THE WAAT CORP.
Execution
Version
THE
WAAT CORP.
May
16,
2006
Xx. Xxx
XxXxxxx
x/x
Xxx
XXXX Xxxx.
00000
Xxxxxxx Blvd, 3rd Floor
Xxxxxxx
Xxxx, Xxxxxxxxxx 00000
Dear
Adi:
The
purpose of this letter (the “Letter
Agreement”) is
to
acknowledge and set forth
the
terms and conditions of your employment with The WAAT Corp., a California
corporation
(the “Company”).
1.
Duties
and Responsibilities.
During
the Employment Term, you will serve as
the
Managing Director of the Company or in such other position as determined by
the
Chief
Executive Officer of the Company from time to time. You will report to the
Chief
Executive
Officer of the Company (or its designee). You will have such duties and
responsibilities
that are commensurate with your position and such other duties and responsibilities
as are from time to time assigned to you by the Chief Executive Officer
(or
its
designee)..
During
the Employment Term, you will devote your full business time, energy
and skill to the performance of your duties and responsibilities hereunder,
provided
the foregoing shall not prevent you from (i) serving on the board of directors
of non-profit
organizations and, with the prior written approval of the Board, other
companies,
(ii) participating in charitable, civic, educational, professional, community
or
industry
affairs and (iii) managing your and your family’s passive personal investments;
provided
such activities in the aggregate do not interfere or conflict with your duties
hereunder
or create a potential business conflict.
2.
Employment
Term. The
term
of your employment under this Letter Agreement
(the “Employment
Term”) will
be
for a term commencing on the date first written above (the “Effective
Date”) and,
unless terminated earlier as provided in paragraph
6 hereof or extended by mutual consent of you and the Company on terms at least
as favorable as those in the final year of the Employment Term, ending on the
third anniversary
of the Effective Date.
3.
Base
Salary.
During
the Employment Term, the Company will pay you a base
salary at the rate of $300,000 per year, in accordance with the usual payroll
practices of
the
Company. Your Base Salary shall be subject to annual review by the Board and
may
be
increased, but not decreased, from time to time by the Board; provided, however,
that,
commencing January 1, 2007, you shall receive a minimum annual increase in
Base
Salary equal to the lesser of 5% or the percentage equal to the increase, if
any, in the Consumer
Price Index measured for the 12 month period immediately preceding the effective
date of the increase. The base salary as determined herein from time to time
shall
constitute “Base
Salary”
for
purposes of this Letter Agreement. For purposes of this
paragraph 3, “Consumer
Price Index”
shall
mean the Consumer Price Index for Urban
Wage Earners and Clerical Works (1982 - 1984
=
100) for the Los Angeles Metropolitan
area published by the United States Department of Labor, Bureau of Statistics.
Xx. Xxx
XxXxxxx
Page
2
4.
Annual
Bonus. You
will
be eligible to receive an annual target cash bonus of up to 35% of Base Salary,
if earned, determined by the Board (the “Bonus”).
Such
bonus will
be
based upon the achievement of performance goals set by the Board (or a
committee
thereof), including, without limitation, the operating results of the Company
and
your
individual performance, as determined by the Board in its sole
discretion.
5.
Benefits
and Fringes.
(a)
General. During
the Employment Term, you will be entitled to such benefits and fringes, if
any,
as are generally provided from time to time by the
Company to its employees at a level commensurate with your position, subject
to
the
satisfaction of any eligibility requirements.
(b)
Vacation.
You will
also be entitled to annual paid vacation in accordance
with the Company’s vacation policies in effect from time to time, but
in
no
event less than four weeks per calendar year (as prorated for partial years),
which vacation may be taken at such times as you elect with due regard to the
needs of the Company.
(c)
Reimbursement
of Business and Entertainment Expenses; Travel. Upon
presentation of appropriate documentation, you will be reimbursed in
accordance with the Company’s expense reimbursement policy for all reasonable
and necessary business and entertainment expenses incurred in connection with
the performance of your duties and responsibilities hereunder. If
you
travel on business of the Company, you will be reimbursed for the cost of
airfare (business class airfare or other airfare class comparable in cost to
business class
airfare on all flights scheduled to have a flight time of three or more hours)
and
the
reasonable cost of business class lodging accommodations, as well as for
your
reasonable and necessary out-of-pocket expenses incurred in connection
therewith,
in accordance with the Company’s policies.
