Exhibit 10.40
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PARAGON TECHNOLOGIES, INC.
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this "Agreement") is made this 19th day of
February, 2007 by and between Xxxx Xxxxxxx, a resident of the Commonwealth of
Pennsylvania (the "Consultant"), and Paragon Technologies, Inc. (the "Company").
NOW, THEREFORE, in consideration of these premises and the mutual covenants
and obligations contained herein, and intending to be legally bound, the
parties, subject to the terms and conditions set forth herein, agree as follows:
1. Engagement; Services. The Company hereby engages the Consultant, and
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the Consultant hereby accepts such engagement, to provide consulting services to
the Company as and when requested by the Company's Board of Directors or CEO,
upon the terms and conditions set forth herein (the "Services").
2. Term. The term of the Consultant's engagement with the Company shall
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commence on April 1, 2007 (the "Effective Date") and shall continue for a period
ending on December 31, 2007 (the "Term"). At the end of the Term, this Agreement
shall automatically terminate and expire.
3. Compensation. In consideration for the Consultant making himself
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available to perform the Services, during the Term the Company shall (A) shall
pay to the Consultant an amount of $5,000 per month for making himself available
as an independent consultant ("Base Fee") plus (B) an amount equal to $800 for
each day that the Consultant provides consulting services hereunder ("Per Diem
Fee") (prorated for any time less than eight (8) hours that the Consultant
provides services on a particular day during the Term). The Base Fee shall be
paid on the fifteenth day of each month. The Consultant shall provide the
Company with an invoice for the Per Diem Fee on a monthly basis promptly
following the end of each month in which consulting services have been provided,
and the Company will pay the Per Diem Fee due to the Consultant within fifteen
(15) of its receipt of such invoice.
4. Reimbursement of Expenses. The Consultant shall be reimbursed for all
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normal and reasonable expenses incurred by him on behalf of the Company,
provided that such expenses are documented and submitted to the Company all in
accordance with the reimbursement policies of the Company as in effect from time
to time. The parties hereto acknowledge and agree that the Company will not
provide support services, including, but not limited to, office space and
secretarial services, to the Consultant in connection with the performance of
the Services.
5. Confidential Information.
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(a) The Consultant will at all times during the Term and at all
times thereafter, maintain the confidentiality of the Confidential Information
(as defined below), and will not, directly or indirectly, disclose any of the
Confidential Information to any person or entity, except as is strictly
necessary in the performance of the Services hereunder. In addition, the
Consultant will not at any time during the Term or at any time thereafter use
any of the Confidential Information for the Consultant's direct or indirect
benefit, or the direct or indirect benefit of any
person or entity other than the Company. The Consultant shall not publish or
disclose in any manner Confidential Information without the prior written
consent of the Company, which consent may or may not be given at the sole
discretion of the Company. Requests by the Consultant to publish or otherwise
disclose Confidential Information shall be made in writing to the President of
the Company according to the procedures described under Section 11 hereof.
(b) For purposes of this Agreement, the term "Confidential
Information" shall mean all business, marketing, technical, financial,
commercial and other information and data, without regard to form or medium,
relating to the Company that is not generally known to the public. However, any
information and data which becomes generally known to be public because of the
Consultant's failure to abide by this Agreement will still be considered
Confidential Information. By way of illustration, the Consultant hereby
acknowledges and agrees that Confidential Information includes, but is not
limited to, the following kinds of information and data: business plans;
research and development plans, methods, efforts and results; technology;
processes; inventions; know-how; computer codes and instructions; business or
market studies; business and product development plans and efforts; personnel
data; information relating to the Company's actual and prospective customers,
consultants, contractors and vendors and the nature and terms of the Company's
relationship with any of them, including pricing information; and any
information provided by or on behalf of any third party to the Company under any
obligation or expectancy of confidentiality. The fact that any information or
data is not marked as confidential or proprietary shall not adversely affect its
status as Confidential Information.
6. Property. Promptly upon the Company's request, and in any event
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promptly upon the termination of this Agreement, the Consultant hereby agrees to
return to the Company all materials and property of the Company in the
Consultant's possession, and the Consultant will not retain copies of any of
such materials and property.
7. Non-Solicitation. During the Term and for a period of one year
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thereafter, the Consultant will not, directly or indirectly, for himself or
herself or any third party other than the Company, do any one or more of the
following with the prior written consent of the Company:
(a) solicit, recruit or hire any person who is an employee of the
Company during the period of such person's employment and during the six month
period after the termination of such person's employment or induce or attempt to
induce any such person to terminate such person's employment;
(b) solicit sales from any of the Company's customers for any
product or service which competes with any product or service sold or provided
by the Company at any time during the three year period before the termination
of this Agreement or which, at the time of the termination of this Agreement,
is intended to be sold or provided by the Company, and about which the
Consultant had access to Confidential Information; and
(c) entice any vendor, consultant, collaborator, agent or
contractor of the Company to cease its business relationship with the Company.
