Exhibit 10.1
SEPARATION AGREEMENT AND RELEASE
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This Separation Agreement and Release (this "Agreement"), dated April 2,
2007, (the "Effective Date"), sets forth the mutual agreement of ENGlobal
Corporation, a Nevada corporation, for itself and its subsidiaries and
affiliates (collectively "ENGlobal"), and Michael L. Burrow ("Burrow"),
regarding Burrow's separation from employment with ENGlobal. Terms not otherwise
defined in this Agreement shall have the meanings ascribed to them in that
certain Key Executive Employment Agreement dated January 1, 2006 between
ENGlobal and Burrow (the "Employment Agreement").
RECITALS:
Burrow has been employed by and has served as an officer and a member of
the Board of Directors of ENGlobal since December 2001.
On the Effective Date, Burrow resigned as President and Chief Executive
Officer, as a member of ENGlobal' s Board of Directors, and as an employee of
ENGlobal.
The parties to this Agreement have decided to resolve any differences that
may exist in connection with Burrow's employment with ENGlobal, service on
ENGlobal's Board of Directors, and separation therefrom.
The parties desire to keep the terms of this Agreement confidential, to be
knows only by the parties to this Agreement and their attorneys, except as
otherwise required by law.
NOW, THEREFORE, in consideration of the mutual promises and agreements
herein contained, including the recitals set forth above, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Agreement
agree as follows:
1. Consideration from ENGlobal. If Burrow signs this Agreement, does not
revoke this Agreement, and complies fully with this Agreement, ENGlobal will
provide Burrow with the following valuable consideration, a portion of which is
expressly agreed to be in addition to anything to which Burrow is currently
entitled and not otherwise required by ENGlobal's policies, procedures, or
practices:
(a) Severance Payments.
(i) During the Initial Severance Benefit Period, ENGlobal will
pay Burrow severance benefits (subject to applicable tax and other withholdings)
in payroll period installments in accordance with ENGlobal's normal payroll
policies, in an amount equal to the monthly amount of Burrow's Annual Salary in
effect at the Effective Date. In addition, ENGlobal will (under the same cost
sharing arrangements as were in place prior to the Effective Date), continue to
include Burrow and his eligible dependents under the coverage of all group
health, medical and dental insurance policies, plans and programs maintained by
ENGlobal during the Initial Severance Benefit Period for ENGlobal's employees,
or management employees, generally.
(ii) ENGlobal hereby extends the Restricted Period, and ENGlobal
will pay Burrow severance benefits (subject to applicable tax and other
withholdings) during the Second Severance Benefit Period, in payroll period
installments in accordance with ENGlobal's normal payroll policies, in an amount
equal to the monthly amount of Burrow's Annual Salary in effect at the Effective
Date. In addition, ENGlobal will (under the same cost sharing arrangements as
were in place prior to the Effective Date), continue to include Burrow and his
eligible dependents under the coverage of all group health, medical and dental
insurance policies, plans and programs maintained by ENGlobal during the Second
Severance Benefit Period for ENGlobal's employees, or management employees,
generally.
(b) Benefits and Expenses.
(i) Burrow understands and agrees that balances or vested
balances Burrow has in any ENGlobal benefit plan will be available to Burrow
consistent with applicable law, regulations and the administrative provisions of
the various plan documents. Except as provided in Section 1(b)(ii), any options
to acquire shares of ENGlobal's common stock will expire or be exercisable in
accordance with the terms and provisions of the applicable agreement, plans and
plan documents. Burrow further understands that he will not receive any grants
of stock or options from ENGlobal in the future.
(ii) On the Effective Date, ENGlobal and Alliance 2000, Ltd. will
enter into the Second Amended and Restated Alliance Stock Option Agreement
attached as Exhibit A.
(iii) Burrow agrees that he will not conduct any market
transactions in ENGlobal stock (including purchasing or selling shares and
moving funds in or out of the ENGlobal 401(k) Plan) until ENGlobal files its
definitive proxy statement on Schedule 14A for year 2007. This restriction shall
not impede Burrow's ability to exercise his vested options to acquire shares of
ENGlobal common stock as permitted under the applicable option agreements.
(iv) ENGlobal agrees to reimburse Burrow for all reasonable
business expenses incurred through March 31, 2007.