(d)
Automobile
Allowance. During
the Employment Term, you will receive
an automobile allowance in the amount of $600 per month.
6.
Termination
of Employment.
Your
employment and the Employment Term will
terminate on the first of the following to occur:
Xx. Xxx
XxXxxxx
Page
3
(a)
Disability.
Upon
written notice by the Company to you of termination due to Disability, while
you
remain Disabled. For purposes of this Letter
Agreement, “Disability”
will
be
defined as your inability to perform your material duties hereunder due to
a
physical or mental injury, infirmity or incapacity for a continuous period
of
not less than 90 days (including weekends and
holidays) or for 180 days (including weekends and holidays) in any 365-day
period.
(b)
Death. Automatically
on the date of your death.
(c)
Cause.
Immediately
upon written notice by the Company to you of
a
termination for Cause. For purposes of this Letter Agreement, “Cause”
will
mean:
(1)
your
willful misconduct which, in the good faith judgment of
the
Board, has a material negative impact on the Company (either economically
or on its reputation);
(2)
your
indictment for, conviction of, or pleading of guilty or nolo
contendere to,
a
felony (or equivalent outside of the United States) or any crime involving
fraud, dishonesty or moral turpitude;
(3)
your
failure to perform your duties, which failure is not remedied
within 20 days of written notice from the Board specifying the details
thereof;
(4)
your
failure to follow the legal direction of the Board after written
notice from the Board specifying the details thereof; and
(5)
any
other
material breach of this Letter Agreement by you that
is
not remedied within 20 days of written notice from the Board specifying
the details thereof.
(d)
Without
Cause. Upon
30
days’ prior written notice by the Company
to you of an involuntary termination without Cause, other than for death
or
Disability;
(e)
Good
Reason. Upon
written notice by you to the Company of a termination
for Good Reason, unless such events are corrected in all material respects
by
the Company within 20 days following your written notification to the
Company
for one of the reasons set forth below. “Good
Reason” will
mean, withbut
your express written consent, any reduction of, or failure to timely pay,
your
Base
Salary or any material breach of paragraphs 4 or 5 of this Letter Agreement.
Good Reason will cease to exist for an event on the 90th day following its
occurrence, unless you have given the Company written notice thereof prior
to
such date.
Xx. Xxx
XxXxxxx
Page
4
(f)
Expiration
of Employment Term. Upon
the
end of the Employment
Term.
7.
Compensation
Upon Termination.
(a)
Disability;
Death; Cause. If
your
employment terminates on account
of your Disability or your death or if the Company terminates you for Cause,
the
Company will pay or provide to you (i) any unpaid Base Salary through the date
of termination; (ii) other than if the Company terminates your employment for
Cause, any Bonus earned but unpaid with respect to the fiscal year
ending on or preceding the date of termination; (iii) reimbursement for any
unreimbursed
expenses incurred through the date of termination; (iv) any accrued but unused
vacation time in accordance with Company policy; and (v) all other payments,
benefits or fringe benefits to which you may be entitled under the terms
of
any
applicable compensation arrangement or benefit, equity or fringe benefit
plan
or
program or grant or this Letter Agreement (collectively items (i) through
(v)
shall
be hereafter referred to as “Accrued
Benefits”)
(b)
Termination
Without Cause or For Good Reason. If
your
employment
by the Company is terminated by the Company without Cause or by you for Good
Reason, the Company will pay or provide you with (x) any Accrued Benefits;
and (y) subject to your compliance with the obligations in paragraphs 8
and
9
hereof: (1) continued payment of your base salary (but not as an employee)
in
accordance with the usual payroll practices of the Company for the greater
of
(A)
a
period equal to the period between the date of termination and the end of the
Employment
Term or (B) a period equal to three months following such termination (the
“Severance
Period”);
(2)
at
the time bonuses are typically paid to
employees, a pro-rata portion of the Bonus for the fiscal year in which your
termination occurs based on actual results for the plan year (determined by
multiplying
the amount of the Bonus which would be due for the full fiscal year by
a
fraction, the numerator of which is the number of days during the fiscal year
of
termination that you are employed by the Company and the denominator of
which
is
365); (3) subject to (A) your timely election of continuation coverage
under
the
Consolidated Budget Omnibus Reconciliation Act of 1985, as amended (“COBRA”)
and
(B) your continued copayment of premiums at the same level and cost to you
as if
you were an employee of the Company (excluding, for purposes of calculating
cost, an employee’s ability to pay premiums with pre-tax dollars),
to the extent permitted under applicable law and the terms of such plan,
continued
participation during the Severance Period in the Company’s group health
plan which covers you as of the date of termination at the Company’s
expense
(other than the aforementioned premiums), provided that you are eligible
and
remain eligible for COBRA coverage; provided, however, that in the event that
you
obtain other employment that offers substantially similar or improved group
health benefits, such continuation of coverage by the Company under this
sub-paragraph
shall immediately cease; and (4) immediate vesting and exercisability
of 50% of all outstanding stock options to purchase shares of the Company’s
common stock. Payments or benefits provided in this paragraph 7(b) shall
be
in lieu of any termination or severance payments or benefits for which you
may
be eligible under any of the plans, policies or programs of the
Company.
