EMPLOYMENT AGREEMENT
EXECUTION
COPY
This
Employment Agreement (the "Agreement") is entered into by and between THE WAAT
CORPORATION., a corporation organized under the laws of California with
its
principal offices located at 00000 Xxxxxxx Xxxxxxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx
00000
(the "Company, which shall include any parent or holding company") and Xxxxx
Xxxxxxx
("Employee"), as of June 5, 2006 ("Effective Date").
I. EMPLOYMENT.
The
Company hereby employs Employee and Employee hereby accepts such employment,
upon the terms and conditions hereinafter set forth, from
June
5, 2006 ("Employment
Date"), to and including June 30, 2009 (the "Term"). This
Agreement is subject
to renewal only as set forth in Section VI below. In the event the Agreement
is
renewed
pursuant to Section VI below, reference to the Term in this Agreement shall
also
refer
to
such renewal term.
II. DUTIES.
A.
Employee
shall serve during the course of his employment as Executive Vice
President, General Counsel and Corporate Secretary of the Company and shall
have
such
other duties and responsibilities as are consistent with those generally
performed by
the
Executive Vice President, General Counsel and Corporate Secretary of
a
similarly situated
company as the Chief Executive Officer of the Company shall determine from
time
to time, including the authority to hire and fire appropriate legal and
administrative staff
personnel. The Company shall provide Employee with all reasonable and necessary
business
equipment to allow Employee to perform such duties and responsibilities.
The
Company
retains absolute discretion to reorganize the Company from time to time and
that
nothing in this Agreement shall in any way affect or limit such discretion;
provided that,
such reorganization shall not serve to diminish
or otherwise materially alter Employee's
position as Executive Vice President, General
Counsel and Corporate Secretary
after any such reorganization.
B.
Employee
agrees to devote substantially all of his time, energy and
ability
to
the
business of the Company. Nothing herein shall prevent Employee, upon approval
of
the Board of Directors of the Company, from serving as a director or trustee
of
other corporations
or businesses which are not in direct competition with the business of
the
Company or in direct competition with any present
or future affiliate
of
the
Company; provided,
however, that no approval of the Board of Directors of the Company shall be
required
for Employee to continue to serve as a director of any company of which he
was
a
director as of the Effective Date so long as
such
company is not in direct competition with
the
Company. Nothing herein shall prevent Employee from (i) investing
in real estate
for his own account, (ii) becoming a partner or a stockholder in any
corporation, partnership
or other venture not in direct competition with the business of the Company
or
in direct competition with any present affiliate of the Company, or (iii)
becoming up to
a 5%
stockholder in any publicly held corporation whether or not in competition
with
the
business of the Company or in competition with any present or future affiliate
of the Company.
1
EXECUTION
COPY
C.
For
the Term of this Agreement, Employee shall report to the Chief Executive Officer
of the Company and serve as a member of the Company's core executive team,
regardless of any reorganization of the Company.
III.
COMPENSATION.
A.
The
Company will pay to Employee a base salary at the annual rate of $300,000
from June 5, 2006 through June 4, 2007, $315,000 from June 5, 2007 through
June
4,
2008 and $330,750 from June 5, 2008 through June 30, 2009. Such
salary shall be
earned
monthly and shall be payable in periodic installments no less frequently than
monthly
in accordance with the Company's customary practices. Amounts
payable shall be
reduced by standard withholding and other authorized deductions. The Company
may
in
its
discretion increase Employee's salary beyond these set amounts but
it
may not reduce it during the Term or any extension thereof.
B.
Annual
Bonus. Employee
shall be paid an annual bonus (the "Bonus") at the
Company's sole discretion based upon Employee's performance and the performance
of
the
Company with a target Bonus of thirty-five percent (35%) of the then-current
base salary,
such Bonus to be determined and paid on the Company's fiscal year basis to
the
extent
and in such manner as determined with such other comparable senior executives
of
the
Company.
C.
Welfare
Benefit Plans. Employee
and/or his family, as the case may be, shall be eligible for participation
in
and shall receive all benefits under welfare benefit
plans,
practices, policies and programs provided by the Company (including,
without
limitation,
medical, prescription, dental, vision, disability, salary continuance,
employee
life,
group life, accidental death, travel accident insurance plans and programs
and
401K Plan)
to
the extent applicable generally to other comparable senior executives of the
Company.
D.
Expenses.
