Exhibit 10.39
-------------
SEPARATION AND MUTUAL RELEASE AGREEMENT
THIS SEPARATION AND MUTUAL RELEASE AGREEMENT (this "Agreement") is entered
into as of February 19, 2007 (the "Execution Date") by and between Xxxx Xxxxxxx
("Xxxxxxx") and Paragon Technologies, Inc. (the "Company").
WHEREAS, Xxxxxxx has been serving as President and Chief Executive Officer
of the Company as a full-time employee;
WHEREAS, Xxxxxxx desires to resign from his positions as a director,
officer and employee of the Company effective as of March 1, 2007 (the
"Termination Date"); and
WHEREAS, in appreciation of Xxxxxxx'x service to the Company and his
undertakings in this Agreement, the Company has agreed to provide
Xxxxxxx with certain rights and benefits, subject to the execution of this
Agreement.
NOW, THEREFORE, in consideration of these premises and the mutual promises
contained herein, and intending to be legally bound hereby, the parties agree
as follows:
1. Consideration; Acknowledgements; Cessation of Service.
-----------------------------------------------------
(a) Xxxxxxx hereby resigns all positions held with the Company as
a director, officer and employee effective as of the Termination Date.
(b) In consideration for Xxxxxxx entering into this Agreement and
provided that Xxxxxxx does not fail to comply with the terms of this Agreement,
Xxxxxxx shall continue to receive his regular salary and all employee benefits,
including monthly auto allowance and compensation for accrued unused vacation ,
for a period of one (1) month following the Termination Date, until March 31,
2007.
(c) Xxxxxxx acknowledges that: (i) Xxxxxxx has no entitlement
under any other severance or similar arrangement maintained by the Company or
any of its affiliates and (ii) except as otherwise provided specifically in this
Agreement, the Company has no other liability or obligation to Xxxxxxx. Xxxxxxx
further acknowledges that, in the absence of his execution of this Agreement,
the benefits specified above in Section 1(b) would not otherwise be due to him.
2. General Release.
---------------
(a) Xxxxxxx hereby fully and forever releases and discharges the
Company, and all predecessors and successors, assigns, stockholders, affiliates,
officers, directors, trustees, employees, agents and attorneys, past and present
(the Company and each such person or entity is referred to as a "Released
Person") from any and all claims, demands, liens, agreements, contracts,
covenants, actions, suits, causes of action, obligations, controversies, debts,
costs, expenses, damages, judgments, orders and liabilities, of whatever kind or
nature, direct or indirect, in law, equity or otherwise, whether known or
unknown, arising through the date of this Agreement, including, but not limited
to, any claims for relief or causes of action under any federal, state or local
statute, ordinance or regulation regarding discrimination in employment and any
claims, demands or actions based upon alleged wrongful or retaliatory discharge
or breach of contract under any state or federal law. The foregoing will not be
deemed to release the Company from (i) any obligation arising under this
Agreement or any other agreement executed on this day between Xxxxxxx and the
Company, (ii) claims solely to enforce this Agreement, or (iii) claims for
indemnification under the Company's Bylaws, if applicable. Xxxxxxx
understands that the release contained in this Section 2 extends to all of the
aforementioned claims and potential claims which arose on or before the date of
this Agreement, including pre- and post-employment causes of action, whether now
known or unknown, suspected or unsuspected, and that this constitutes an
essential term of this Agreement.
(b) The Company hereby fully and forever releases and discharges
the Xxxxxxx, and his heirs and assigns from any and all claims, demands, liens,
agreements, contracts, covenants, actions, suits, causes of action, obligations,
controversies, debts, costs, expenses, damages, judgments, orders and
liabilities, of whatever kind or nature, direct or indirect, in law, equity or
otherwise, whether known or unknown, arising through the date of this Agreement.
The foregoing will not be deemed to release Xxxxxxx from (i) any obligation
arising under this Agreement or (ii) claims solely to enforce this Agreement.
3. No Disruption. Xxxxxxx shall not attempt to disrupt the Company's
-------------
operations in any manner whatsoever. In particular, but without limitation,
Xxxxxxx will not disparage any Released Person or otherwise take any action
which could reasonably be expected to adversely affect the personal or
professional reputation of any Released Person.
4. Miscellaneous.
-------------
(a) No Reinstatement. Xxxxxxx waives any right to reinstatement to
----------------
employment with the Company. Xxxxxxx shall not take legal action of any kind as
a result of a refusal by the Company to consider him for employment or
reinstatement.
(b) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the Company and Xxxxxxx and their respective
successors, permitted assigns, executors, administrators and heirs. Xxxxxxx may
not make any assignment of this Agreement or any interest herein, by operation
of law or otherwise. The Company may assign this Agreement to any successor to
all or substantially all of its assets and business by means of liquidation,
dissolution, merger, consolidation, transfer of assets, or otherwise.
(c) Severability. Whenever possible, each provision of this
------------
Agreement will be interpreted in such manner as to be effective and valid under
applicable law. However, if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality
or unenforceability will not affect any other provision, and this Agreement
will be reformed, construed and enforced as though the invalid, illegal or
unenforceable provision had never been herein contained.
(d) Entire Agreement; Amendments. Except as otherwise provided
----------------------------
herein, this Agreement contains the entire agreement and understanding of the
parties hereto relating to the subject matter hereof, and merges and supersedes
all prior and contemporaneous discussions, agreements and understandings of
every nature. This Agreement may not be changed or modified, except by an
agreement in writing signed by each of the parties hereto.
(e) Governing Law. This Agreement shall be governed by, and
-------------
enforced in accordance with, the laws of the Commonwealth of Pennsylvania,
without regard to the application of the principles of conflicts of laws.
(f) Counterparts and Facsimiles. This Agreement may be executed,
---------------------------
including execution by facsimile signature, in multiple counterparts, each of
which shall be deemed an original, and all of which together shall be deemed
to be one and the same instrument.
-2-
[signature page follows]
-3-
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed by its duly authorized officer, and Xxxxxxx has executed this
Agreement, in each case on the date first above written.
PARAGON TECHNOLOGIES, INC.
By: /s/ Xxxxxxxx Xxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Chairman of the Board
/s/ Xxxx Xxxxxxx
-------------------------------------------------
XXXX XXXXXXX
-4-
