Exhibit 4.39
SEPARATION AGREEMENT
AND GENERAL RELEASE OF ALL CLAIMS
This Separation Agreement and General Release of all Claims
("Agreement") is made by and between Xx. Xxxxxx X. Xxxxxxxx ("Xx. Xxxxxxxx") on
the one hand, and Imaging Technologies, Inc. ("ITEC") on the other.
(Collectively, Xxxxxxxx and ITEC shall be referred to as "the Parties.")
1. Xx. Xxxxxxxx is currently an employee of ITEC. In accordance with
this Agreement with ITEC, his employment will terminate as of the Effective Date
of this Agreement as defined in Paragraph 10.
2. The parties desire to resolve any claims relating to Xx. Xxxxxxxx'x
separation from employment and therefore enter into this Agreement.
3. In consideration of and in return for the promises and releases
undertaken by ITEC and Xx. Xxxxxxxx in this Agreement, the Parties agree as
follows:
a. Except for the provisions of paragraph 3c, this Agreement is
neither enforceable nor effective until the Effective Date as
defined in paragraph 10.
b. ITEC has filed with the Securities and Exchange Commission
(the "SEC") a Registration statement on Form S-3 (the
"Registration Statement"). ITEC agrees to contact Xx. Xxxxxxxx
immediately upon receipt of the "Effectivity Letter" from the
SEC or actions or interactions on the part of the SEC to
indicate the effectivity of the Registration Statement. Within
three trading days after the effective date of this
Registration Statement, ITEC shall issue to Xx. Xxxxxxxx
500,000 fully registered shares of ITEC common stock.
c. Xx. Xxxxxxxx will use his reasonable efforts to collect the
debts from the companies listed on Exhibit 1 to this Agreement
that are indebted to ITEC. ITEC agrees to use its best efforts
to assist Xx. Xxxxxxxx in collecting the debts listed on
Exhibit 1. Xx. Xxxxxxxx shall have until December 31, 1999 to
make initial contact with the companies listed on Exhibit 1.
Xx. Xxxxxxxx shall have until December 31, 1999 to make
initial contact with the companies listed on Exhibit 1. If Xx.
Xxxxxxxx has made contact with said companies then any monies
paid by said companies to ITEC after this Agreement's
Effective Date shall be divided evenly between Xx. Xxxxxxxx
and ITEC. The parties hereby confirm that any monies paid to
Xx. Xxxxxxxx in accordance with this paragraph 3c are in
consideration for his efforts in collecting the monies owed to
ITEC by the companies listed on Exhibit 1.
d. Assuming Xx. Xxxxxxxx elects COBRA continuation coverage, ITEC
will pay all applicable premiums for Xx. Xxxxxxxx to continue
receiving medical, dental and vision insurance provided to
current employees, through COBRA continuation coverage, for 18
months from the Effective Date of this Agreement or until such
time as Xx. Xxxxxxxx is covered under the medical insurance
plan of another employer, whichever occurs first. Xx. Xxxxxxxx
shall be responsible for his own medical, dental and vision
insurance payments under COBRA or otherwise after that time.
e. ITEC represents that Xx. Xxxxxxxx was a named insured in
ITEC's current insurance policy for officers' and directors'
coverage. ITEC agrees that it will inform Xx. Xxxxxxxx
concerning any litigation against the Company that names Xx.
Xxxxxxxx as a defendant.
f. Xx. Xxxxxxxx waives the right to receive his unpaid salary
from ITEC as well as payment for any accrued but unused
vacation.
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g. Except for any rights or claims created by or contained in