Employee
shall be entitled to receive prompt reimbursement for
all
reasonable employment expenses incurred by him in accordance with the policies,
practices
and procedures as in effect generally with respect to other comparable
senior
executives of the Company.
E.
Fringe
Benefits.
Employee
shall be entitled to fringe benefits
in accordance
with the plans, practices, programs and policies as in effect generally
with
respect
to other comparable senior executives of the Company.
F.
Vacation.
Employee
shall be entitled to four (4) weeks paid vacation each year
which shall be taken in accordance with the policies and practices as
in
effect generally
with respect to other comparable senior executives of the Company.
2
EXECUTION
COPY
G.
Stock
Options. The
Company shall
grant
to
Employee on June 5, 2006 ("First Issue Date"), subject to Compensation Committee
approval
and the vesting provisions
described in this Agreement, nonqualified stock options (the "Options")
under
the
Company's 2006 Stock Incentive Plan, as amended (the "Plan"), to acquire seventy
five
thousand (75,000) shares of the Company's Common Stock ("Common Shares") at
the
exercise price per Common Share under each such Option of Thirty Five
Cents ($0.35).
The Company shall grant to Employee on June 5, 2007 ("Second Issue Date")
an
additional seventy five thousand (75,000) shares of the Company's Common Shares
at the
exercise price per Common Share under each such Option determined at the time
of
grant
and
no greater than the Series B financing purchase price. Each
Option shall represent
the right to acquire one (1) Common Share. Subject to earlier termination of
the
Options
as described below, the Options shall vest in full and become immediately
exercisable
as follows: (a) twenty five percent (25%) on the first anniversary of the First
Issue
Date and the remaining seventy five percent (75%) in equal quarterly
installments over the three (3) year period following the first anniversary
of
the First Issue Date
and
(b)
twenty five percent (25%) on the first anniversary of the Second Issue Date
and
the
remaining
seventy five percent (75%) in equal quarterly installments over the three
(3)
year
period following the first anniversary of the Second Issue Date. The
Options shall expire
on
the first to occur of (i) the close of business on the last business day
of
the
Company
coinciding with or immediately preceding the day before the tenth anniversary
of
the
Effective Date, (ii) the termination of the Options pursuant to the Plan, or
(iii) the
termination
of the Options in connection with a termination of Employee's employment
with
the
Company as contemplated by the Option Agreement. The
Options shall be evidenced
by a written option agreement in the form attached hereto as
Exhibit
A
(the "Option
Agreement"). In
addition to any provision contained in the Plan and/or the Option
Agreement, all Options are subject to full accelerated vesting upon
an
underwritten
initial public offering of the securities of the Company and/or a Change
of
Control
of the Company. At
the
Company's sole discretion, to the extent other
comparable
executives of the Company are granted additional Options, Employee shall
be
granted additional Options.
H.
The
Company reserves the right to modify, suspend or discontinue any and
all
of the plans, practices, policies and programs described in Sections III-C,
III-D,
and
III-E
above at any time without recourse by Employee so long as such action is taken
generally
with respect to other comparable senior executives, is not applied
retroactively, and does not single out Employee. Notwithstanding such right,
in
the event the Company ceases to provide medical insurance, the Company
shall
reimburse Employee for premiums
paid for COBRA continuation of medical insurance during the Term and any
renewal.
IV.
TERMINATION.
A.
Death or Disability. Employee's
employment
shall
terminate
automatically
upon Employee's death. If
a
Disability of Employee has occurred (pursuant to the definition of Disability
set forth below), the Company
may give to Employee
written notice of its intention to terminate Employee's employment. In
such
event,
Employee's employment with the Company shall terminate effective on the
120th
day
after receipt of such notice by Employee, provided that, within the 120
days
after such
receipt, Employee shall not have returned to full-time performance of
his
duties. For
purposes of this Agreement, "Disability" shall mean either a physical
or
mental
impairment which substantially limits a major life activity of
Employee and which renders Employee unable to perform the essential functions
of
his position, even with reasonable accommodation which does not impose an undue
hardship on the Company for
an
aggregate of 120 days in any twelve-month period. The determination of
Disability
under the preceding sentence, shall be based upon information supplied
by
Employee
and/or his medical personnel, as
well
as
information from medical personnel (or
others) selected by the Company. In
the
event Employee's health care provider and the Company do not agree as
to
whether Employee has a Disability, Employee and the Company shall appoint a
third-party qualified physician who shall evaluate Employee
and
provide a determination of whether Employee has a
Disability.
