SEPARATION AGREEMENT AND MUTUAL RELEASE
This Separation Agreement and Mutual Release (this "AGREEMENT"), dated as
of August 10, 2007, is entered into by and between Patron Systems, Inc., a
Delaware corporation (the "COMPANY"), and Xxxxxx Waverley, an individual
("EXECUTIVE").
A. The Company and Executive entered into that certain Executive Employment
Agreement dated February 17, 2006 and amended January 24, 2007, June 13,
2007 and June 28, 2007 (the "EMPLOYMENT AGREEMENT"), pursuant to which the
Company employed Executive, as more fully described therein; and
B. Executive resigned his employment, and resigned as a member of the
Company's board of directors, effective on August 13, 2007.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Resignation; Termination of Employment Agreement. Notwithstanding
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anything to the contrary which may be contained in the Employment Agreement, the
parties hereby acknowledge and agree that, effective as of August 13, 2007:
1.1 Executive is no longer employed by the Company in any capacity;
1.2 The Employment Agreement is terminated and of no further force or
effect; and
1.3 Except as expressly provided herein, all responsibilities, duties
and obligations of Executive to the Company and of the Company to Executive
under the Employment Agreement shall be terminated and of no further force or
effect.
2. Consideration. As full and complete consideration for the covenants and
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agreements hereunder:
2.1 The Company hereby waives and releases executive from any and all
non-solicitation and non-competition restrictions set forth in Article 9 of the
Employment Agreement, and hereby covenants to take commercially reasonable
measures to ensure the continued effectiveness of the Company's existing
director and officer liability insurance policy (the "D&O POLICY") until the
statute of limitations for personal claims against Executive as an officer or
director of the Company shall have run, provided, however, that the measures
taken to ensure such continued effectiveness shall not violate the fiduciary
duties of the Company's officers and directors to the Company's creditors and
shareholders, and provided, further, that:
2.1.1 In the event the Company enters into a sale of all or
substantially all of its assets or a sale of the outstanding capital stock of
the Company for cash, the definitive agreement governing such asset sale or
stock purchase shall provide for the payment of the premiums for continued
coverage of the D&O Policy out of the proceeds from the asset sale or stock
purchase;
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2.1.2 The Company will further pay, or arrange for payment of, any
individual policy deductible expenses accruing to Executive that arise from any
liability sought to be covered under the D&O Policy; and
2.1.3 The Company agrees that it shall maintain under its charter
the current provisions for indemnification of officers and directors, including
former officers and directors, which include full indemnification and limitation
of liability to the full extent of the law. The Company further agrees that it
shall not modify, amend or terminate its charter to exclude or limit indemnities
for its former officers, directors and employees.
The Company further agrees that it shall repay, upon the execution of this
agreement by the parties hereto, all expenses incurred on behalf of the Company
by Executive through the date hereof in compliance with the Company's expense
reimbursement policies, including the reasonable legal fees incurred by
Executive in conjunction with this Agreement.
2.2 With full understanding of his rights under applicable law,
Executive hereby waives all severance payments and continuation of benefits set
forth in Section 4.1 of the Employment Agreement, hereby terminates and waives
all accrued but unused vacation or PTO days pursuant to the Company's vacation
policy as of the date hereof, and acknowledges and agrees that no such
obligations remain outstanding, and hereby forfeits all outstanding stock
options granted to Executive by the Company. Notwithstanding anything to the
contrary which may be contained in the Employment Agreement, Executive
acknowledges that the consideration set forth in Section 2.1 fully satisfies all
obligations of the Company to Executive under the Employment Agreement (whether
attributable to salary, bonus payments, vacation pay, expenses or other
amounts).
3. Additional Covenants of the Company and Executive.
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3.1 The Company hereby expressly covenants that it shall not object to
any of the following actions, including, without limitation, the use or
disclosure of any information related to the Company which is known by Executive
in connection with such actions, taken by Executive after the date hereof:
3.1.1 Executive's employment by any person who subsequently
purchases the Company's assets or stock;
3.1.2 Executive's submission of an offer to acquire the Company's
assets; and
3.1.3 Executive's engagement as a consultant to the Company's
creditors to aid in the sale of the Company or substantially all of its assets;
3.2 The Company shall take all necessary actions to ensure continuation
of Executive's health and dental benefits under COBRA, provided that Executive
shall pay all premiums in connection with such continued coverage.
