SEVERANCE AND COOPERATION AGREEMENT
Exhibit 10.1
SEVERANCE AND COOPERATION
AGREEMENT
This
Severance And Cooperation Agreement (“Agreement”) is entered into by and between
Xxx X. Xxxxx (“Xxxxx”) and Epic Energy Resources, Inc. (the “Company”) as
follows:
1. Termination of
Employment. Xxxxx and Company acknowledge that Xxxxx’x
employment with Company terminated effective April 18, 2009 (the “Termination
Date”). The April 18, 2009 termination without cause included a
resignation by Xxxxx and a termination from all officer and employee positions
with the Company and from all officer, director and employee positions with all
subsidiaries of the Company. In addition, Xxxxx hereby resigns from
his position as a director of the Company. Except as expressly set
forth below, Xxxxx is entitled to no payment, compensation or other benefits
after the Termination Date.
2. Severance. In
consideration for Xxxxx’x compliance with this Agreement, Company agrees to pay
severance payments (the “Severance Payments”) at the following times and in the
following amounts: $250,000 on the third business day following the
Effective Date, as Effective Date is defined in paragraph 5(b) below; $100,000
on or before March 31, 2010; and $150,000 on or before September 30,
2010. The Company will withhold all applicable taxes from the
Severance Payments. No further compensation, nor a bonus for the 2009
performance year or future years, will be paid.
3. Releases.
(a) Xxxxx’x Release of
Company. In consideration of the promises and covenants made
herein, Xxxxx, for himself, his heirs, executors, administrators and assigns,
does hereby RELEASE, ACQUIT AND FOREVER DISCHARGE Company and its current or
former parents, subsidiaries, and affiliates, and each of its and their former
or current directors, officers, agents, employees, successors, predecessors, and
attorneys (“the Released Parties”) from any and all claims, demands,
causes of action and liabilities of any kind or character, that may as a matter
of law be released by agreement, which Xxxxx ever had, now has or may hereafter
have arising out of or relating to any act, omission, transaction, cause or
thing that has happened through the date that Xxxxx signs this Agreement
including, without limitation, those related to Xxxxx’x employment by Company or
the termination thereof (“the Released Claims”).
Without
limiting the generality of the foregoing, Xxxxx understands and agrees that this
Release is a release of any claim or cause of action for breach of any
employment, commission or other agreement existing between Xxxxx and Company,
including all subsidiaries of the Company (all of which agreements are hereby
acknowledged to have terminated), or otherwise related, in any way, to Xxxxx’x
employment by the Company or by any subsidiary of the Company. Such
released claims include, for example, claims arising under any and all
applicable statutory employment laws, such as the Age Discrimination in
Employment Act; Title VII of the Civil Rights Act of 1964 (and all of its
amendments), the Americans with Disabilities Act of 1990, as amended; the
Anti-Retaliation provision of the Texas Workers Compensation Act; the Texas
Commission on Human Rights Act; the Xxxxxxxx-Xxxxx Act; the Texas Pay Day Law;
the Texas Labor Code; the Family and Medical Leave Act; the National Labor
Relations Act; the Fair Credit Reporting Act; and any other state or federal
statute or regulation governing the employment relationship or Xxxxx’x rights,
or Company’s obligations thereunder.
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Xxxxx
also releases any claims or causes of action for invasion of privacy,
intentional or negligent infliction of emotional distress, wrongful termination,
promissory estoppel, false imprisonment, defamation, negligence, gross
negligence, breach of contract, tortious interference with contract or business
relationship, misrepresentation, deceptive trade practices, fraud, and any other
employment-related claims, or for any personal injuries, however characterized,
or by virtue of any fact(s), act(s) or event(s) occurring prior to the Effective
Date of this Agreement.
This
Agreement shall not constitute a waiver of employee’s right to initiate or
participate in proceedings before the Equal Employment Opportunity Commission,
or other similar entities in the United States, but shall constitute a waiver of
employee’s right to recover any monetary award, property or thing of value, as a
result of such proceedings.
(b) The Company’s Release of
Xxxxx. In consideration of the promises and covenants
made herein, the Company does hereby RELEASE, ACQUIT AND FOREVER DISCHARGE Xxxxx
from any and all claims, demands, causes of action and liabilities of any kind
or character, that may as a matter of law be released by agreement, which the
Company ever had, now has or may hereafter have arising out of or relating to
any act, omission, transaction, cause or thing that has happened through the
date that Xxxxx signs this Agreement including, without limitation, those
related to Xxxxx’x employment by Company or the termination thereof (“the
Released Claims”).