Xx. Xxx
XxXxxxx
Page
5
(c) Expiration
of Employment Term. If
the
Employment Term ends at
the
third anniversary of the Effective Date and you do not continue as an
employee
beyond such time, the Company will pay or provide you with (x) any Accrued
Benefits; and (y) subject to your compliance with the obligations in
paragraphs
8 and 9 hereof: (1) continued payment of your base salary (but not as
an
employee) in accordance with the usual payroll practices of the Company for
a
period equal to three months following such termination; and (2) the benefits
provided
in paragraph 7(b)(3)
for a period of three months.
8.
Release;
No Set-Off; No Mitigation.
(a)
Any
and
all amounts payable and benefits or additional rights provided
pursuant to this Letter Agreement beyond Accrued Benefits shall only be payable
if you deliver to the Company and do not revoke a general release of
all
claims related to the Company, its affiliates, and their respective past,
present and
future employees, officers, trustees, agents and representatives in a form
substantially in the form of Exhibit A hereto and mutually agreed upon by you
and
the
Company.
(b)
The
Company’s obligation to make any payment provided for in this
Letter Agreement shall not be subject set-off, counterclaim or recoupment of
amounts
owed by you to the Company or its affiliates.
(c)
In no
event shall you be obliged to seek other employment or take any other action
by
way of mitigation of the amounts payable to you under any of the provisions
of
this Letter Agreement, nor shall the amount of any payment hereunder be reduced
by any compensation earned by you as
a
result of employment
by another employer (other than as provided in paragraph
7(b)(y)(3)).
Xx. Xxx
XxXxxxx
Page
6
9.
Restrictive
Covenants.
(a)
Non-Competition. During
the Employment Term, you will not, directly
or indirectly, without the prior written consent of the Company, enter into
Competition with the Company or any of its affiliates (the “Employer”). “Competition”
means
participating, directly or indirectly, as an individual proprietor,
partner, stockholder, officer, employee, director, joint venturer, investor,
lender, consultant or in any capacity whatsoever in a business in the field
of
business that the Employer is engaged in as of the date of your termination
of
employment
with the Company or is actively planning to engage in as of the date
of
your
termination of employment with the Company.
(b)
Confidentiality. During
the Employment Term and thereafter, you
will
hold in a fiduciary capacity for the benefit of the Employer all secret or
confidential
information, knowledge or data relating to the Employer, and their respective
businesses, which will have been obtained by you during your employment
by the Company and which will not be or become public knowledge (other than
by
acts by you or your representatives in violation of this Letter Agreement).
You will not, except as may be required to perform your duties hereunder
or as may otherwise be required by law or legal process, without limitation
in time or until such information will have become public or known in the
Employer’s industry (other than by acts by you or your representatives in
violation of this Letter Agreement), communicate or divulge to others or use,
whether directly or indirectly, any such information, knowledge or data
regarding the
Employer, and their respective businesses.
(c)
Non-Solicitation
of
Customers. During
the Employment Term and
for
the twelve-month period following your termination of employment for
any
reason (the “Restricted
Period”),
you
will
not, directly or indirectly, influence
or attempt to influence customers or suppliers of the Employer to divert their
business to any competitor of the Employer.
(d)
Non-Solicitation
of Employees. You
recognize that you possess and
will
possess confidential information about other employees of the Employer
relating
to their education, experience, skills, abilities, compensation and benefits,
and
inter-personal relationships with customers of the Employer. You recognize
that
the
information you possess and will possess about these other employees is not
generally known, is of substantial value to the Employer in developing its
business
and in securing and retaining customers, and has been and will be acquired
by you because of your business position with the Employer. You agree
that,
during the Restricted Period, you will not, directly or indirectly, solicit
or
recruit
any employee of the Employer for the purpose of being employed by you
or
by any
competitor of the Employer on whose behalf you are acting as an agent,
representative
or employee and that you will not convey any such confidential information
or trade secrets about other employees of the Employer to any other person.