this Agreement, Xx. Xxxxxxxx does hereby release ITEC and
ITEC's parents, subsidiaries, related companies and business
concerns, past and present, and each of them, as well as each
of their partners, trustees, directors, officers, agents,
attorneys, servants and employees, past and present, and each
of them (collectively referred to as "Releasees") from any and
all claims, demands, warranties, debts, obligations,
liabilities, costs, expenses, rights of action, and causes of
action of any kind or character whatsoever, whether known or
unknown, suspected or unsuspected, arising prior to the date
of this Agreement. Xx. Xxxxxxxx specifically releases the
Releasees from any claim for attorneys' fees. XX. XXXXXXXX
ALSO SPECIFICALLY AGREES AND ACKNOWLEDGES XX. XXXXXXXX IS
WAIVING ANY RIGHT TO RECOVERY BASED ON STATE OR FEDERAL AGE,
SEX, PREGNANCY, RACE, COLOR, NATIONAL ORIGIN, MARITAL STATUS,
RELIGION, VETERAN STATUS, DISABILITY, SEXUAL ORIENTATION,
MEDICAL CONDITION OR OTHER ANTI- DISCRIMINATION LAWS,
INCLUDING, WITHOUT LIMITATION, TITLE VII, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, THE AMERICANS WITH
DISABILITIES ACT, THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING
ACT AND THE EMPLOYEE RETIREMENT INCOME SECURITY ACT, ALL AS
AMENDED, WHETHER SUCH CLAIM BE BASED UPON AN ACTION FILED BY
XX. XXXXXXXX OR BY A GOVERNMENTAL AGENCY.
h. Except for any rights or claims created by or contained in
this Agreement, ITEC and ITEC's parents, subsidiaries, related
companies and business concerns, past and present, and each of
them, as well as each of their partners, trustees, directors,
officers, attorneys, past and present, and each of them
(collectively referred to as "Releasors") do hereby release
Xx. Xxxxxxxx from all claims, demands, warranties, debts,
obligations, liabilities, costs, expenses, rights of action,
and causes of action, whether known or unknown, suspected or
unsuspected, arising prior to the date of this Agreement. ITEC
and the Releasors specifically release Xx.
Xxxxxxxx from any claim for attorneys' fees.
i. Xx. Xxxxxxxx and ITEC, and the Releasors, and each of them,
understand and agree that as to all of the claims released in
this Agreement, the release when effective includes all claims
of every nature and kind whatsoever, known or unknown,
suspected or unsuspected, except as expressly provided in this
Agreement, and that all rights, if any, that any party may
have under California Civil Code section 1542 are expressly
waived. Section 1542 provides as follows:
"A general release does not extend to claims which
the creditor does not know or suspect to exist in his
favor at the time of executing the release, which is
known by him must have materially affected his
settlement with the debtor."
Xx. Xxxxxxxx, ITEC, and the Releasors acknowledge that they may discover facts
different from, or in addition to, those which they know or believe to be true
with respect to the claims released in this Agreement and agree that the
Agreement and the releases contained in it shall be and remain effective in all
respects notwithstanding such different or additional facts or the discovery of
them.
4. If any provision of this Agreement or application thereof is held
invalid, the invalidity shall not affect other provisions or applications of the
Agreement which can be given effect without the invalid provision or
application. To this end, the provisions of this Agreement are severable.
5. This Agreement and all covenants and releases set forth in this
Agreement shall be binding upon and shall inure to the benefit of the respective
Parties, their legal successors, heirs, assigns, partners,
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representatives, parent companies, subsidiary companies, agents, attorneys,
officers, employees, directors and shareholders.
6. The Parties acknowledge each has read this Agreement, that each
fully understands its rights, privileges and duties under the Agreement, and
that each enters this Agreement freely and voluntarily. Each Party further
acknowledges each has had the opportunity to consult with an attorney of its
choice to explain the terms of this Agreement and the consequences for signing
it.
7. The Parties each acknowledge and represent that no promise or
representation not contained in this Agreement has been made to them and
acknowledge and represent that this Agreement contains the entire understanding
between the parties and contains all terms and conditions pertaining to the
compromise and settlement of the subjects referenced in this Agreement.
8. ITEC hereby advises Xx. Xxxxxxxx in writing to discuss this
Agreement with an attorney before executing it. Xx. Xxxxxxxx acknowledges ITEC
has provided him at least 21 days within which to review and consider this
Agreement before signing it. Should Xx. Xxxxxxxx decide not to use the full 21
days, then Xx. Xxxxxxxx knowingly and voluntarily waives any claims that he was
not in fact given that period of time or did not use the entire 21 days to
consult an attorney and/or consider this Agreement.
9. The Parties acknowledge and agree that Xx. Xxxxxxxx may revoke this
Agreement for up to seven calendar days following Xx. Xxxxxxxx'x execution of
this Agreement and that it shall not become unenforceable until the revocation
period has expired. The Parties further acknowledge and agree that such
revocation must be in writing addressed to Xxxxxxx Xxxxxxx, Esq., Imaging
Technologies, Inc. 00000 Xxx Xxxxxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000 and received
by Xx. Xxxxxxx not later than midnight on the seventh day following execution of
this Agreement by Xx. Xxxxxxxx.
10. If Xx. Xxxxxxxx does not revoke this Agreement in the time frame
specified in Paragraph 9 above, the Agreement shall become effective at 12:00
a.m. on the 8th day after it is signed by Xx. Xxxxxxxx (the "Effective Date").
11. This Agreement shall be construed in accordance with, and be deemed
governed by, the laws of the State of California.
12. This Agreement may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original and such counterparts
shall together constitute one and the same agreement.
13. ITEC is executing this Agreement for itself and on behalf of all
other Releasees and Releasors.
14. The signatories to this Agreement who are executing this Agreement
in a representative capacity specifically represent that they are authorized to
do so.
I have read the foregoing Separation Agreement and General Release of
All Claims and I accept and agree to the provisions contained in this Agreement
and hereby execute it voluntarily and with full understanding of its
consequences.
Dated: June 10, 1999 /s/ Xxxxxx X. Xxxxxxxx
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Xx. Xxxxxx X. Xxxxxxxx
Dated: June 10, 1999 Imaging Technologies, Inc.
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
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