Retention Agreement
This Retention Agreement (this
“Retention Agreement”) is made and effective on the 8th day
of December, 2009 (the “Effective Date”), by and among ICO Technology, Inc. a
Delaware corporation (“the Company”), ICO, Inc. (“ICO”) and Xxxxxxx X.
Xxxxxxxxx, a resident of the State of Texas (the “Employee”).
RECITALS
WHEREAS,
Employee is presently employed by the Company, and works at the Company’s
corporate offices in Houston Texas.
WHEREAS, ICO entered into an Agreement
and Plan of Merger with X. Xxxxxxxx, Inc. (“ASI”) and Wildcat Spider, LLC, a
wholly-owned subsidiary of ASI, dated as of December 2, 2009 (the “Merger
Agreement”), pursuant to which ICO will be merged with and into Merger Sub, with
Merger Sub surviving as a wholly-owned subsidiary of ASI (the
“Transaction”).
WHEREAS, the Company would like to
provide Employee with a retention bonus upon the occurrence of the Closing (as
defined in the Merger Agreement) provided that such a Closing occurs and that
Employee remains employed by the Company (or is terminated without cause, as
defined below) and faithfully performs all duties and responsibilities related
to such employment from the Effective Date until and including the Closing Date
(as in the Merger Agreement), and subject to the terms and conditions set forth
in this Retention Agreement.
NOW, THEREFORE, the Company and
Employee agree as follows:
1. Definitions
In addition to the definitions set
forth above in the Recitals, as used herein, the following terms shall have the
meanings set forth below:
a) “Retention
Bonus” means the sum of Fifty-five Thousand Dollars ($55,000.00), payable
pursuant to the terms and conditions set forth in Section 2
below. The Retention Bonus shall be subject to reduction for any and
all applicable federal, state, and/or local withholding obligations or any other
withholdings required to be made by law.
b) “Cause”
has the meaning ascribed to such term in the CIC Plan.
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c)
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“CIC
Plan” means the ICO, Inc. Change in Control Severance Plan (“CIC
Plan”).
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d) “Participation
Agreement” means Employee’s executed Participation Agreement pursuant to which
Employee is entitled to receive benefits under the CIC Plan.
e) “Pre-Closing
Period” means the time period from and after the Effective Date, until and
including the Closing Date, provided that the Closing occurs.
2. Payment of Retention
Bonus
a) Employee
shall be paid the Retention Bonus within ten (10) business days after the
Closing occurs, provided that:
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1)
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during
the Pre-Closing Period Employee (i) faithfully performs all duties and
responsibilities related to Employee’s employment with the Company, (ii)
does not resign from employment with the Company, and (iii) is not
terminated by the Company for Cause;
and
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2)
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Employee
complies with all the Company policies and any agreements Employee may
have with the Company, including all duties regarding conflict of
interest, fiduciary duties, and all non-disclosure, non-solicitation and
non-competition obligations for the benefit of the
Company.
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b) In
the event that Employee’s employment is terminated by the Company without Cause
during the Pre-Closing Period, the Company shall pay Employee the Retention
Bonus within ten (10) business days after the Closing (provided that the Closing
actually occurs).
c) Notwithstanding any other provision
of this Agreement, or any provision to the contrary in ICO’s Severance Policy,
the CIC Plan, the Participation Agreement or any other agreement, plan or
arrangement, the Retention Bonus shall be in addition to, and not in lieu of,
any other bonus, incentive or severance payments, and shall not reduce the
amount payable by ICO, the Company or any affiliate pursuant to any other plan
or arrangement of any kind. ICO and the Company agree that in the
event of any conflict between this provision and any other plan or arrangement
of the Company or any affiliate, the terms of this provision shall
control.
3. Failure of Closing to
Occur
In the event that (a) the Merger
Agreement is terminated by the parties thereto, and/or (b) the Closing does not
occur for any reason: (i) Employee shall not be entitled to payment of the
Retention Bonus, and (ii) this Retention Agreement shall
terminate. ICO’s issuance of a press release announcing that the
Merger Agreement has been terminated shall be conclusive evidence that the
Closing and Closing Date have not occurred and shall not occur, and that no
Retention Bonus shall be due and payable to Employee under any
circumstances.
AGREED
AND ACCEPTED:
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ICO
Technology, Inc.
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Xxxxxxx
X. Xxxxxxxxx
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By:
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/s/
A. Xxxx Xxxxx, Jr.
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/s/
Xxxxxxx X. Xxxxxxxxx
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A.
Xxxx Xxxxx, Jr.
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President
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ICO,
Inc.
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By:
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/s/
A. Xxxx Xxxxx, Jr.
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A.
Xxxx Xxxxx, Jr.
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President
& CEO
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