3
EXECUTION
COPY
B.
Cause. The
Company may terminate Employee's employment
for "Cause" in the event the Employee has engaged in or committed: willful
misconduct;
gross
negligence; theft, or fraud; any
willful act that is reasonably likely to and which does
in
fact have the effect of materially injuring the reputation, business or a
business relationship
of the Company; and material breach of any material term of this Agreement.
In the event the Company determines that Cause for termination exists based
upon
willful misconduct or gross negligence, the Company shall give Employee fourteen
(14)
days
prior written notice of such termination which notice shall include reasonable
detail
as
to the ground for such termination. If such ground is curable, Employee shall
be
given
thirty (30) days from the date of such notice to cure such ground for
termination for Cause.
After the expiration of any such cure period, the
Company shall make a good faith
determination as to
whether Employee has cured such ground for termination for Cause
and
shall give written notice thereof to the Employee which, in
the
case of a determination
that Employee has failed to cure, shall include reasonable detail as
to
why
Employee's
efforts to cure were not adequate. Notwithstanding
anything to the contrary set
forth
in this Section IV-B, the Company shall not have the right to terminate
the
Employee
for "Cause" after the expiration of six (6) months from discovery
by the Company
of the conduct or circumstances that are the basis for such
termination.
C.
Good
Reason.
Employee
may terminate employment for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean any of the following: (i)
the
Company
requires Employee to relocate his principal office more than 25 miles from
the
Company's
current principal place of business without Employee's consent;
(ii) the Company
assigns Employee to a position other than Executive Vice President, General
Counsel
and Corporate Secretary of the Company without Employee's consent; (iii) the
Company
requires Employee to report directly to any officer other than Xxx Xxxxx, Chief
Executive
Officer, without Employee's consent; (iv) Xxx Xxxxx is no longer the
Chief
Executive
Officer of the Company (v) the Company substantially diminishes Employee's
duties or responsibilities; and/or (vi) the Company fails to pay any amounts
owed to Employee
when due or otherwise materially breaches any material term of this Agreement.
Before terminating his employment with Good Reason under subsections (i)
-
(vi),
Employee
shall give the Company written notice of his intent to terminate for
Good
Reason and the basis therefore, and the Company shall have thirty (30) days
to
cure (the "Cure Period") the Good Reason. At the end the Cure Period, Employee
shall determine
in good faith determination as to whether the Company has cured such Good
Reason.
If Employee determines that the Company has failed to cure
the
Good Reason within the Cure Period, Employee may terminate his employment and
this Agreement upon an additional ten (10) days' written notice which notice
shall include reasonable
detail
as
to why the Company's efforts
to
cure
such Good Reason were inadequate. For
all
purposes under this Agreement, any termination by Employee with Good Reason
shall be treated as a termination without Cause and Employee shall be entitled
to the payments and benefits set forth in Section IV-E-3 pursuant to its
terms.
4
EXECUTION
COPY
D.
Other
than Cause or Death or Disability. The
Company may terminate Employee's
employment at any time, with or without cause, upon ninety (90)
days' written
notice.
E. Obligations
of the Company Upon Termination.
1.
Death
or Disability. If
Employee's employment is terminated by reason
of
Employee's Death or Disability, this Agreement shall terminate without
further obligations to Employee or his legal representatives under this
Agreement (except as provided in this Section IV-E-1), other than for
(a)
payment of the sum of (i) Employee's annual base salary through the date
of
termination to the extent not theretofore paid, (ii) Employee's pro rata
portion of the Bonus (based on the number of days elapsed prior to termination)
for the calendar year during which the Employee's Death or Disability
occurs, and (iii) any compensation previously
deferred by Employee
(together with any accrued interest or earnings thereon) and any accrued
vacation pay, in each case to the extent not theretofore paid (the sum of the
amounts described in clauses (i), (ii), and (iii) shall be hereinafter
referred to as
the
"Accrued Obligations"), which shall be paid to
Employee or his estate or beneficiary, as applicable, in a lump sum in
cash
within thirty (30) days of the date of termination; (b) payment to Employee
or his estate or beneficiary, as applicable, any amounts due
pursuant
to the terms of any applicable welfare benefit plans, and (c) to the
extent
termination is due to Disability, until the earlier of the end of such
Disability
and June 30, 2009 (or the end of the renewal, if any), continued participation
in medical, dental, hospitalization and
life
insurance coverage
and in all other plans and programs in which Employee was participating
(on the same basis he was participating) on the date
of
termination.