Without
limiting the generality of the foregoing, the Company understands and agrees
that this Release is a release of any claim or cause of action for breach of any
employment, commission or other agreement existing between Xxxxx and Company,
including all subsidiaries of the Company (all of which agreements are hereby
acknowledged to have terminated), or otherwise related, in any way, to Xxxxx’x
employment by the Company or by any subsidiary of the Company. Such
released claims include, for example, claims arising under any and all
applicable statutory employment laws, such as the Age Discrimination in
Employment Act; Title VII of the Civil Rights Act of 1964 (and all of its
amendments), the Americans with Disabilities Act of 1990, as amended; the
Anti-Retaliation provision of the Texas Workers Compensation Act; the Texas
Commission on Human Rights Act; the Xxxxxxxx-Xxxxx Act; the Texas Pay Day Law;
the Texas Labor Code; the Family and Medical Leave Act; the National Labor
Relations Act; the Fair Credit Reporting Act; and any other state or federal
statute or regulation governing the employment relationship or Xxxxx’x rights,
or Company’s obligations thereunder.
The
Company also releases any claims or causes of action for invasion of privacy,
intentional or negligent infliction of emotional distress, wrongful termination,
promissory estoppel, false imprisonment, defamation, negligence, gross
negligence, breach of contract, tortious interference with contract or business
relationship, misrepresentation, deceptive trade practices, fraud, and any other
employment-related claims, or for any personal injuries, however characterized,
or by virtue of any fact(s), act(s) or event(s) occurring prior to the date of
Xxxxx’x signing of this Agreement.
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4. Time to Review and
Revoke.
(a) Xxxxx
may take up to twenty-one (21) calendar days from the date that he receives this
Agreement to decide whether to sign. If Xxxxx signs the Agreement
before the end of that twenty-one (21) day period, he represents that he did so
voluntarily for his own benefit without pressure from the Company. If
the Company does not receive a copy of this Agreement with Xxxxx’x original
signature by the end of the twenty-one day period, this offer shall be null and
void and Xxxxx shall not receive any Severance Payment under this
Agreement.
(b) After
Xxxxx signs this Agreement, he will have seven (7) calendar days in which to
revoke the Agreement by delivering written notice before the end of the
seven-day period. If Xxxxx revokes this Agreement, this Agreement
will be null and void, and Xxxxx will not receive any Severance Payments under
this Agreement. If Xxxxx does not revoke this Agreement within seven
(7) days after he signs it, this Agreement will be final and binding on the
eighth (8th) day
after Xxxxx signs it (“Effective Date”).
5. Return of
Property. Xxxxx represents that Xxxxx has returned to Company
all Company property in Xxxxx’x possession, and Xxxxx acknowledges that Company
has returned to him all of his personal property in the possession of the
Company. Company Property includes any equipment, computer and
related equipment, access cards, and, without any deletions or changes, all
documents, notes, calendars, manuals, books, notebooks, email and data that
Xxxxx created or received during his employment with the
Company. Company Property also includes anything recorded in any way,
including without limitation handwritten, typed, electronic, digital, video,
audio or photographic.
6. Confidentiality and
Confidential Information.
Except as
required by law:
(a) If
asked, Xxxxx will respond to any inquiries as to differences between Xxxxx and
any of the Released Parties with the comment that “any differences have been
resolved by mutual agreement.” He will not disclose any other related
information except for information previously disclosed by the Company is press
releases or reports filed with the U.S. Securities and Exchange
Commission.
(b) Xxxxx
shall not use or disclose confidential or privileged information relating to the
Company, including without limitation, non-public information about the Company,
industry information that the Company holds as confidential and that is not
known to the Company’s competitors in the industry, information regarding any of
the Company’s clients (including without limitation the names and contact
information of all client contacts and client needs or specifications), any of
the Company’s current or future projects, marketing and advertising strategies
and/or plans, billing information, costing and price information, client lists,
any other special concepts, information or technique peculiar to the Company or
its clients, financial information, business plans, vendors, personnel
information (including employee names, home addresses, phone numbers,
compensation, or job descriptions or responsibilities) and trade
secrets (“Confidential
Information”). Xxxxx shall notify the Company’s President in writing by overnight delivery by a nationally
recognized courier service delivered within two business days of receiving
any summons, subpoena or other legal process requesting
Xxxxx to disclose any
Confidential Information. Xxxxx shall not disclose any requested
Confidential Information until the last day Xxxxx can do so consistent with his legal obligations.