3.3 The Company shall take all necessary actions to ensure the
expedient rollover of Executive's 401K funds to an investment retirement account
of Executive's choice.
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3.4 Neither party shall make any statement or allegation to any third
party, nor make any public announcement, press release or broad-tape release,
public speech or permit press interviews, which expressly or impliedly indicates
that the other party breached or defaulted under any obligation or commitment to
it, or which might reasonably have the effect of disparaging such other party or
injuring or harming the personal or business reputation of the other party.
3.5 Executive represents and agrees that, as of the date hereof, he has
turned over to the Company all files, memoranda, records and other documents,
and any other physical or personal property that are the property of the Company
that he had in his possession, custody or control (whether directly or
indirectly) on the date hereof.
4. Mutual Release.
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4.1 Executive's Release. Subject to Section 5, Executive, for himself
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and on behalf of his successors, assigns, agents, attorneys, representatives,
heirs, executors and administrators (collectively, the "EXECUTIVE PARTIES" and
individually, an "EXECUTIVE PARTY"), hereby releases and forever discharges and
agrees to hold harmless the Company and its successors, assigns, officers,
directors, shareholders, employees, affiliates, subsidiaries, parent
corporations, agents, attorneys and representatives, past and present
(collectively, the "COMPANY PARTIES" and individually, a "COMPANY PARTY") from
any and all demands, claims, duties, actions, obligations or causes of action,
assessments, losses, damages, liabilities, costs and expenses (including
attorneys' fees) of any kind, nature or description, whether known or unknown,
suspected or unsuspected, fixed or contingent (collectively, the "RELEASED
CLAIMS"), that Executive or any Executive Party currently has or possesses, or
had prior to the date of this Agreement or at any time may have against the
Company and/or against one or more Company Parties, arising out of, based upon
or in any way related to (i) the Employment Agreement or any other employment
agreement, or any other contracts, express or implied, any covenant of good
faith and fair dealing, express or implied, any theory of wrongful discharge,
negligence, negligent or intentional infliction of emotional distress, negligent
or intentional interference with contract or prospective economic advantage,
negligent or intentional misrepresentation, conspiracy, defamation (including
libel and slander), invasion of privacy, fraud, quantum meruit, failure to pay
compensation of any kind, failure to pay equal compensation for equal work or
any legal restriction on the Company's right to terminate employees; (ii)
Executive's employment with the Company or the cessation thereof, any claims for
wages, compensation of any kind, automobile allowance, vacation pay, severance
pay, bonuses or damages of any kind whatsoever, including without limitation all
claims for or under, among other things, Title VII of the Civil Rights Act of
1964, as amended (42 U.S.C. sections 2000e, et seq.), the Fair Labor Standards
Act, including the Equal Pay Act (29 U.S.C. section 206(d) and interpretive
regulations), the Employment Retirement Income Security Act of 1974 (29 U.S.C.
sections 100, et seq.), the Family and Medical Leave Act (29 U.S.C. sections
2601, et seq. and 29 C.F.R. Part 825), the Americans with Disabilities Act (42
U.S.C. sections 12101, et seq.), the Age Discrimination in Employment Act,
including the Older Worker Benefits Protection Act (29 U.S.C. sections 623, et
seq.), the Worker Adjustment and Retraining Notification Act (29 U.S.C. sections
2101, et seq.), the United States and Illinois Constitutions, and any other
federal or state law, whether statutory or common law; (iii) all matters arising
out of any common law or federal, state, local
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or other governmental statute, regulation, ordinance or wage order, including
any federal, state or local law (statutory or decisional) or regulation relating
to employment, employment discrimination or harassment; or (iv) arising out of
any principle of contract law or common law relating to Executive's employment.