Upon a termination as a result of Death or Disability, the
Options,
and any other options granted to Employee by the Company during
his employment, to the extent outstanding and not previously
vested
at
the time of such termination, shall thereupon vest in full and shall
continue to be exercisable for a period of three (3) years after such
termination.
2. Cause. If
Employee's employment is terminated by the Company for
Cause, this Agreement shall terminate without further obligations to Employee
other than for the timely payment of Accrued Obligations. If
it
is
subsequently determined that the Company did not have Cause for
termination
under Section IV-B, then the Company's decision to terminate shall
be
deemed to have been a determination by the Company that
Employee's
services are no longer needed or desired under Section IV-D and
the
amounts payable under Section IV-E-3 shall be the only amounts Employee
may receive thereunder.
5
EXECUTION
COPY
3.
Other
than Cause or Death or Disability. If
the
Company terminates
Employee's employment for other than Cause or Death or
Disability,
or if Employee terminates his employment with Company for Good
Reason, this Agreement shall terminate without further obligations to
Employee (except as provided in this Section IV-E-3) other than for (a)
the
immediate payment of Accrued Obligations; (b) upon Employee's execution,
and non-revocation, of a release substantially in
the
form
attached
hereto as Exhibit B, immediate lump sum payment to Employee of
a sum
equal to the balance of base salary payments for
all
remaining years
of
this Agreement and Bonus had Employee remained employed through the end of
the
Term or renewal, less standard withholdings and other
authorized deductions; and (c) reimbursement to Employee of all premiums
paid for COBRA continuation of medical insurance until the earlier of (i)
Employee becomes eligible for group medical insurance with another
employer or (ii) twelve (12) months.
Furthermore,
if the Company
terminates Employee's employment for other than Cause, Death or
Disability, or if Employee terminates his employment with Company for Good
Reason, the Options, and any other options granted to Employee by the Company
during his employment, to the extent outstanding and not previously
vested at the time of such termination, shall thereupon vest in full
and
shall continue to be exercisable for a period of three (3) years after
such
termination.
4.
Termination
By Employee
Other than for Good Reason. Employee
may terminate his employment with Company upon 30 days' written
notice for any reason other than Good Reason, Death or Disability. For
all
purposes under this Agreement, any such termination by Employee shall
be
treated as a termination for Cause.
5.
Exclusive
Remedy; No Mitigation.
Employee
agrees that the payments contemplated by this Agreement shall constitute the
exclusive and
sole
remedy for any termination of his employment and Employee covenants
not to assert or pursue any other remedies, at law or in equity, with
respect to any termination of employment. The
Company agrees that the
payments contemplated by the Agreement shall not be reduced by any compensation
Employee may receive as a result of employment by any other
person or entity after the termination of his employment.
6
EXECUTION
COPY
V.
ARBITRATION.
Any
controversy arising out of or relating to this Agreement, its enforcement or
interpretation,
or because of an alleged
breach, default, or
misrepresentation in connection
with any of its provisions, or any other controversy arising out of Employee's
employment,
including, but not limited to, any state or federal statutory claims,
shall
be
submitted
to arbitration in Los Angeles, California, before a sole arbitrator selected
from
the
American Arbitration Association ("AAA"),
and shall be conducted in accordance with
the
AAA rules for the resolution of Employment Disputes as the exclusive forum
for
the
resolution of such dispute; provided, however, that provisional injunctive
relief may, but
need
not, be sought by either party to this Agreement in a court of
law
while arbitration
proceedings are pending, and any provisional injunctive relief granted by
such
court
shall remain effective until otherwise modified by the Arbitrator; provided,
however,
that such provisional injunctive relief shall be sought in aid and in advance
of
the
arbitration only. Final resolution of any dispute through arbitration may
include any
remedy
or
relief which the Arbitrator deems just and equitable, including
any and all remedies provided by applicable state or federal statutes. At the
conclusion of the arbitration,
the Arbitrator shall issue a written decision that sets forth the essential
findings
and conclusions upon which the Arbitrator's award or decision is based.