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8. No Restrictions. The Consultant hereby represents and warrants that
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to the best of his knowledge he is permitted to enter into this Agreement and
perform the obligations contemplated hereby and that this Agreement and the
terms and obligations hereof are not inconsistent with any obligation he may
have.
9. Relationship of the Parties. The Consultant's engagement by the
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Company under this Agreement is strictly for the purposes and to the extent set
forth in this Agreement. The Consultant's relationship to the Company is solely
that of an independent contractor. The Consultant shall not be considered an
employee or agent of the Company under this Agreement or otherwise. The
Consultant acknowledges that as an independent contractor, except as expressly
provided herein, the Consultant will not be provided any benefits which the
Company provides to its employees, including but not limited to health insurance
or other health care benefits, sick leave, vacation or holiday leave.
10. Equitable Relief; Attorney's Fees. If the Consultant breaches or
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threatens to breach any provision of this Agreement, the Company will be
entitled, as a matter of right, to injunctive relief, including specific
performance, with respect to any such breach or threatened breach. If the
Company prevails in any action or proceeding brought to enforce this Agreement,
then the Company will be entitled to recover from the Consultant all reasonable
attorneys' fees, cost and disbursements incurred by the Company in connection
with such action or proceeding. The Company's rights and remedies under this
Section 10 are in addition to and cumulative with any other rights and remedies
to which the Company may be entitled.
11. Notices. Any notice hereunder by either party shall be given by
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personal delivery or by sending such notice by certified mail, return-receipt
requested, or telecopied, addressed or telecopied, as the case may be, to the
other party at its address set forth below or at such other address designated
by notice in the manner provided in this Section 11. Such notice shall be deemed
to have been received upon the date of actual delivery if personally delivered
or, in the case of mailing, two (2) days after deposit with the U.S. mail, or,
in the case of facsimile transmission, when confirmed by the facsimile machine
report.
(a) if to the Company, to:
Paragon Technologies, Inc.
000 Xxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Telefacsimile:
Attn: Chief Executive Officer
(b) if to the Consultant, to:
Xxxx Xxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx. XX 00000
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12. Entire Agreement; Amendments. This Agreement contains the entire
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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 between the parties hereto
relating to the engagement of the Consultant with the Company. No supplement,
modification or amendment of this Agreement shall be binding upon the Company or
the Consultant unless set forth in a written agreement executed by the Company
and the Consultant.
13. Section Headings. The section headings in this Agreement are for
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convenience only; they form no part of this Agreement and shall not affect its
interpretation.
14. Severability. Each party to this Agreement acknowledges that the
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obligations and restrictions contained in this Agreement are reasonable and
necessary to protect the legitimate interests of the other party and that such
obligations and restrictions constitute a material inducement to each party
entering into this Agreement. Each provision in this Agreement is an independent
provision and the enforceability of any one provision will not affect the
enforceability of any other provision. However, if any particular provision of
this Agreement is determined by a court to be excessively broad as to duration,
geographic scope, activity or subject to be enforceable, then that provision
will be deemed amended by limiting and reducing it so as to be valid and
enforceable to the maximum extent compatible with the laws of such jurisdiction.
15. No Waiver of Rights. Any waiver by either party to this Agreement of
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any power or right under this Agreement must be in writing and signed by such
party to be enforceable. Any waiver by either party to this Agreement will not
operate as a waiver of any other or future breach under this Agreement.
16. Assignment; Binding Obligation. This Agreement may not be assigned by
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either party without the prior written consent of the other party. This
Agreement will be binding upon and inure to the benefit of the Consultant and
the Consultant's heirs, executors and administrators and the Company and its
successors and permitted assigns.
17. Governing Law; Choice of Forum and Venue. This Agreement will be
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governed and construed as to its validity, interpretation and effect by the laws
of the Commonwealth of Pennsylvania notwithstanding the conflict of law rules of
Pennsylvania or any other jurisdiction. EACH PARTY TO THIS AGREEMENT ALSO HEREBY
IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO THE EXCLUSIVE JURISDICTION AND VENUE
OF THE STATE AND FEDERAL COURTS SERVING THE COUNTY IN PENNSYLVANIA IN WHICH THE
COMPANY MAINTAINS ITS PRINCIPAL OFFICE. However, each such party acknowledges
that the other party may seek enforcement of this Agreement in any appropriate
court and in any jurisdiction where such other party is subject to personal
jurisdiction and where venue is proper.
18. Survival. The obligations of the parties as set forth in paragraphs 5
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through 17 of this Agreement will survive the termination of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date written below.
PARAGON TECHNOLOGIES, INC.
By: /s/Xxxxxxxx X. Xxxxx
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Chairman of the Board
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
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