Exhibit 10.1 - Seperation Agreement between ICO and D. Phillips


     

    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 5333 Westheimer, Suite 600, Houston, Texas 77056
      (collectively, “Company”), and David J. Phillips, with a residence address of 34
      Constellation Wharf, Boston, Massachusetts 02129 (“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 Disabilities Act, 42 U.S.C. §12101, et
      seq.;
      the
      Worker Adjustment and Retraining Notification Act, 29 U.S.C. §2101,
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
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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
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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. Robert Parkey, Jr.
	
               /s/ David J. Phillips    

               David J. Phillips

            	 	
               Printed Name: W. Robert Parkey, Jr.  

               Title: President & CEO

            
	 	 	 
	 Date:         
              5/14/05        	 	 ICO Polymers North America, Inc.
	 	 	 By:     /s/ Jon C. Biro    
               Printed Name:   Jon C. Biro   
                

               Title: Senior V.P., Treasurer &
                CFO