2. Release.
(a) Burrow hereby knowingly and voluntarily waives, relieves,
releases, acquits and forever discharges ENGlobal, and its predecessors, parent
and affiliated companies, successors and assigns, officers, directors, agents,
employees, shareholders, attorneys, accountants, employee benefit plans and
trustees, and any and all other related individuals and entities (collectively,
the "Releasees"), from any and all claims, debts, liabilities, demands,
obligations, liens, promises, acts, agreements, costs, expenses (including, but
not limited to, attorneys' fees), damages, actions and causes of action, of any
nature whatsoever, including, without limitation, any statutory, civil or
administrative claim, or any claim, arising out of facts, whether known or
unknown, suspected or unsuspected, fixed or contingent, apparent or not,
including, but not limited to, any claims based on, arising out of, related to
or connected with Burrow's employment with, or termination of employment from,
ENGlobal, including but not limited to, any claims arising from federal, state
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or local laws which prohibit discrimination on the basis of race, national
origin, religion, age, sex, marital status, pregnancy, disability, perceived
disability, ancestry, sexual orientation, family or personal leave, or any other
form of discrimination, or from any common law claims of any kind, including,
but not limited to, contract, tort, or property rights, including, but not
limited to, breach of contract, breach of the implied covenant of good faith and
fair dealing, tortious interference with contract or current or prospective
economic advantage, fraud, deceit, breach of privacy, misrepresentation,
defamation, wrongful termination, tortious infliction of emotional distress,
loss of consortium and breach of fiduciary duty, violation of public policy and
any other common law claim of any kind whatsoever, and claims for severance pay,
sick leave, family leave, vacation, life insurance, bonuses, health insurance,
disability or medical insurance or any other fringe benefit or compensation, or
from any and all rights or claims arising under the Civil Rights Act of 1964, as
amended, 42 U.S.C. ss.ss. 2000e, et seq.; the Americans with Disabilities Act,
42 U.S.C. ss.ss. 12101, et seq.; the Age Discrimination in Employment Act, as
amended, 29 U.S.C. ss.ss. 621 et seq.; the Older Workers Benefit Protection Act;
the Sarbanes-Oxley Act of 2002, including the whistleblower provisions thereof;
the Texas Commission on Human Rights Act, Tex. Labor Code ss.ss. 21.001, et seq.
(prohibiting discrimination based upon age, race, sex, religion, national origin
or disability); the Family & Medical Leave Act; the Employee Retirement Income
Security Act of 1974; and the Worker Adjustment Retraining and Notification Act.
Claims which cannot be waived by law are excluded from the release provisions of
this Section 2; however, Burrow does waive his right to any monetary recovery
should any agency pursue claims against any Releasee on Burrow's behalf.
(b) Burrow understands and agrees, in compliance with any statute or
ordinance which requires a specific release of unknown claims or benefits, that
this Agreement includes a release of unknown claims, and Burrow hereby expressly
waives and relinquishes any and all claims, rights or benefits that Burrow may
have which are unknown to Burrow at the time of the execution of this Agreement.
Burrow understands and agrees that if, hereafter, Burrow discovers facts
different from or in addition to those which Burrow now knows or believes to be
true, that the waivers and releases of this Agreement shall be and remain
effective in all respects notwithstanding such different or additional facts or
the discovery of such fact.
(c) If Burrow is at least 40 years old, Burrow agrees and expressly
acknowledges that this Agreement includes a waiver and release of all claims
which Burrow has or may have under the Age Discrimination in Employment Act of
1967, as amended, 29 U.S.C. ss.ss. 621, et seq. ("ADEA"), the Older Workers
Benefit Protection Act, as amended, or any equivalent or comparable provision of
federal, state or local law, including, without limitation, the Texas Commission
on Human Rights Act. The following terms and conditions apply to and are part of
the waiver and release of ADEA claims under this Agreement by Burrow:
(i) The waiver and release of claims under ADEA contained in this
Agreement do not cover rights or claims that may arise after the date on which
Burrow signs this Agreement.
(ii) This Agreement involves consideration in addition to
anything of value to which Burrow is already entitled.
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(iii) Burrow is advised to consult an attorney before signing
this Agreement. If Burrow executes this Agreement prior to the expiration of the
period specified in Section 2(c)(iv), Burrow does so voluntarily and after
having had the opportunity to consult with an attorney.
(iv) Burrow is granted 21 days after Burrow is presented with
this Agreement to consider this Agreement.
(v) Burrow will have the right to revoke the waiver and release
of claims under the ADEA within seven days of signing this Agreement. This
Section 2(c) shall not become effective or enforceable until the revocation
period has expired, and Burrow understands and agrees that no consideration
shall be paid to Burrow pursuant to this Agreement until the revocation period
has expired without the waiver and release of claims under ADEA having been
revoked.
3. Non-Admission of Liability. The parties are entering into this Agreement
to, among other things, resolve any claims or differences that may exist between
them. By entering into this Agreement, neither Burrow nor ENGlobal admit any
liability or wrongdoing.
