SEPARATION AND RELEASE AGREEMENT
Exhibit
10.1
WHEREAS,
EPiC Energy Resources, Inc., and all its affiliates, subsidiaries, successors,
and assigns (hereinafter referred to as the “Company”) and Xxxxx Xxxxxxxx
(hereinafter referred to as “I”, “me”, or “Employee”) wish to terminate their
employment relationship on a mutually satisfactory and final basis.
In
consideration of the mutual promises contained in this Agreement, the Company
and I agree as follows:
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1.
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The
Company waives, releases, and forever discharges me from any and
all
claims and personal liability (whether presently known or unknown)
under
federal, state, or local law which the Company now has, or that
may arise,
based on or as a result of any acts or omissions that first occurred
on or
before the day of this Agreement. The Company further understands
and
agrees as follows:
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(a)
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That
the Company is releasing and giving up not only all claims based
on acts
or omissions first occurring before it signs this Agreement, but
also
claims based on the continuing or future effects of any such acts
or
omissions;
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(b)
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That
the Company is releasing and giving up all claims against me including
all
claims (1) by the Company through its owners, officers, directors,
agents, employees, attorney, subsidiaries, parents, and affiliates,
(2) by any person or entity which might assert liability against me
through the Company, and (3) by the successors and assigns of all
releasing parties;
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(c)
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That
the Company is releasing and giving up not only claims that it
knows about
or should know about, but also claims that are unknown to it at
the
present time or that are based on prior acts or omissions that
are unknown
to it at the present time, and understands and agrees that it is
releasing
and giving up any such claims even if it does not find out about
them
until later;
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(d)
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That
the Company is releasing and giving up not only all claims that
it might
have, but also all claims that anyone else might have on its
behalf;
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2.
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I
hereby voluntarily resign my position with the Company, effective
October 31, 2008, which resignation has been accepted, in order to
receive the enhanced benefits described in this
Agreement.
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3.
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I
waive any right to employment or re-employment with the Company
or any of
the released parties. I also promise and agree that I will not
apply for
employment or re-employment with the Company unless asked to do
so by the
Company or its authorized
representatives.
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4.
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In
consideration for my acceptance of this Agreement, the Company
agrees to
pay or provide me the following benefits, less any taxes or withholdings
due in accordance with customary payroll practices, simultaneous
with my
execution and delivery of this
agreement:
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$12,500.00,
equivalent to pay for the month of November 2008, and
$204.00,
equivalent to the cost of one year of group life insurance previously provided
by the Company.
All
stock
options previously granted to me are ratified and reaffirmed by the Company
and
will immediately vest. EPiC’s Board of Directors has agreed to extend the
expiration date of current options per the table below:
100,000
non-qualified options at a strike price of $0.50/share with an extended
expiration date of 10/24/2011, and
100,000
non-qualified options at a strike price of $3.00/share with an extended
expiration date of 10/24/2011, and
142,500
non-qualified options at a strike price of $3.30/share with an extended
expiration date of 12/13/2012.
The
Company hereby agrees to immediately award and grant to me 120,000 shares of
restricted Company stock, these shares of Company stock to be restricted shares
subject to SEC section 144 requirements with the sole restriction being
compliance with SEC regulations .
The
Company will direct the Transfer Agent to issue an amended or new stock
certificate that removes the “Restricted” language from the certificate on the
2,000,000 shares of Company stock I own (number CSI-145).
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5.
