EXHIBIT 10.3
AGREEMENT AND RELEASE
This Agreement and Release (this
“AGREEMENT”) is between Robert G. Phillips
(“EMPLOYEE”) and EPCO, Inc.
(“COMPANY”).
WITNESSETH
Whereas, EMPLOYEE is employed by COMPANY.
Whereas, EMPLOYEE is resigning from COMPANY
effective June 30, 2007.
Whereas, EMPLOYEE and COMPANY desire to resolve any
and all disputes about EMPLOYEE’s employment with
COMPANY.
Whereas, EMPLOYEE, during his employment had access
to trade secrets and/or proprietary and confidential information
belonging to COMPANY.
Whereas, EMPLOYEE and COMPANY desire to clarify
EMPLOYEE’s obligations with respect to any trade secrets
and/or proprietary and confidential information acquired during
EMPLOYEE’s employment.
Whereas, EMPLOYEE and COMPANY desire to avoid the
expense, delay and uncertainty attendant to any claims that may
arise from EMPLOYEE’s employment with, and resignation from,
COMPANY, as well as any claims that may arise from the disclosure
of any trade secrets and/or proprietary and confidential
information that EMPLOYEE acquired during his employment with
COMPANY.
Whereas, EMPLOYEE desires to release any claims or
causes of action EMPLOYEE may have arising from EMPLOYEE’s
employment with, or his resignation from the COMPANY.
Now, therefore, for and in consideration of the
mutual covenants and promises hereinafter set forth, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, EMPLOYEE and COMPANY hereby
agree:
Section
1.
Severance and Other Payments.
COMPANY, in exchange for the promises of EMPLOYEE
contained below, agrees as follows:
A. COMPANY
agrees to pay EMPLOYEE the lump sum amount of twelve million
dollars and no cents ($12,000,000.00), less applicable legal
standard deductions, within seven (7) days after the expiration of
the EMPLOYEE’s revocation option in Section 5(C) below;
and
B. COMPANY
agrees to pay EMPLOYEE an amount of twenty-nine thousand two
hundred dollars and no cents ($29,200.00) as liquidated unused
vacation days, less applicable legal standard deductions, when such
payroll payments are made generally for the pay period;
and
C. EMPLOYEE
may be eligible for up to eighteen (18) months of COBRA coverage
following EMPLOYEE’s termination of employment. If at the
time of EMPLOYEE’s termination of employment, EMPLOYEE is
enrolled in COMPANY’s medical and dental plan coverages as an
active employee and EMPLOYEE exercises health coverage continuation
rights under COBRA following termination of employment,
EMPLOYEE’s COBRA premium will equal zero ($0.00) and will be
paid for in full by COMPANY until the earliest of: (i) the
expiration the first eighteen (18) full calendar months immediately
following EMPLOYEE’s termination of employment; (ii) the date
EMPLOYEE obtains subsequent employment and becomes eligible for
medical and/or dental benefits coverages to employees of the new
employer; or (iii) the expiration of your COBRA rights. After the
expiration of the foregoing applicable period, EMPLOYEE will be
responsible for the full cost of any health and dental
coverage.
EMPLOYEE acknowledges and agrees that payment of the
foregoing amounts are, and shall be deemed to be, in full and
complete satisfaction of any and all obligations, if any, of
COMPANY and/or its affiliates to EMPLOYEE in respect of his
employment with COMPANY and/or any of its affiliates or
otherwise.
Section
2.
Prior Rights and Obligations.
Except as otherwise provided for in this AGREEMENT,
this AGREEMENT extinguishes all rights, if any, which EMPLOYEE may
have, contractual or otherwise, relating to his employment with, or
resignation from, COMPANY.
Section
3.
Resignation. EMPLOYEE
hereby resigns (i) from employment with COMPANY and/or any of the
affiliates of COMPANY and (ii) as an officer and/or director and/or
any other similar position of COMPANY and/or any of the affiliates
of COMPANY. EMPLOYEE agrees that the effective date of such
resignation is June 30, 2007.
Section
4.
Release .
A. Release
and Waiver: EMPLOYEE hereby agrees to release COMPANY and its
predecessors, subsidiaries, related entities, officers, directors,
shareholders, parent companies, agents, attorneys, employees,
successors, or assigns, (hereinafter referred to as
“COMPANY”) from all claims or demands EMPLOYEE has, may
have, or may have had based on or in any way related to
EMPLOYEE’s employment with COMPANY, the resignation or
termination of that employment, or based on any previous act or
omission by or on behalf of COMPANY. EMPLOYEE further agrees to
waive any right EMPLOYEE may have with respect to the claims or
demands from which COMPANY is herewith released. This release and
waiver includes any rights or claims EMPLOYEE may have under, but
not limited to, the Age Discrimination in Employment Act, which
prohibits age discrimination in employment; Title VII of the Civil
Rights Acts of 1964, as amended, which prohibits discrimination in
employment based on race, color, national origin, religion or sex
(including claims of sexual harassment); 42 U.S.C. §1981,
which prohibits race discrimination; claims under the Family and
Medical Leave Act; the federal and Texas Equal Pay Acts, which
prohibit paying men and women unequal pay for equal work; the
Rehabilitation Act of 1973 and the Americans with Disabilities Act,
which prohibit
2
discrimination on the basis of handicap or
disability; the Employee Retirement Income Security Act; claims for
discrimination under the Texas Commission on Human Rights Act as
codified in the Texas Labor Code; claims for discrimination or
retaliation under the Texas Workers’ Compensation Act; or any
other federal, state or local laws or regulations prohibiting
employment discrimination, retaliation or harassment. This release
and waiver also includes any claims for wrongful discharge, whether
based on claimed violations of statutes, regulations or public
policy, or based on claims in contract or tort. This release and
waiver also includes any claims that EMPLOYEE suffered any harm by
or through the actions or omissions of COMPANY, including, but not
limited to, negligence claims and any other tort or contract
claims.
B. Scope
of Release/Non-release of Future Claims based on subsequent acts or
omissions: The release and waiver, to which EMPLOYEE voluntarily
agrees, covers all claims or demands based on any facts or events,
whether known or unknown by EMPLOYEE, that occurred on or before
June 30, 2007. EMPLOYEE fully understands that if any of the facts
or circumstances on which EMPLOYEE premises EMPLOYEE’s
execution of this release and waiver be found, suspected or claimed
hereafter to be other than or different from the facts and
circumstances now believed by EMPLOYEE to be true, EMPLOYEE
nonetheless expressly accepts and assumes the risk of such possible
differences in fact or circumstances and agrees that this release
and waiver shall be and remain effective notwithstanding any such
difference in any such fact or circumstances. COMPANY acknowledges
that EMPLOYEE has not released any rights or claims that EMPLOYEE
may have under the Age Discrimination in Employment Act that arise
after the date this release and waiver is executed.
C. No
Future Lawsuits, Complaints, or Claims: EMPLOYEE hereby waives
EMPLOYEE’s right to file any charge or complaint against
COMPANY arising out of EMPLOYEE’s employment with or
separation from employment before any federal, state or local court
or any federal, state or local administrative agency, except where
such waivers are prohibited by law. This Agreement, however, does
not prevent EMPLOYEE from filing a timely charge wi
