SEPARATION AGREEMENT AND RELEASE
Exhibit
10.1
SEPARATION
AGREEMENT AND RELEASE
This
Separation Agreement and Release (“Agreement”) is made and entered into by and
between ICO, Inc. and ICO Polymers North America, Inc., both of which having
corporate offices at 0000 Xxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000
(collectively, “Company”), and Xxxxx X. Xxxxxxxx, with a residence address of 00
Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (“Employee”).
1. Termination.
Employee’s employment with Company has terminated effective at midnight Central
Standard Time on May 13, 2005 (the “Termination Date”), through which date
Employee will be paid his regular salary. Pursuant to the Company’s policy set
forth in its employee handbook, Employee shall be paid unused vacation
days.
2. Definitions.
(a) “Claims”
means
all theories of recovery of whatever nature, whether known or unknown, and
whether recognized by the law or equity of any jurisdiction. This term includes
causes of action, charges, indebtedness, losses, claims, liabilities, and
demands, whether arising in equity or under the common law or under any contract
or statute. This term includes any claims of discrimination, harassment,
retaliation, retaliatory discharge, or wrongful discharge, and any other claim
which is alleged or which could be alleged by Employee, or on Employee’s behalf,
in any lawsuit or other proceeding. This term includes any claims and rights
arising under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §621,
et
seq.;
Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, et
seq.;
the
Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001, et
seq.;
the
Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000, et
seq.;
the
Worker Adjustment and Retraining Xxxxxxxxxxxx Xxx, 00 X.X.X. §0000,
et
seq.;
the
Family and Medical Leave Act, 29 U.S.C. §2601, et
seq.;
and
any other federal, state or local law or regulation regarding employment or
the
termination of employment. This term includes any and all rights, benefits
or
claims Employee may have under any employment contract or under any severance,
bonus, stock option or incentive compensation plan, program or
agreement.
(b) “Damages”
means
all elements of relief or recovery of whatever nature, whether known or unknown,
which are recognized by the law or equity of any jurisdiction which is sought
or
which could be sought by Employee, or on Employee’s behalf, in any lawsuit or
other proceeding. This term includes actual, incidental, indirect,
consequential, compensatory, exemplary, liquidated and punitive damages;
rescission; attorneys’ fees; interest; costs; equitable relief; and expenses.
This term also includes wages, benefits or other compensation owed, or allegedly
owed to Employee, by virtue of Employee’s employment or termination of
employment with Company, including severance, bonuses, stock option or incentive
compensation, payable pursuant to any plan, program, or agreement.
(c) “Employee”
means
and includes Employee acting individually; in any corporate or other
representative capacity; and on behalf of Employee’s heirs, executors,
administrators, legal representatives, successors, beneficiaries, and
assigns.
(d) “Released
Parties”
means
and includes Company, and its past, present and future owners, trustees,
parents, subsidiaries, affiliates, and related entities, and all of the
foregoing entities’ and persons’ past, present and future directors, officers,
employees, associates, agents, benefit plans (and each such plan’s fiduciaries,
administrators, trustees, sponsors and representatives), insurance carriers,
predecessors, successors, assigns, executors, administrators, and
representatives, in both their representative and individual capacities;
provided that this term does not include Employee. Each of the Released Parties
is an intended beneficiary of this Agreement.
3. Termination
Payments. In
consideration for Employee executing (and not revoking) this Agreement, within
twenty-five (25) days after the Termination Date, and after Employee’s execution
and non-revocation of this Agreement, Company shall: (a) pay Employee the
sum of Twenty Thousand Dollars ($20,000); and (b) pay the premiums for Employee
and his wife’s continued coverage under the Company’s medical and dental plans
for nine months following the Termination Date, provided Employee elects and
is
eligible for such continued coverage pursuant to the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”). The payments referenced in (a) and (b) of the
preceding sentence are referred to as the “Termination Payment” The portion of
the Termination Payment referenced in clause (a) above shall be paid to Employee
in lump sum cash (subject to required taxes and withholding) within thirty
(30)
days after Employee executes this Agreement.