Any
award
or
relief granted by the Arbitrator hereunder shall be final and binding
on the parties
hereto and may be enforced by any court of competent jurisdiction. The
parties acknowledge
and agree that they are hereby waiving any rights to trial by
jury
in
any
action,
proceeding or counterclaim brought by either of the parties against the other
in
connection
with any matter whatsoever arising out of or in any way connected with this
Agreement
or Employee's employment. Employee
and Company agree that in any proceeding
to enforce the terms of this Agreement, the prevailing party shall be
entitled to
its or
his reasonable attorneys' fees and costs (including forum costs associated
with
the
arbitration) incurred by it or him in connection with resolution of the dispute
in addition
to any other relief granted.
VI.
RENEWAL.
This
Agreement shall automatically renew for one additional term of three
(3)
years,
commencing July 1, 2009, unless either Employee or the Company gives the other
written notice on or before April 1, 2009), of an intent not to renew.
If
this
Agreement is to
renew,
Employee and the Company shall meet in good faith to discuss the terms of the
renewal
prior to May 1, 2009 to negotiate new terms related to, among other things,
base
salary, bonus percentage and additional grants of stock options.
In
the
event the Company
notifies Employee in writing of its election not to renew, this Agreement shall
expire
and terminate on June 30, 2009 and the Company shall pay Employee a lump sum
payment equal to six (6) months of Employee's then-current base
salary and shall reimburse Employee for all premiums paid for COBRA continuation
of medical insurance
for a period not to exceed six (6) months. Furthermore,
if the Company elects not
to
renew, the Options, and any other options granted to Employee by the Company
during
his employment, to the extent outstanding and not previously vested at the
time
of such notice of non-renewal, shall thereupon vest
in
full and shall continue to be exercisable
for a period of three (3) years after such notice of non-renewal. In
the
event Employee notifies the Company of his election not to renew, this Agreement
shall expire and
terminate on June 30, 2009, and such termination shall be treated for all
purposes
under
this Agreement as a termination by Employee without Good
Reason.
7
EXECUTION
COPY
VII.
ANTISOLICITATION.
Employee
promises and agrees that during the term of this Agreement or renewal
in
accordance with Section VI above, and for a period of twelve (12) months
thereafter, he
will
not influence or attempt to influence any mobile telecommunications operator
which
distributes the Company's programming, games and services to cease distribution
of
the
Company's programming, games and services with its subscribers and replace
it
with
similar services of any direct competitor with the business of the
Company.
IX.
SOLICITING
EMPLOYEES.
Employee
promises and agrees that he will not, during the term of this Agreement
and
for a
period of twelve (12) months following termination of his employment or the
expiration
of this Agreement or renewal in accordance with Section VI above, directly
or
indirectly
solicit any of the Company employees who earned annually $50,000 or more as
a
Company
employee during the last six months of his or her own employment to work
for
any
business, individual, partnership, firm, corporation, or other entity then
in
direct
competition
with the business of the Company or any subsidiary of the Company. For
the
purposes of this provision, "indirectly solicit" shall mean that Employee has
provided name(s)
or other identifying information to aid in the solicitation of such
person.
X.
CONFIDENTIAL
INFORMATION.
A.
Employee,
in the performance of Employee's duties on behalf of the Company,
shall have access to, receive and be entrusted with confidential information,
including
but in no way limited to development, marketing, organizational, financial,
management, administrative, production, distribution and
sales
information, data, specifications
and processes presently owned or at any time in the future developed,
by
the
Company or its agents or consultants, or used presently or at any time in the
future in the
course of its business that is not otherwise part of the public domain
(collectively, the "Confidential
Material"). All such Confidential Material is considered secret and will
be
available
to Employee in confidence. Except
in
the performance of duties on behalf of the
Company, Employee shall not, directly or indirectly for any reason whatsoever,
disclose
or use any such Confidential Material, unless such Confidential Material
ceases
(through
no fault of Employee's) to be confidential because it has become part
of
the
public domain. All
records, files, drawings, documents, equipment and other tangible items,
wherever located, relating in any way to the Confidential Material or otherwise
to the
Company's business, which Employee prepares, uses or encounters, shall
be
and
remain
the Company's sole and exclusive property and
shall
be included in the Confidential Material. Upon termination of this Agreement
by
any means, or whenever requested
by the Company, Employee shall promptly deliver to the Company any and all
of
the
Confidential Material, not previously delivered to the Company, that may be
or
at any
previous time has been in Employee's possession or under Employee's
control, provided however, that
Employee may retain in his possession any Confidential Material that
reflects the terms of his employment with the Company or the terms or amount
of
his compensation
and benefits.