Xx. Xxx
XxXxxxx
Page
7
(e)
Non-Disparagement. You
shall
not, or induce others to, Disparage
the Employer or any of their past and present officers, directors, employees
or
products. “Disparage”
shall
mean making comments or statements to
the
press, the Employer’s employees or any individual or entity with whom the
Employer
has a business relationship which would adversely affect in any manner:
(i) the conduct of the business of the Employer (including, without limitation,
any products or business plans or prospects); or (ii) the business reputation
of
the Employer, or any of their products, or their past or present officers,
directors or employees.
(f)
Cooperation. Upon
the
receipt of notice from the Company (including
outside counsel), you agree that during the Employment Term and thereafter,
you will respond and provide information with regard to matters in which you
have knowledge as a result of your employment with the Company, and will provide
reasonable assistance to the Employer and its representatives in defense of
any
claims that may be made against the Employer, and will assist the Employer
in
the prosecution of any claims that may be made by the Employer, to the extent
that such claims may relate to the period of your employment with the
Company
(or any predecessor). You agree to promptly inform in the Company if
you
become aware of any lawsuits involving such claims that may be filed or
threatened
against the Employer. You also agree to promptly inform the Company
(to the extent you are legally permitted to do so) if you are asked to
assist
in
any investigation of the Employer (or their actions), regardless of whether
a
lawsuit or other proceeding has then been filed against the Employer with
respect to such investigation, and will not do so unless legally
required.
(g)
Injunctive
Relief. It
is
further expressly agreed that the Employer will or would suffer irreparable
injury if you were to violate the provisions of this paragraph
9 and that the Employer would by reason of such violation be entitled
to
injunctive relief in a court of appropriate jurisdiction and you further consent
and
stipulate to the entry of such injunctive relief in such court prohibiting
you
from
violating the provisions of this paragraph 9.
(h)
Survival
of Provisions. The
obligations contained in this paragraph 9 will survive the termination of your
employment with the Company and
will
be fully enforceable thereafter. If it is determined by a court of competent
jurisdiction in any state that any restriction in this paragraph 9 is
excessive
in duration or scope or extends for too long a period of time or over too great
a range of activities or in too broad a geographic area or is unreasonable
or
unenforceable
under the laws of that state, it is the intention of the parties that
such
restriction
may be modified or amended by the court to render it enforceable to the maximum
extent permitted by the law of that state or jurisdiction.
10.
Representations.
You
represent and warrant that your execution and delivery of
this
Letter Agreement and your performing the contemplated services does not and
will
not
conflict with or result in any breach or default under any agreement, contract
or arrangement
which you are a party to or violate any other legal restriction. You
further represent
and warrant that you have been advised by the Company to consult independent
legal
counsel of your choice before signing this Letter Agreement.
Xx. Xxx
XxXxxxx
Page
8
11.
Assignment. Notwithstanding
anything else herein, this Letter Agreement is personal
to you and neither the Letter Agreement nor any rights hereunder may be
assigned
by you. The Company may assign the Letter Agreement to an affiliate or to any
acquiror
of all or substantially all of the assets of the Company. This
Letter Agreement will inure to the benefit of and be binding upon the personal
or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, legatees and
permitted assignees of the parties.
12.
Arbitration. You
agree
that all disputes and controversies arising under or in connection
with this Letter Agreement, other than seeking injunctive or other equitable
relief under paragraph 9(g), will
be
settled by arbitration conducted before one (1) arbitrator
mutually agreed to by the Company and you, sitting in Los Angeles, California
or
such
other location agreed to by you and the Company, in accordance with the
National
Rules for the Resolution of Employment Disputes of the American Arbitration
Association
then in effect; provided, however, that if the Company and you are unable to
agree
on
a single arbitrator within 30 days of the demand by another party for
arbitration, an arbitrator will be designated by the Los Angeles Office of
the
American Arbitration Association. The determination of the arbitrator will
be
final and binding on you and the Employer. Judgment may be entered on the award
of the arbitrator in any court having proper
jurisdiction. Each party will bear their own expenses of such
arbitration.
13.
Indemnification.