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7. Non-Competition.
In
consideration for the valuable consideration described in this Agreement, Xxxxx
acknowledges and agrees that, unless a waiver or exception signed by the
Chairman of the Board is delivered to Xxxxx, for two years from the Effective
Date, Xxxxx will not, in the Market Area, as that term is defined below, engage
in the Same Or A Similar Business As The Company (as defined below), including
working for any company or business as an agent, consultant, partner, employee,
officer, or independent contractor of, or being a shareholder owning more than
one percent of the common stock of, or of any other class of equity security of,
or of any security convertible into more than one percent of the outstanding
securities of, a class of equity securities of, such other company involved in a
Same Or Similar Business As The Company.
The term
“Same Or A Similar Business As The Company” shall be defined as engineering
services, field services, work force training and development, other services
performed by Epic Integrated Solutions or management consulting, in each case,
with respect to the energy industry.
The term
“Market Area” shall be defined as (a) the “lower” 48 states of the United States
of America (which is all states of the U.S. excluding Hawaii and Alaska), and
(b) the United Arab Emirates.
8. Non-Interference/Non-Solicitation. Xxxxx
agrees that for two years after the Effective Date, Xxxxx shall not solicit or
recruit, directly or by assisting others, any other employees of the Company,
nor shall Xxxxx contact or communicate with any other employees of the Company
for the purpose of inducing other employees to terminate their employment with
the Company. For purposes of this covenant, “other employees” shall
refer to employees who are actively employed by, or doing business with, the
Company at the time of the attempted recruiting or hiring or have been actively
employed by, or doing business, with Company within three months prior to the
Termination Date.
9. Enforcement. Xxxxx
acknowledges and agrees that the agreements set forth above are ancillary to an
otherwise enforceable agreement and supported by independent, valuable
consideration as required by Tex. Bus. & Com. Code Xxx.
§15.50. Xxxxx further acknowledges and agrees that Xxxxx understands and agrees
that, in the event that Xxxxx violates Section 7, 8 or 9 in this Agreement, the
Company will suffer immediate and irreparable harm which cannot be accurately
calculated in monetary damages. Consequently, Xxxxx acknowledges and
agrees that the Company shall be entitled to immediate injunctive relief, either
by temporary or permanent injunction without the necessity of posting bond, to
prevent such a violation. Xxxxx acknowledges and agrees that this
injunctive relief shall be in addition to any other legal or equitable relief to
which the Company would be entitled, that the limitations as to time,
geographical area, and scope of activity to be restrained are reasonable and
acceptable to Xxxxx and do not impose any greater restraint than is reasonably
necessary to protect the goodwill and other business interests of the
Company. Xxxxx further agrees that if, at some later date, a court of
competent jurisdiction determines that these Agreements do not meet the criteria
set forth in Tex. Bus. & Com. Code Xxx. §15.50(2), these Agreements shall be
reformed by the court, pursuant to Tex. Bus. & Com. Code Xxx. §15.51(c), and
enforced to the maximum extent permitted under Texas law.
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10. Cooperation. Xxxxx
agrees to cooperate with the Company or any of its affiliates in responding to
any subpoenas and in pursuing or defending any claims or actions now in
existence or which may be brought in the future against or on behalf of the
Company, its members, subsidiaries or affiliates, which relate to events or
occurrences that transpired while Xxxxx was employed by the
Company. Xxxxx’x reasonable cooperation in connection with such
claims or actions shall include, but not be limited to, being available to meet
with counsel to prepare for government inquiries, discovery or trial, acting as
a witness on behalf of the Company, and treating all communications with the
Company’s counsel as confidential. Xxxxx also agrees to reasonably
cooperate with the Company in connection with any investigation, review or
hearing of any federal, state, or local government authority as any such
investigation, review or hearing relates to events or occurrences that happened
while Xxxxx was employed by the Company. Xxxxx understands that in
any legal action, investigation, hearing, or review covered by this Section that
the Company expects Xxxxx to provide only accurate and truthful information or
testimony. The Company will pay any expenses necessarily and
reasonably incurred by Xxxxx in complying with this Section, but will not pay
Xxxxx a fee for such service.