8
EXECUTION
COPY
XI.
INDEMNIFICATION. To
the
maximum extent permitted by applicable law, Company
shall indemnify Employee and hold Employee harmless from and against
any and
all
claims, liabilities, judgments fines, penalties, costs and expenses (including,
without limitation, reasonable attorneys' fees, costs of investigation and
experts,
settlements
and other amounts actually incurred by Employee in
connection with the defense
of any action, suit or proceeding, and in connection with any appeal
thereon)
incurred
by Employee in any and all threatened, pending or completed actions,
suits
or
proceedings,
whether civil, criminal administrative or investigative (including,
without limitation,
actions, suits or proceedings brought by or in the name of Company) arising,
directly
or indirectly, by reason of Employee's status, action or inaction as a director,
officer,
employee or agent of Company or of an affiliate of Company. The Company
shall
promptly advance to Employee upon request any and all expenses incurred by
Employee in defending any and all such actions, suits or proceedings to the
maximum extent permitted by law.
XII.
SUCCESSORS.
A. This
Agreement is personal to Employee and shall not, without the prior written
consent of the Company, be assignable by Employee.
B.
This
Agreement may not
be
assigned by the Company without Employee's
prior written consent, unless such assignment is made in connection with
a
Change
in
Control, in which case, this Agreement shall inure to the benefit of and
be
binding
upon the Company and its successors and assigns and any such successor
or
assignee
shall be deemed substituted for the Company under the terms of this Agreement
for
all
purposes. With
respect to any assignment of this Agreement by Company requiring
Employee's prior written consent, no such permitted assignment shall
relieve
the
Company of its obligations or liability hereunder unless Employee otherwise
agrees
in
writing.
XIII.
WAIVER.
No
waiver
of any breach of any term or provision of this Agreement shall be
construed
to be, nor shall be, a waiver of any other breach of this Agreement. No waiver
shall
be
binding unless in writing and signed by the party waiving the
breach.
XIV.
MODIFICATION.
This
Agreement may not be amended or modified other than by
a
written agreement
executed by Employee and the Company's Chief Executive Officer.
9
EXECUTION
COPY
XV.
SAVINGS
CLAUSE.
If
any
provision of this Agreement or the 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 provisions or applications and to this end the
provisions of
this
Agreement are declared to be severable.
XVI.
COMPLETE
AGREEMENT.
This
Agreement constitutes and contains the entire agreement and final understanding
concerning Employee's employment with the Company and the other subject
matters addressed herein between the parties. It is intended by the parties
as a
complete
and exclusive statement of the terms of their agreement. It supersedes and
replaces
all prior negotiations and all agreements proposed or otherwise, whether written
or
oral,
concerning the subject matter hereof. Any representation,
promise or agreement not
specifically included in this Agreement shall
not
be
binding upon or enforceable against
either party. This is a
fully
integrated agreement. To the extent that there is any conflict
or inconsistency between the terms of this Agreement and the terms of the
Option
Agreement or the Plan, the terms of this Agreement shall govern.
XVII.
GOVERNING
LAW.
This
Agreement shall be deemed to have been executed and delivered within the
State
of
California, and the rights and obligations of the parties hereunder shall be
construed
and enforced in accordance with, and governed by, by the laws of the State
of
California
without regard to principles of conflict of laws.
XVIII.
CONSTRUCTION.
Each
party has cooperated in the drafting and preparation of this Agreement.
Hence,
in
any construction to be made of this Agreement, the same shall not be construed
against
any party on the basis that the party was the drafter. The captions of this
Agreement
are not part of the provisions hereof and shall have no force or
effect.
XIX.
COMMUNICATIONS.
All
notices, requests, demands and other communications hereunder shall be in
writing
and shall be
deemed
to
have
been duly given if delivered or if mailed by registered
or certified mail, postage prepaid, addressed to Employee at 0000 Xxxxxx
Xxxxx,
Xxxxxx, Xxxxxxxxxx 00000 or addressed to the Company at 00000 Xxxxxxx Xxxx.,
Xxxxxxx
Xxxx XX 00000, Attention: Xxx Xxxxx, Chief Executive Officer. Either party
may
change the address at which notice shall be given by written notice given in
the
above
manner.
10
EXECUTION
COPY
XX.
EXECUTION.
This
Agreement is being executed in one or more counterparts, each of which
shall
be
deemed an original, but all of which together shall constitute one and the
same
instrument.