4. Company Documents, Information or Property. Burrow agrees that he will
promptly, and in any event no later than 5:00 p.m. on May 18th, 2007, return to
ENGlobal any and all electronic and/or paper documents relating to ENGlobal or
its business operations (and any and all copies thereof, whether in paper form
or electronic form), computer equipment, badges, credit cards and any other
ENGlobal property in Burrow's possession or control. Burrow agrees that he will
not take any such documents or property from the control or premises of ENGlobal
and that if, at any time after his separation from ENGlobal, Burrow should come
into possession of any such documents or property, Burrow will return such
documents or property to ENGlobal immediately.
5. Employment Agreement and Other Agreements. Burrow agrees that, except as
otherwise provided in this Agreement, the provisions of Sections 4, 5.5, 7 and 8
of the Employment Agreement and the stock option agreements that Burrow
previously entered into with ENGlobal remain in full force and effect.
6. Cooperation. Burrow agrees that he will give ENGlobal his full
cooperation in connection with any claims, lawsuits, or proceedings that relate
in any manner to Burrow's conduct or duties at ENGlobal or that are based on
facts about which Burrow obtained personal knowledge while employed at ENGlobal.
In return, ENGlobal agrees to reimburse Burrow for his direct and reasonable
out-of-pocket expenses (including reasonable attorneys' fees) incurred with
respect to rendering such cooperation. Burrow further agrees that he will not
voluntarily become a party to, or directly or indirectly aid or encourage any
other party in connection with, any lawsuit, claim, demand, or adversarial or
investigatory proceeding of any kind involving ENGlobal or any of the Releasees
that relates in any material way to his employment with ENGlobal or that is
based on facts about which Burrow obtained personal knowledge while employed
with ENGlobal. Burrow's compliance with a subpoena or other legally compulsive
process will not be a violation of this provision.
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7. Confidentiality. Burrow agrees that, except as may be required by law,
court order, regulation, or to enforce this Agreement, he will keep the terms,
amount and fact of this Agreement completely confidential. The confidentiality
of the terms and conditions contained in this Agreement are part of the
consideration inducing ENGlobal to enter into this Agreement. If Burrow or his
spouse, attorneys, or accountants breach the promises contained in this Section,
ENGlobal shall withhold payment of any sums due under this Agreement, Burrow
shall return all monies already paid pursuant to this Agreement, and Burrow
shall be liable for any additional damages, including any attorneys' fees and
costs incurred. Any such action permitted to ENGlobal by the foregoing, however,
will not affect or impair any of Burrow's obligations or promises made pursuant
to this Agreement including without limitation, the release of claims in Section
2. Notwithstanding the foregoing, Burrow may disclose pertinent information
concerning this Agreement to Burrow's attorneys, tax advisors and financial
planners, and Burrow's spouse and other close family members provided they have
previously been informed of and have agreed to be bound by this confidentiality
clause. Burrow understands and agrees that a breach of this confidentiality
clause by any of the above named individuals will be deemed a breach of this
Agreement by Burrow.
8. Non-Disparagement. Burrow agrees that, except as may be required by law
or court order, Burrow will not, directly or indirectly, make any statement,
oral or written, or perform any act or omission which is or could be detrimental
in any material respect to the reputation or goodwill of ENGlobal or any
Releasee. If Burrow breaches the promises contained in this Section, ENGlobal
shall withhold payment of any sums due under this Agreement, Burrow shall return
all monies already paid pursuant to this Agreement, and Burrow shall be liable
for any additional damages, including any attorneys' fees and costs incurred.
Any such action permitted to ENGlobal by the foregoing, however, will not affect
or impair any of Burrow's obligations or promises made pursuant to this
Agreement including without limitation, the release of claims in Section 2.
Further, ENGlobal agrees that except as may be required by law or court order,
ENGlobal will not, directly or indirectly, make any statement, oral or written,
or perform any act or omission which is or could be detrimental in any material
respect to the reputation or goodwill of Burrow.
9. No Re-Employment. As part of the consideration inducing ENGlobal to
enter into this Agreement, Burrow agrees never to reapply for employment with
ENGlobal, its parents and subsidiaries, and understands that if he does, such
application will be rejected pursuant to this Agreement.
10. Nature of Settlement. The parties agree to be responsible for their own
federal income tax obligations, if any. Burrow further agrees to indemnify
ENGlobal from and against any damages and penalties associated with any of
Burrow's income tax obligations arising from this settlement.
11. Dispute Resolution. With the exception of claims for injunctive relief,
each of the parties consents to attempt to resolve any dispute among them by
mediation. If the parties are unable to resolve their claims in mediation, then
the parties consent to submit any and all claims or controversies arising in
connection with this Agreement to binding arbitration and agree that such
arbitration shall be in accordance with the then current Commercial Arbitration
Procedures of the American Arbitration Association before an arbitrator who is
licensed to practice law.