11. No Third-Party
Support. Xxxxx agrees that Xxxxx will not counsel or assist
any attorneys or their clients in the presentation or prosecution of any
disputes, differences, grievances, claims, charges, or complaints by any third
party against the Company and/or any officer, director, employee, agent,
representative, shareholder or attorney of the Company, unless under a subpoena
or other court order to do so.
12. Other
Agreements.
(a) Xxxxx
will vote in favor of the Company’s nominees for directors at the next meeting
of stockholders and will not in any manner at any time for 24 months subsequent
to the Effective Date vote for, support or attempt to elect directors other than
those nominated by the Board;
(b) For
24 months subsequent to the Effective Date, Xxxxx will not, directly or
indirectly, and will not in cooperation with any other stockholder or
stockholders, (i) call or otherwise request a meeting of stockholders of the
Company, or (ii) exercise any right, or undertake any activity concerning the
Company to which a stockholder owning ten percent of the outstanding is
entitled, and to which stockholders owning less than ten percent are not
entitled, under the Colorado Business Corporation Act or under any other
applicable law or regulation, or (iii) exercise any right, or undertake any
activity concerning the Company to which a stockholder owning five percent of
the outstanding is entitled, and to which stockholders owning less than five
percent are not entitled, under the Colorado Business Corporation Act or under
any other applicable law or regulation.
(c) For
24 months subsequent to the Effective Date, Xxxxx will not discuss matters
related to the Company with holders of the Company’s securities (except for
members of Xxxxx’x family), including holders of debentures issued by the
Company, or with representatives or agents of those security
holders;
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(d) For
24 months subsequent to the Effective Date, Xxxxx will not discuss any matters
related to the Company with any employee of the Company except for the Chief
Executive Officer or another employee designated in writing by the Chief
Executive Officer.
(e) Xxxxx
will forfeit and cancel the grant to Xxxxx of 1,500,000 unvested shares approved
by the Board on December 4, 2008 (the “1.5M Unvested Shares”), and will forfeit
and cancel all the 1.5M Unvested Shares, which includes the cancelation and
forfeiture of the 300,000 of the 1.5M Unvested Shares that were granted to Xxxxx
in December of 2008;
(f) the
Company agrees that the termination of Xxxxx is without cause; and
(g) the
Company will cooperate with Xxxxx with respect to transactions requested by
Xxxxx pursuant to Rule 144 promulgated under the Securities Act of 1933,
provided that to the extent that a transaction requires that Xxxxx is not an
“affiliate” of the Company and Xxxxx beneficially and/or of record owns more
than five percent of the outstanding common stock of the Company at that time,
Xxxxx will provide a legal opinion from his legal counsel, which opinion and
counsel will be reasonably satisfactory to the Company, stating that Xxxxx is
not an affiliate of the Company.
(h) the
Company will pay Xxxxx $4153.85 as payment, on a pro rata basis, of the
quarterly cash fee for serving as a non-employee director from April 19, 2009
through the end of the quarter. If this payment is made prior to
execution of this Agreement, it will not be paid again upon execution of this
Agreement.
13. Non-Disparagement by
Xxxxx.
Except
for truthful statements made as legally required by a subpoena or legal summons,
Xxxxx agrees that:
(a) he
shall not make any statement about the Company or any of its employees,
directors, agents or representatives to any media outlet (including without
limitation any television, radio, newspaper, blogs, chat board, website or other
digital media); and
(b) he
shall not make any disparaging or derogatory statements to any person or entity
about the Company, or its parent or subsidiaries, or any of their directors,
officers, employees, agents or representatives.
14. Non-Disparagement By The
Company. The Company represents to Xxxxx that it has no
intention to make disparaging or derogatory statements to any person or entity
about Xxxxx, except for truthful statements made as legally required by a
subpoena or legal summons. The parties acknowledge that the Company
cannot control all statements made by all of its employees.
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15. Denial of
Liability. Neither the execution of this Agreement, nor the
payment or performance of the consideration hereof shall constitute nor be
deemed to be an admission of liability on the part of any party, all of which is
expressly denied.