Photographic copies of such signed counterparts may be used in lieu of the
originals for any purpose.
XXI.
CONFLICT
WITH OTHER AGREEMENTS.
In
the
event that an express provision of this Agreement conflicts with an express
provision
of the Plan and/or the Option Agreement, the
express provision of this Agreement
shall govern.
In
witness whereof, the parties hereto have executed this Agreement as of the
date
first above written.
| THE WAAT CORPORATION | ||
| |
|
|
| By: | /s/ Xxx Xxxxx | |
| Its Pres. /CEO | ||
|
XXXXX
XXXXXXX
|
||
| |
|
/s/ Xxxxx Xxxxxxx |
11
EXECUTION
COPY
EXHIBIT
A
OPTION
AGREEMENT
(To
Be Provided)
12
EXECUTION
COPY
EXHIBIT
B
General
Release Agreement
This
General Release Agreement (the "Agreement") is entered into as of
___,
200_,
by
and
between Xxxxx Xxxxxxx (the "Employee") and
WAAT
CORPORATION. (the "Company").
Employee
and the Company are parties to an Employment Agreement effective
as of June 5, 2006 (the "Employment Agreement").
Employee's
employment with the Company will terminate effective on ______, 200_
(the
"Termination Date"). In
exchange for the severance pay and other severance benefits
provided to Employee under Section IV-E-3 of the Employment Agreement
(including,
but not limited to, the right to retain all vested 401K benefits pursuant to
the
401K
Plan), and except for the obligations of Company under such Section
IV-E-3, Employee
hereby
covenants
not to xxx and releases the Company, and its subsidiaries, parent
and affiliated entities, past and present, and
each
of them, as
well
as
their
respective
trustees, directors, officers,
agents, employees, shareholders,
assignees, successors,
attorneys, and insurers, past and present, and each of them (individually
and
collectively
referred to herein as "Releasees"),
from any and all claims, wages,
agreements,
contracts, obligations, covenants, demands, costs, expenses, attorneys'
fees,
rights,
debts, liens, and causes of action, known or unknown, suspected or unsuspected,
arising
out of or in any way connected with his employment or any other transactions,
occurrences,
acts or omissions, or any loss, damage or injury whatsoever,
known or unknown,
suspected or unsuspected, resulting from any act or omission by or on the part
of
said
Releasees, or any of them, committed or omitted, prior to the execution of
this
Agreement, whether based on contract, tort,
common
law, or statute. Employee
acknowledges
by the execution of this Agreement that he has no further claims against
the
Releasees other than for the performance of the obligations set forth in Section
IV-E-3
and
Section XI of the Employment Agreement.
The
Employee hereby acknowledges that he has read this Agreement, understands its
contents and agrees to its terms and conditions knowingly, voluntarily and
of
his own free
will. Specifically, the Employee agrees: (a)
that
he is releasing any and all claims under
the
Age Discrimination in Employment Act of 1967, as amended by the Older Workers
Benefit Protection Act, and any federal, state or local fair
employment acts arising
up to the date of the execution of this Agreement; (b) that the consideration
being received
by the Employee is greater than he would have been entitled to receive before
signing
this Agreement; (c) that the Employee is hereby advised to consult an attorney
of his
choice prior to the execution of this Agreement; (d) that the Employee was
given
at least
twenty-one (21) days from the date of receipt of this Agreement to decide
whether or
not to
execute it; and (e) that the Employee has seven (7) days from the execution
of
this
Agreement to revoke its execution and this Agreement will become null and void
if he
elects
revocation during that time. Any
revocation must be in writing and must be received
by the Company during the seven-day revocation period. In
the
event of such revocation,
the Company will not have any obligations under this Agreement or Section
IV-E-3
of
the Employment Agreement except for the payment of Accrued Obligations as
defined in the Employment Agreement.
13
EXECUTION
COPY
If
any
provision of this Agreement or its application is held invalid, the invalidity
shall
not
affect other provisions or applications of the Agreement which can be given
effect
without the invalid provisions or application and, therefore, the provisions
of
this Agreement
are declared to be severable.
The
undersigned have read and understand the consequences of this Agreement
and
voluntarily sign it.
IN
WITNESS WHEREOF, the Parties have executed this Agreement as of the __
day
of
_ 200_.
| XXXXX XXXXXXX | ||
| |
|
|
| THE WAAT CORPORATION | ||
| |
|
|
| By | ||
| Its | ||
14