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However, the arbitration need not be conducted under the auspices of the
American Arbitration Association. The cost of mediation will be shared equally
between the parties. The prevailing party in arbitration, if arbitration is
necessary, may be awarded attorneys' fees by the arbitrator; provided that no
person shall be considered to be a prevailing party if it recovers less in such
proceeding than the highest written offer of settlement from the party from
which it seeks to recover. Except as required by law, all mediation and
arbitration proceedings shall be kept strictly confidential by the parties.
12. Applicable Law and Venue. This Agreement shall be interpreted in all
respects by the laws of the State of Texas without giving effect to any choice
or conflict of law provision or rule (whether of the State of Texas or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Texas, and the venue for the resolution of any disputes
(location of any lawsuit) shall be solely in the state and federal courts of
Harris County, Texas.
13. Severability. If any provision of this Agreement is held by final
judgment to be invalid, illegal or unenforceable, such invalid, illegal or
unenforceable provision shall be severed from the remainder of this Agreement,
and the remainder of this Agreement shall be enforced. In addition, the invalid,
illegal or unenforceable provision shall be deemed to be automatically modified,
and, as so modified, to be included in this Agreement, such modification being
made to the minimum extent necessary to render the provision valid, legal and
enforceable. Notwithstanding the foregoing, however, if the severed or modified
provision concerns all or a portion of the essential consideration to be
delivered under this Agreement by one party to the other, the remaining
provisions of this Agreement shall also be modified to the extent necessary to
equitably adjust the parties' respective rights and obligations hereunder.
14. Construction. The parties have participated jointly in the negotiation
and drafting of this Agreement and each party has had the opportunity to review
this Agreement with its own attorney. Accordingly, if an ambiguity or question
of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties 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. Whenever used in this Agreement, the singular
number will include the plural, and the plural number will include the singular,
and pronouns in the masculine, feminine, or neuter gender will include each
other gender. Headings are used for convenience only, and are not to be given
substantive effect. All references to section numbers and exhibits in this
Agreement are references to sections and exhibits in this Agreement, unless
otherwise specifically indicated. All exhibits and schedules are incorporated in
this Agreement as if set forth herein in full. Recitals are part of this
Agreement and shall be considered in its interpretation.
15. Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which shall be deemed an original for all purposes.
16. No Other Consideration. Burrow affirms that the terms stated in this
Agreement constitute the only consideration for signing this Agreement, that no
other promises or agreements of any kind have been made by any person or entity
to cause him to execute this Agreement, and that he fully understands the
meaning and intent of this Agreement, including, but not limited to, its final
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and binding effect. Burrow agrees that, except as expressly set forth in this
Agreement, he is not entitled to receive from ENGlobal the payment or
distribution of any amounts of pay, benefits, cash, stock, stock options or
other type of property.
17. Entire Agreement. This Agreement contains the entire understanding
between the parties concerning the subject matter contained in this Agreement
and supersedes any prior employment or similar agreements between the parties,
with the exception of those provisions of Burrow's Employment Agreement set
forth in Section 5 that are intended to survive the termination of employment,
which continue to be binding in accordance with their terms.
18. Sufficient Consideration. Burrow acknowledges that the consideration
recited in this Agreement is adequate to make it final and binding, and is in
addition to payments or benefits to which Burrow would otherwise be entitled as
a former employee of ENGlobal.
19. Modification of Agreement. This Agreement may not be modified by any
subsequent agreement unless the modifying agreement is in writing and is signed
by all the parties.
20. Revocation Period. Burrow has been advised, both orally and by this
writing, of his right to consult with an attorney before entering this
Agreement. Burrow shall have a period of 21 days from the date of delivery of
this Agreement to consider the Agreement; Burrow understands and acknowledges
that any changes made to the Agreement, whether material or immaterial, will not
re-start this 21-day period. Burrow shall have seven days following his
execution of this Agreement during which he may revoke the Agreement by
providing ENGlobal written notice of his revocation. If this Agreement is not
revoked by Burrow during said seven-day period, it shall be deemed accepted. The
Agreement shall not be effective or enforceable until the revocation period has
expired.
BURROW HAS CAREFULLY READ THE FOREGOING AGREEMENT AND HE UNDERSTANDS THE
CONTENTS THEREOF AND HE EXECUTES THE AGREEMENT AS HIS OWN FREE ACT AND DEED.
* * * * * *
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DELIVERED TO BURROW THE 30th DAY OF MARCH, 2007.
/s/ Michael L. Burrow Date: April 2, 2007
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Michael L. Burrow
ENGLOBAL CORPORATION
By: /s/ William A. Coskey Date: April 2, 2007
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Name: William A. Coskey
Title: Chairman
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EXHIBIT A
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SECOND AMENDED AND RESTATED ALLIANCE STOCK OPTION AGREEMENT