16. Acknowledgments. Xxxxx
represents and acknowledges that in executing this Agreement, Xxxxx does not
rely and has not relied upon any representation or statement made by Company, or
its agents, representatives, or attorneys, with regard to the subject matter,
basis or effect of this Agreement or otherwise, and that Xxxxx has been given
the opportunity to engage and consult with an attorney of his choosing in the
negotiation and execution of this Agreement.
17. Governing Law and Forum
Selection. This Agreement shall in all respects be
interpreted, enforced, and governed under the laws of the United States and the
State of Texas. Further, any dispute arising under this Agreement
shall be resolved by litigation exclusively in Xxxxxxxxxx County,
Texas.
18. Savings
Clause. Should any provision of this Agreement be declared to
be determined by any court to be illegal or invalid, the validity of the
remaining parts, terms, or provisions shall not be affected thereby and said
illegal or invalid part, term, or provision shall be deemed not to be a part of
this Agreement.
19. Entirety of
Agreement. This Agreement sets forth the entire Agreement
between the parties hereto, and fully supersedes any and all prior agreements or
understandings between the parties hereto, pertaining to the subject matter
hereof. This Agreement may only be changed in writing and when signed
by both Xxxxx and the Company. No delay or omission by the Company in
exercising any right under this Agreement shall operate as a waiver of that or
any other right.
20. Binding
Effect. This Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their successors and
assigns. Xxxxx warrants and represents to Company that Xxxxx has not
conveyed nor assigned any interest in or to any of the claims described
herein.
21. Counterpart
Execution. The parties agree that this Agreement may be
executed in multiple counterparts, each of which shall be deemed an original for
all purposes.
22. Interpretation and
Construction. Each of the parties has had an adequate
opportunity to read and review, and to consider with its own counsel, the effect
of the language of this Agreement and has agreed to the use of the particular
language of this Agreement. Any question of interpretation or
construction will not be resolved by any rule providing for interpretation or
construction against the party who causes the uncertainty to exist or against
the drafters of this Agreement.
23. Headings. The
parties agree that the subject headings set forth at the beginning of each
section in this Agreement are provided for each of reference only, and shall not
be utilized for any purpose in connection with the construction, interpretation,
or enforcement of this Agreement.
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24. Notices. All
notices, requests, demands, directions and other communications ("Notices")
concerning this Agreement, except for the Notice required by paragraph 6(b) of
this Agreement, shall be in writing and shall be mailed, delivered personally,
sent by telecopier or facsimile, or emailed to the applicable party at the
address of such party. When mailed, each such Notice shall be sent by first
class, certified mail, return receipt requested, enclosed in a postage prepaid
wrapper, and shall be effective on the fifth business day after it has been
deposited in the mail. When delivered personally, each such Notice shall be
effective when delivered to the address for the respective party, provided that
it is delivered on a business day and further provided that it is delivered
prior to 5:00 p.m., local time of the party to whom the notice is being
delivered, on that business day; otherwise, each such Notice shall be effective
on the first business day occurring after the date on which the Notice is
delivered. When sent by email, telecopier or facsimile, each such Notice shall
be effective on the day on which it is sent provided that it is sent on a
business day and further provided that it is sent prior to 5:00 p.m., local time
of the party to whom the Notice is being sent, on that business day; otherwise,
each such Notice sent by email, telecopier or facsimile shall be effective on
the first business day occurring after the date on which the Notice is sent.
Each Notice shall be addressed to the other party at its address as shown
immediately below, or to such other address as such party may designate in
writing from time to time to the other party:
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To
Xxxxx:
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To
the Company:
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Xxx
X. Xxxxx
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30
Fernglen Dr.
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0000
Xxxx Xxxxxxx Xx., Xxxxx 000
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Xxx
Xxxxxxxxx, XX 00000
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Xxx
Xxxxxxxxx, XX 00000
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IN
WITNESS WHEREOF, the parties are executing this Agreement in the designated
spaces below to set forth their respective agreements with the terms and
conditions of this Agreement.
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XXX
X. XXXXX
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By:/s/ Xxxx X. Xxxxxxxx
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/s/Xxx
X. Xxxxx
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Printed
Name: Xxxx X.
Xxxxxxxx
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Date:
6/22/09
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Title: Chairman
of the Board
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Date: 6/24/09
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