4. Release.
(a) Employee
releases and discharges the Released Parties from, and hereby waives, all Claims
and Damages, including those related to, arising from or attributed to:
(i) Employee’s employment with Company, including the Offer Letter, and the
Employment Agreement signed by Employee on July 16, 2004 (“Employment
Agreement”), and any bonus that might have otherwise been payable under the
Fiscal Year 2005 Executive Leadership Team Incentive Compensation Plan,
(ii) the termination of Employee’s employment, and (iii) all other
acts or omissions related to any matter at any time prior to and including
the
date of Employee’s execution of this Agreement; except that this release will
not affect Employee’s claims for benefits and payments to be payable after the
Termination Date under any of Company’s health or welfare plans.
(b) Employee
understands and expressly agrees that the release in Section 4(a) extends to
all
Claims of every nature and kind, known or unknown, suspected or unsuspected,
past or present (but not future), which Claims are arising from, attributable
to, or related to Employee’s employment with Company, the termination of
Employee’s employment, or any alleged action or inaction of the Released
Parties, and that all such Claims are hereby expressly settled or waived.
Employee further understands and expressly agrees that the release in
Section 4(a) includes the waiver of any Claims and rights Employee may
have
against any of the Released Parties under the Age Discrimination in Employment
Act, the Older Workers Benefit Protection Act, or under any other law
prohibiting age discrimination, arising prior to and including the date of
Employee’s execution of this Agreement.
(c) Employee
agrees not to bring or cause to be brought any Claims against any of the
Released Parties in any court or before any arbitral authority, or accept any
Damages for any Claims against any of the Released Parties, which Claims are
related to, arising from or
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attributed
to Employee’s employment with Company, the Employment Agreement, the termination
of Employee’s employment, and any other matter covered by the release in
Section 4(a). Employee represents and warrants that Employee has not
brought or caused to be brought any such Claims, or accepted any such Damages
for any such Claims, against any of the Released Parties.
5. Cooperation
in Litigation.
Employee agrees that Employee shall cooperate with and assist Company in defense
of any claim, litigation or administrative proceeding brought against Company
or
any other Released Party, as reasonably requested by Company. Such cooperation
and assistance shall include (a) interviews of Employee by legal counsel
for Company or other Released Party as reasonably requested by Company’s
counsel, (b) Employee providing documents (or copies thereof) and executing
affidavits as reasonably requested by Company’s counsel, and (c) Employee
appearing for depositions, trials, and other proceedings as reasonably requested
by Company’s counsel. Furthermore, Employee shall not communicate with any party
adverse to Company, or with a representative, agent or legal counsel for any
such party, concerning any pending or future claims or litigation or
administrative proceedings, except solely through legal counsel for Company.
Nothing in this Section 5 is intended to cause Employee to testify other
than truthfully in any proceeding or affidavit.
6. Warranties.
Employee agrees, represents and warrants that:
(a) The
Termination Payment set forth in Section 3(a) of this Agreement is not something
that Employee is otherwise indisputably entitled to except in exchange for
Employee's execution and non-revocation of this Agreement, and is good and
sufficient consideration for Employee's execution and non-revocation of this
Agreement, and is paid by or on behalf of Company and the other Released Parties
in full satisfaction and settlement of any Claims and Damages;
(b) Employee
is legally and mentally competent to sign this Agreement;
(c) Employee
is the sole owner of any Claims that have been or could have been asserted,
Employee has the requisite capacity and authority to make this Agreement, and
no
portion of any existing or potential Claims has been sold, assigned, pledged
or
hypothecated by Employee to any third party; and
(d) Employee
presently possesses the exclusive right to receive the Termination Payment
paid
in consideration for this Agreement.
7. Choice
of Law.
This Agreement shall be interpreted and construed in accordance with and shall
be governed by the laws of the State of Texas, without reference to principles
of conflict of law of Texas or any other jurisdiction, and, when applicable,
the
laws of the United States.
8. Confidentiality
and Non-Poach Agreements.