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The
Parties agree, on behalf of themselves, and their heirs, representatives,
successors, and assigns to waive and release the Company and each
other
from any and all rights or claims that we now have, or that may
arise,
based on or as a result of any acts or omissions that first occurred
on or
before the day on which we sign this Agreement. We further understand
and
agree as follows:
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(a)
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That
we are releasing and giving up not only all claims based on acts
or
omissions first occurring before we sign this Agreement, but also
claims
based on the continuing or future effects of any such acts or
omissions;
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(b)
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That
we are releasing and giving up all claims not only by or against
the
Company, but also all claims (1) by or against the Company’s owners,
officers, directors, agents, employees, attorney, subsidiaries,
parents,
and affiliates, (2) by or against any person or entity which might be
liable for the acts or omissions of any parties we are releasing,
and
(3) against the successors and assigns of all released
parties;
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(c)
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That
we are releasing and giving up not only claims that we know about
or
should know about, but also claims that are unknown to us at the
present
time or that are based on prior acts or omissions that are unknown
to us
at the present time, and we understand and agree that we are releasing
and
giving up any such claims even if we do not find out about them
until
later;
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(d)
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That
we are releasing and giving up not only all claims that we might
have, but
also all claims that anyone else might have on our behalf;
and
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(e)
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That
I am releasing and giving up all accrued benefits through the date
of my
termination, save and except the benefits set forth in paragraph
4 of this
Agreement and any benefits provided to me before the date of this
Agreement.
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6.
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My
waiver and release in the preceding paragraph includes, but is
not limited
to, any claims relating in any way to my employment with or separation
of
employment from the Company including, but not limited to, any
claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
sections 1981 and 1985, the Age Discrimination in Employment Act of
1967, the Equal Pay Act of 1963, the Employee Retirement Income
Security
Act of 1974, the Americans with Disabilities Act, the Older Workers
Protection Act, and any other federal, state, or local laws, ordinances,
or regulations applying to or relating to employment. It is understood
that this waiver does not affect any rights or claims that might
arise
after the date of my resignation from employment with the
Company.
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7.
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I
also agree that I will not file any charges, claims, complaints,
lawsuits,
or actions against any of the released parties based on or as a
result of
any of the matters I am releasing in this Agreement. The Company
also
agrees that it will not file any charges, claims, complaints, lawsuits,
or
actions against me based on or as a result of any of the matters
it is
releasing in this Agreement
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8.
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I
agree to keep this Agreement and its terms strictly confidential.
This
Agreement is entered into by both the Company and me for the sole
purpose
of terminating my employment upon a mutually satisfactory and final
basis
and without any admissions of wrongdoing, liability, or improper
performance by either of us.
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9.
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I
acknowledge that the Company gave me a copy of this proposed Agreement
on
October 31, 2008, and also advised me to consult an attorney and/or
other advisor about this offer and proposed Agreement. I understand
that
this offer is irrevocable for twenty-one (21) days from October 31,
2008. However, pursuant to the Older Workers Benefit Protection
Act, if l
have not signed and delivered this Agreement to the Company within
such
twenty-one (21) day period, this offer and proposed Agreement is
withdrawn
and of no further effect, and I will have no rights under any of
its
provisions. I understand that I have seven (7) days from the date
of my
signing of this Agreement to revoke my signature and acceptance
of this
Agreement, and that this Agreement will not be effective or in
force
during that seven day revocation period. If I revoke my signature
and
acceptance during the seven day period, this Agreement will be
null and
void, but if I do not revoke within the seven day period, then
this
Agreement will become fully binding and
effective.
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10.
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This
Agreement constitutes the final, complete, sole and exclusive agreement
between the Company and me, and all prior agreements, representations,
negotiations, statement, explanations, assurances and promises
(whether
oral or written) are merged herein.
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11.
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I
acknowledge that I am more than eighteen (18) years of age; that
the only
consideration for my signing of this Agreement are the terms stated
herein; that this decision has not been influenced or coerced in
any way
by an employee or other person acting on behalf of the Company;
that no
other promises, agreements, representations, or explanations of
any kind
have made to or with me by anyone to cause me to agree to and sign
this
Agreement; and that in signing this Agreement I rely solely on
my own
reading of the terms of this Agreement and my own opinions, beliefs,
and
interpretations (or those of my counsel, if any). The Company acknowledges
it is authorized to enter into this Agreement and; that the only
consideration for its signing of this Agreement are the terms stated
herein; that this decision has not been influenced or coerced in
any way
by me or any other person acting on behalf of the Company; that
no other
promises, agreements, representations, or explanations of any kind
have
made to or with it by anyone to cause it to agree to and sign this
Agreement; and that in signing this Agreement the Company relies
solely on
its own reading of the terms of this Agreement and its own opinions,
beliefs, and interpretations (or those of its counsel, if any).
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12.
