the Chief Financial Officer of the
Company and its subsidiaries and as a director of the subsidiaries,
effective as of August 8, 2008 (the “Resignation
Date”).
2. Compensation through
Resignation Date, Severance Payments and Benefits .
(a) Within three (3) business
days after the Resignation Date, the Company will pay Meier a cash
payment equal to the sum of (i) her regular salary through the
Resignation Date and (ii) her accrued vacation benefits in the
amount of $6730.77.
(b) Meier will be permitted at the
cost of the Company to continue her individual coverage under the
health insurance policies of the Company as required under the
Consolidated Omnibus Budget Reconciliation Act of 1985
(“COBRA”) during any period subject to COBRA that she
is not employed.
(c) In exchange for the promises of
Meier contained in this Agreement and the release of claims as set
forth in Section 4 of this Agreement, the Company will pay
Meier the following separate amounts: (i) $153,846.20 which
shall be payable on or before March 15, 2009 as provided below
in this paragraph (c), which amount the parties agree shall be
considered a short-term deferral subject to Q-4(c) of Notice 2005-1
issued by the Internal Revenue Service pursuant to
Section 409A of the Internal Revenue Code of 1986 (the
“Code”) (the “Short-Term Deferral
Payment”), and (ii) $96,153.80, which amount shall be
payable subsequent to the date which is six months after the
Resignation Date as provided below in this paragraph (c), which
amount the parties agree shall be considered subject to
Section 409A(a)(2)(B)(i) of the Code (the “Six Month
Deferral Amount”). The Short-Term Deferral Payment shall be
payable in 16 equal bi-weekly payments in the amount of $9615.38,
commencing August 15, 2008, and ending on
1
March 13, 2009, with the last
such payment being in the full amount of the remaining balance of
the Short-Term Deferral Payment, and the Six Month Deferral Amount
shall be payable in 10 equal bi-weekly payments in the amount of
$9615.38 commencing March 27, 2009. All separate installments
payable pursuant to this Section shall be subject to withholding in
accordance with law and the Company’s payroll process and
policies.
3. Equity Awards; Other
Benefits .
(a) Meier and the Company agree that
the grant to Meier of the options to acquire shares of the stock of
the Company described on Schedule C are “vested” to the
extent provided on Schedule A and shall continue to be exercisable
by Meier subsequent to the Resignation Date pursuant to the terms
of the respective stock option agreements and the applicable stock
option plans of the Company pursuant to which such options were
granted, whether the 2005 Long-Term Incentive Plan, the 2007
Long-Term Incentive Plan, or otherwise. All other grants by the
Company to Meier of options or rights to acquire stock of the
Company shall terminate on the Resignation Date.
(b) 12,000 shares of the common
stock of the Company issued pursuant to the terms of the Restricted
Stock Agreement between the Company and Meier dated July 24,
2007 have become vested pursuant to the terms of the Restricted
Stock Agreement. Any other shares of the stock of the Company
issued to Meier pursuant to this Restricted Stock Agreement shall
be considered terminated and forfeited as of the Resignation Date.
2760 shares of the common stock of the Company issued pursuant to
the terms of the Restricted Stock Agreement between the Company and
Meier dated March 13, 2007 have become vested pursuant to the
terms of the Restricted Stock Agreement. Any other shares of the
stock of the Company issued to Meier pursuant to this Restricted
Stock Agreement shall be considered terminated and forfeited as of
the Resignation Date.
(c) Meier shall not be entitled to
coverage under any employee benefit plan of the Company subsequent
to the Resignation Date. The terms of this Agreement shall not
affect in any respect the rights of Meier with respect to
contributions or deferrals previously made by or with respect to
Meier pursuant to the Section 401(k) Plan of the Company,
which shall be governed by the terms of such plan. Meier shall be
entitled, to the extent the Section 401(k) Plan requires or
permits, to participate in any contributions made by the Company to
its Section 401(k) Plan with respect to its employees
generally for the year 2008.
4. Release by Meier . In
consideration for the Company’s promises in this Agreement,
and the release by the Company in Section 5 of this Agreement,
Meier 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,
2
officers, directors, stockholders, and
employees, 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 date of this Agreement, including but
not limited to, the following: (a) any statutory claims under
the Age Discrimination in Employment Act of 1967, the Americans
with Disabilities Act of 1990, the Family and Medic