(a) Employee
agrees that Employee will not disclose Company’s trade secrets, or other
proprietary, confidential, or non-public information (“Confidential
Information”) acquired during employment with Company. Confidential Information
includes, but is not limited to, the following information pertaining to
Company: non-public financial information;
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information
relating to strategic marketing plans, business plans, business assessments,
product development plans, and planned or contemplated business activities
or
ventures; corporate plans, decisions, investigations, and strategies; cost
or
pricing information; vendor or supplier information, including the identity
of
suppliers and supply pricing; confidential customer information such as prices,
volumes, and products sold to or processed for particular customers, as well
as
customer product formulations, specifications and requirements; and, information
regarding proposed joint ventures, mergers, acquisitions, and other such
anticipated or contemplated transactions. Confidential Information shall not,
however, include information if Employee can establish by written records that
such information is or has become publicly disseminated other than through
Employee.
(b) Employee
further promises and agrees not to damage or attempt to damage the business
reputation or goodwill of the Company, and in this regard promises not to
disparage or make malicious statements regarding the Company’s employees,
officers, and directors.
(c) Employee
shall not disclose the terms or contents of this Agreement to any person who
is
not a party hereto (with the exception of confidential disclosures to Employee’s
immediate family members, personal attorney, or personal tax advisor) unless
ordered by a court of competent jurisdiction, compelled pursuant to a subpoena,
or required for the purpose of a governmental tax audit.
(d) During
the nine (9) months after Employee’s execution of this Agreement, Employee,
acting either directly or indirectly, or through any other person, firm,
corporation, or new employer, will not: (i) induce or attempt to induce or
influence any employee of Company to terminate employment with Company and/or
to
consider or accept employment with a different employer; (ii) assist, directly
or indirectly, any person, firm or corporation in any attempt to acquire the
stock or assets of ICO, Inc. or any of its subsidiaries; (iii) hire any person
who is or was a Company employee as of the date of this Agreement.
9. Return
of Company Property. Employee
shall, on the Termination Date specified in Section 1 above, or if not
logistically possible then as soon as reasonably possible, promptly return
to
Company all Company property in Employee's possession, including, but not
limited to, the following Company property that may have been entrusted to
Employee: keys to any of Company's offices and facilities, credit cards, vehicle
fuel cards, pager, vehicle, cellular telephone, office equipment, customer
lists, and documentation and other information constituting or relating to
Company’s Confidential Information. Notwithstanding the foregoing, as Employee
is executing a consulting agreement with Company, Company shall permit Employee
to retain the laptop computer, blackberry, and ancillary IT equipment assigned
to him, and Company business plans, sales call records, trade secret
information, and other Company-related documents in order that Employee may
perform services for the Company pursuant to the consulting agreement, with
the
understanding that Employee shall return all such items to Company immediately
upon termination of the consulting agreement for any reason. Unless an
authorized representative of the Company agrees otherwise in writing, Employee
has no rights to use or possess any Company property after separation from
Company.
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10. Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties relating to the
subject matter hereof, and supersedes any obligations of Company and the other
Released Parties under any previous agreements, except as otherwise provided
in
this Agreement. Notwithstanding the foregoing, (a) Employee’s obligations under
Article 4 of the Employment Agreement (entitled “Employee Covenants”) and the
Confidentiality and Non-Disclosure Agreement dated July 6, 2004 shall remain
in
full force and effect, and (b) should the parties enter into that certain
Consulting Services Agreement as currently contemplated by the parties, such
Consulting Services Agreement will not be superseded by (nor will it supersede)
this Agreement. No term, provision or condition of this Agreement may be
modified in any respect except by a writing executed by both Employee and
Company. No person has any authority to make any representation or promise
on
behalf of any of the parties not set forth in this Agreement. This Agreement
has
not been executed in reliance upon any representation or promise except those
contained herein.
11. Acknowledgment
of Terms.
Employee acknowledges that Employee has carefully read this Agreement; that
Employee has had the opportunity for review of it by Employee’s attorney; that
Employee fully understands its final and binding effect; that Company admits
to
no wrongdoing in connection with Employee’s employment, the Employment
Agreement, the termination of Employee’s employment, or any other matter covered
by the release in Section 4(a); that this Agreement is intended as a compromise
of all Claims which Employee has alleged or may allege against any of the
Released Parties; that the only promises or representations made to Employee
to
sign this Agreement are those stated herein; and that Employee is signing this
Agreement voluntarily.