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I
acknowledge that I have been advised by the Company to review this
Agreement with legal counsel and/or any other advisor of my choosing;
that
I know and understand the contents of this Agreement including
its final
and binding effect and that I sign this Agreement knowingly and
voluntarily of my own free will.
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13.
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PLEASE
READ THIS AGREEMENT CAREFULLY. IT CONTAINS A RELEASE OF ALL KNOWN
AND
UNKNOWN CLAIMS.
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14.
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Rules
of Construction. The following rules shall govern the interpretation
and
enforcement of this agreement:
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(a)
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Severability.
The parties acknowledge and agree that each provision of this
Agreement
shall be enforceable independently of every other provision.
Furthermore,
the parties acknowledge and agree that, in the event any provision
of this
Agreement is determined to be unenforceable for any reason, the
remaining
covenants and/or provisions will remain effective, binding, and
enforceable. In the event that any provision of this Agreement
is
determined to be unenforceable for any reason, the parties agree
to
substitute a comparable provision dealing with the same subject
matter as
the unenforceable provisions, which approximates the effect and
intent of
the unenforceable provision to the maximum extent permissible
under
applicable law.
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(b)
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Waiver.
The parties acknowledge and agree that the failure of either
party to
enforce any provision of this Agreement shall not constitute
a waiver of
that particular provision or of any other provisions of this
Agreement.
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(c)
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Choice
of Law. The parties acknowledge and agree that the law of Texas
will
govern the validity, interpretation, and effect of this Agreement
and
dispute relating to, or arising out of, the employment relationship
between the Company and the
Employee.
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(d)
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Modification.
The parties acknowledge and agree that this Agreement constitutes
the
complete and entire agreement between them, that the parties
have executed
this Agreement based upon the express terms and provisions
set forth
herein, that the parties have not relied on any representations,
oral or
written, which are not set forth in this Agreement, that no
previous
agreement, either oral or written, shall have any effect on
the terms or
provisions of this Agreement, and that all previous agreements,
either
oral or written, are expressly superseded and revoked by this
Agreement.
In addition, the parties acknowledge and agree that the provisions
of this
Agreement may not be modified by any subsequent agreement unless
the
modifying agreement (i) is in writing, (ii) contains an express
provision referencing this Agreement, (iii) is signed by the
Employee, and (iv) is signed by an authorized representative of the
Company.
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(e)
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Execution.
The parties agree that this Agreement may be executed in multiple
counterparts, each of which shall be deemed an Original for
all
purposes.
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(f)
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Notices.
The parties acknowledge and agree that any and all Notices
required to be
delivered under the terms of this Agreement shall be forwarded
by personal
delivery or certified U.S. mail. Notices shall be deemed to
be
communicated and effective on the date they are personally
delivered or
three (3) days after the date such Notices are deposited (postage
pre-paid) in the U.S. Mail. Such Notices shall be addressed
as
follows:
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To
the Employee:
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To
the Company:
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Xxxxx
Xxxxxxxx
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0000
Xxxxxxxxxx Xxxx Xx.
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0000
Xxxx Xxxxxxx Xxxxx, Xxx. 000
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Xxxx,
XX 00000-0000
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Xxx
Xxxxxxxxx, XX
00000-0000
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IN
WITNESS WHEREOF,
this
Agreement is executed on this 21st day of November, 2008.
| EMPLOYEE | ||
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| /s/Xxxxx Xxxxxxxx | ||
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Xxxxx Xxxxxxxx |
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SUBSCRIBED
AND SWORN TO before me, the undersigned authority on this 21st day of November,
2008.
| /s/Xxxxx X. Xxxxx | |||
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Notary Public — State of Texas |
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| My Commission Expires: September 5, 2011 |
| EPIC ENERGY RESOURCES, INC. | ||
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| /s/Xxxxx X. Xxxxxx | ||
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Xxxxx X. Xxxxxx, VP Human Resources |
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SUBSCRIBED
AND SWORN TO before me, the undersigned authority on this 21st day of November,
2008.
| /s/Xxxxxxx Vallme | |||
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Notary Public — State of Colorado |
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| My Commission Expires: March 2, 2011 |