4.2 The Company's Release. Subject to Section 5, the Company, for
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itself and on behalf of the Company Parties, hereby releases and forever
discharges and agrees to hold harmless the Executive and the Executive Parties
from any and all Released Claims that the Company or any Company Party currently
has or possesses, or had prior to the date of this Agreement or at any time may
have against the Executive and/or against one or more Executive Parties, arising
out of, based upon or in any way related to (i) the Employment Agreement or any
other employment agreement, or any other contracts, express or implied, any
covenant of good faith and fair dealing, express or implied, any theory of
negligence, negligent or intentional infliction of emotional distress, negligent
or intentional interference with contract or prospective economic advantage,
negligent or intentional misrepresentation, conspiracy, defamation (including
libel and slander), invasion of privacy and/or fraud; (ii) Executive's
employment with the Company or the cessation thereof, (iii) all matters arising
out of any common law or federal, state, local or other governmental statute,
regulation or ordinance; or (iv) arising out of any principle of contract law or
common law.
4.3 Claims not Released. The releases set forth in this Section 4
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shall not (i) release obligations incurred pursuant to this Agreement; (ii)
release claims in connection with events occurring after the date hereof; or
(iii) preclude any party hereto from enforcing its rights and remedies
hereunder.
4.4 Executive's Acknowledgement. Executive knowingly and voluntarily,
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of his own free will without any duress, being fully informed and after due
deliberation, accepts the terms of this Agreement, including without limitation,
the releases set forth in this Section 4, and signs the same as his own free
act. Executive understands that as a result of executing this Agreement,
Executive will not have the right to assert that the Company unlawfully
terminated his employment or violated any of his rights.
4.5 Third Parties Bound. Each party hereto shall cause each of its
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successors, assigns, agents, attorneys, representatives, heirs, executors,
administrators, officers, directors, shareholders, employees, affiliates,
subsidiaries, parent corporations, attorneys and representatives, as the case
may be, to be bound by this Agreement to the extent that it has the power to do
so.
5. Effective Date. Executive has been advised that he may take up to
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twenty-one (21) days to consider this Agreement, and he has knowingly waived
such requirement. Upon Executive's execution of this Agreement Executive will
have seven (7) days to revoke this Agreement. In the event of revocation,
Executive must present written notice of revocation to the Company. If seven
(7) days pass without such revocation, this Agreement will become binding and
effective on the eighth (8th) day after execution (the "EFFECTIVE DATE").
6. Mutual Representations and Warranties. Each of the Company and Executive
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(each, a "REPRESENTING PARTY") represents and warrants to the other that:
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6.1 The Representing Party has all necessary power and authority to
enter into this Agreement and has taken all action necessary to consummate the
transactions contemplated hereby and to perform each of their respective
obligations hereunder.
6.2 The Representing Party has duly executed and delivered this
Agreement, and this Agreement is a legal, valid and binding obligation of the
Representing Party, enforceable against the Representing Party in accordance
with its terms.
6.3 None of the execution, delivery or performance of this Agreement,
the consummation of the transactions contemplated hereby, nor compliance by such
Representing Party with any of the provisions hereof, will violate or conflict
with any agreement by which the Representing Party is bound, and that no notices
to, declaration, filing or registration with, approvals or consents of, or
assignments by, any persons or entities are necessary to be made or obtained by
the Representing Party in connection with the execution, delivery or performance
of this Agreement.
6.4 The Representing Party has not assigned or transferred, in whole or
in part, or purported to assign or transfer any claim or portion of claim
against the other party hereto which is covered by this Agreement which it may
now have or claim to have, of whatever kind or nature, either in its
representative or in its individual capacities, to any other person or entity in
any manner including, without limitation, assignment or transfer by subrogation
or by operation of law.
7. Severability. The parties hereto agree that if any term, provision,
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covenant or condition of this Agreement is found to be invalid, illegal or
unenforceable, then the parties hereto shall renegotiate such term, provision,
covenant or condition in good faith to effectuate its/their purpose and to
conform the provision(s) to applicable law to make such term valid, legal and
enforceable, or if such term, provision, covenant or condition may not be
amended or modified so as to become valid, legal and enforceable, then such
term, provision, covenant or condition shall be deemed excised from this
Agreement, and the remaining terms and conditions hereof shall remain in full
force and effect and shall in no way be impaired or invalidated thereby.
8. Successors and Assigns; Assignment. This Agreement shall inure to the
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benefit of, and shall be binding upon, the successors, heirs, and assigns of the
parties hereto. This Agreement may not be assigned by either party hereto
without the prior written consent of the other; provided, that the Company and
the Company Parties may assign this Agreement in whole or in part to any person
or entity which succeeds to all or a portion of such person's or entity's rights
(whereupon such assignor and assignee shall both benefit from this Agreement).