12. Waiver.
The failure of Company to enforce or to require timely compliance with any
term
or provision of this Agreement shall not be deemed to be a waiver or
relinquishment of rights or obligations arising hereunder, nor shall this
failure preclude the enforcement of any term or provision or avoid the liability
for any breach of this Agreement.
13. Severability.
Each part, term or provision of this Agreement is severable from the others.
Notwithstanding any possible future finding by a duly constituted authority
that
a particular part, term or provision is invalid, void or unenforceable, this
Agreement has been made with the clear intention that the validity and
enforceability of the remaining parts, terms and provisions shall not be
affected thereby; provided that if the release is invalidated, Employee shall
execute a valid release or this entire Agreement shall be voidable, at the
option of Company, thereby requiring Employee to return that portion of the
Termination Payment described in Section 3 of this Agreement and terminating
the
obligation of Company to provide the Termination Services, to the extent
permitted under applicable law.
14. Costs
and Attorneys’ Fees.
If any action is initiated to enforce this Agreement, the prevailing party
shall
be entitled to recover from the other party its reasonable costs and attorneys’
fees.
15. Construction.
This Agreement shall be deemed drafted equally by all the parties. Its language
shall be construed as a whole and according to its fair meaning. Any presumption
or principle that the language is to be construed against any party shall not
apply. The headings in this Agreement are only for convenience and are not
intended to affect construction or interpretation. This Agreement represents
a
compromise of disputed Claims and is not to be
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construed
as an admission, direct or indirect, against any interest of the parties. Any
references to paragraphs, subparagraphs, or sections are to those parts of
this
Agreement, unless the context clearly indicates to the contrary. Also unless
the
context clearly indicates to the contrary, (a) the plural includes the singular
and the singular includes the plural; (b) “and” and “or” are each used both
conjunctively and disjunctively; (c) “any,”“all,”“each,” or “every” means “any
and all, and each and every”; (d) “includes” and “including” are each “without
limitation;” and (e) “herein,”“hereof,”“hereunder” and other similar compounds
of the word “here” refer to the entire Agreement and not to any particular
paragraph, subparagraph, section or subsection.
16. Timing.
Employee acknowledges: (a) Employee has at least 21 days to consider this
Agreement before executing it, although Employee may execute this Agreement
before the 21 days expires, but not before the Termination Date,
(b) Employee may revoke this Agreement within 7 days after Employee
executes it, (c) such revocation must be in writing (and may be transmitted
by facsimile pursuant to Section 17 below) and received by Company’s President
and Chief Executive Officer within this 7-day period, (d) this Agreement
will not become effective or enforceable, and the Termination Payment set forth
in Section 3 of this Agreement will not be paid until the expiration of this
7-day period without Employee’s revocation, and Employee returns this Agreement
to Company’s President and Chief Executive Officer, and (e) Employee’s
acceptance of any portion of the Termination Payment set forth in Section 3
of
this Agreement after the expiration of the 7-day period shall constitute
Employee’s acknowledgement that he did not revoke the Agreement during the 7-day
period.
17. Delivery
and Signatures by Facsimile.
All
signatures of the parties to this agreement may be transmitted by facsimile,
and
such facsimile will, for all purposes, be deemed to be the original signature
of
such party whose signature it reproduces, and will be binding upon such party.
18. Advice
to Consult Counsel.
Company hereby advises Employee to consult with an attorney prior to executing
this Agreement.
| AGREED AND ACCEPTED: | ICO, INC. | |
| EMPLOYEE | By: /s/ W. Xxxxxx Xxxxxx, Xx. | |
|
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
|
Printed Name: W. Xxxxxx Xxxxxx, Xx.
Title: President & CEO
|
|
| Date: 5/14/05 | ICO Polymers North America, Inc. | |
| By: /s/ Xxx X. Xxxx
Printed Name: Xxx X. Xxxx
Title: Senior V.P., Treasurer &
CFO
|