9. Third Party Beneficiaries. The parties hereto expressly agree that the
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Executive Parties and the Company Parties shall be third-party beneficiaries of
this Agreement.
10. Arbitration. In the event of a disagreement or dispute between the
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Company and Executive related to this Agreement, the matter will be finally
settled in Illinois, by expedited arbitration by a single arbitrator who is
licensed to practice law in a proceeding conducted under the expedited rules of
the American Arbitration Association's National Rules For The Resolution Of
Employment Disputes, or successor rules, the arbitrator also apportioning the
costs of the
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arbitration, including the fees of the arbitrator. The decision of the
arbitrator shall be in writing and shall be final and binding upon the parties
hereto and will not be subject to appeal. If either party hereto fails to abide
by such decision, the other may seek the order of a court which shall enter
judgment on the decision of the arbitrator, and the party hereto so failing to
abide shall be responsible for the payment of the expenses of the court
proceeding and all resulting enforcement expenses, including actual attorneys'
fees. The Company and Executive shall instruct the arbitrator that a written
decision is to be rendered within three (3) months of the appointment of the
arbitrator and any party hereto causing unreasonable delay shall be subject to
sanctions by the arbitrator.
11. Attorneys' Fees. If any party hereto brings any action in any forum to
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enforce or interpret any term of this Agreement, the non-prevailing party in any
such action shall pay all the reasonable attorneys' and arbitrator's fees,
expenses and costs incurred by the other in connection with any such action.
12. Governing Law. This Agreement and all matters arising hereunder or in
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connection herewith shall be governed by and construed in accordance with the
laws of the State of Illinois, without regard to conflicts of law principles.
13. Further Assurances. Upon the terms and subject to the conditions
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contained herein, the parties hereto agree (a) to use all reasonable efforts to
take, or cause to be taken, all actions and to do, or cause to be done, all
things necessary, proper or advisable to consummate and make effective the
transactions contemplated by this Agreement, (b) to execute any documents,
instruments or agreements of any kind which may be reasonably necessary or
advisable to carry out any of the transactions contemplated hereunder, and (c)
to cooperate with each other in connection with the foregoing.
14. Entire Agreement. This Agreement sets forth the entire understanding
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between the parties hereto and, supersedes any prior or contemporaneous written
or oral agreements or understandings pertaining to the terms hereof and the
termination of Executive's employment relationship with the Company. The
parties hereto agree that, except as expressly provided herein, any prior
agreements and understandings between them, whether oral or written, and of
whatever nature, are hereby cancelled, terminated and superseded by this
Agreement and shall be of no further force or effect. Executive acknowledges
that he has not relied upon any representation or statements by any
representative of the Company concerning the subject matter hereof except as
expressly set forth herein. This Agreement may only be modified by a writing
signed by each party hereto.
15. Non-Admission of Liability or Wrongdoing. By entering into this
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Agreement, neither party hereto admits any impropriety, illegality, wrongdoing
or liability of any kind whatsoever, and each party hereto hereby expressly
denies the same.
16. Tax Withholding. All amounts required to be paid by the Company
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pursuant to this Agreement shall be subject to reduction in order to comply with
applicable Federal, state and local tax withholding requirements.
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17. Notice. Any notice to be provided hereunder shall be in writing and
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shall be deemed to have been delivered (a) the day of delivery, if personally
delivered, (b) three (3) business days after having been mailed via U.S. mail,
registered or certified mail, return receipt requested, postage prepaid, or (c)
one (1) business day after having been sent by national reputable overnight
courier. Notices shall be addressed to the parties hereto at the addresses set
forth on the signature pages hereto. Any party hereto may change the address
for notices hereunder by delivery of written notice in accordance with the
provisions set forth herein.
18. Facsimile; Counterparts. This Agreement may be executed by facsimile
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and in counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument.
19. Headings. The headings of the sections contained in this Agreement are
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for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto hereby execute this Agreement as of the
date first above written.
PATRON SYSTEMS, INC.,
a Delaware corporation
/s/ Xxxxxx Waverley By: /s/ Xxxxxx Xxxxx
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Xxxxxx Waverley Name: Xxxxxx Xxxxx
Title: Chairman and Acting CEO
Address: Address:
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000 X. Xxxxxxx Xx. 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
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