The
Company hereby agrees to indemnify you and hold you harmless to the extent
provided under the by-laws of the Company against and in respect to any and
all
actions, suits, proceedings, claims, demands, judgments, costs, expenses
(including reasonable attorney’s fees), losses, and damages resulting from the
your
good
faith performance of his duties and obligations with the Company. This
obligation
shall survive the termination of your employment with the Company.
14.
Liability
Insurance. The
Company shall cover you under directors and officers liability
insurance both during and, while potential liability exists, after the
Employment
Term in the same amount and to the same extent as the Company covers its
other
officers and directors.
15.
Withholding
Taxes.
The
Company may withhold from any and all amounts payable
to you such federal, state and local taxes as may be required to be withheld
pursuant
to any applicable laws or regulations.
16.
Governing
Law. This
Letter Agreement will be governed by, and construed under
and
in accordance with, the internal laws of the State of California, without
reference
to rules relating to conflicts of laws.
Xx. Xxx
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Page
9
17.
Entire
Agreement; Amendments. This
Letter Agreement and the agreements
referenced herein contain the entire agreement of the parties relating to the
subject
matter hereof, and supercede in their entirety any and all prior agreements,
understandings
or representations relating to the subject matter hereof. No amendments,
alterations
or modifications of this Letter Agreement will be valid unless made in writing
and
signed by the parties hereto.
18.
Notice.
Any
notice or other communication required or permitted to be given under
this Agreement (a
“Notice”)
shall
be in writing and delivered in person, by facsimile
transmission (with a Notice contemporaneously given by another method
specified
in this paragraph 18), by overnight courier service or by postage prepaid mail
with
a
return receipt requested, at the following locations (or to such other address
as either
party may have furnished to the other in writing by like Notice. All
such
Notices shall
only be duly given and effective upon receipt (or refusal of
receipt).
If
to the
Executive:
At
the
address (or to the facsimile number) shown
on
the
records of the Company
If
to the
Company:
The
WAAT
Corp.
00000
Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxxxx
Xxxx, Xxxxxxxxxx 00000
Attention:
Chief Executive Officer
We
hope
that you find the foregoing terms and conditions acceptable. You
may
indicate
your agreement with the terms and conditions set forth in this Letter Agreement
by
signing the enclosed duplicate original of this Letter Agreement and returning
it to me.
Xx. Xxx
XxXxxxx
Page
10
We
look
forward to your continued employment with the Company.
|
Very
truly yours,
|
|||||||
|
THE
WAAT
CORP.
|
|||||||
|
By:
|
/s/
Xxx
Xxxxx
|
||||||
|
Name:
|
Xxx
Xxxxx
|
||||||
|
Title:
|
Chief
Executive Officer
|
||||||
Accepted
and Agreed:
|
|
|
||
| /s/ Adi McAbian | |||
| Adi McAbian |
Exhibit
A
Form
of Release
To:
The
WAAT
Corp.
00000
Xxxxxxx
Xxxx, 0xx Xxxxx
Xxxxxxx
Xxxx,
Xxxxxxxxxx 00000
Attention:
Chief Executive Officer
1.
Termination. (a)
I
hereby acknowledge that my employment with The WAAT
Corp. (“WAAT”)
will
terminate on
____________,
____(the
“Termination
Date”)
pursuant
to provisions of paragraph 6 of my employment letter agreement dated
as
of May
__,
2006
with
WAAT (the “Letter
Agreement”),
that
WAAT
will not have an obligation
to rehire me or to consider me for reemployment after the Termination Date
and
that my employment with WAAT is permanently and irrevocably
severed.
(b)
I
hereby
confirm my resignation from my position as Chief Executive
Officer of WAAT and that I will not be eligible for any benefits or compensation
after the Termination Date, other than as specifically provided hereunder and
in
paragraph 7 of the Letter Agreement. In
addition, effective as of the Termination Date, I hereby resign from all
offices, directorships, trusteeships, committee
memberships and fiduciary capacities held with, or on behalf of, WAAT
or
any of its affiliates or any benefit plans of WAAT or any of its affiliates.
These resignations will become irrevocable on the Effective Date of this
Agreement, as defined in paragraph 7 below.
(c)
I
further
acknowledge and agree that, after the Termination Date, I will
not
represent myself as being a director, employee, officer, trustee, agent or
representative
of WAAT for any purpose and will not make any public statements relating
to WAAT and in no event will I make any statements as an agent or representative
of WAAT.
2.
Consideration.
I
acknowledge that this General Release is being executed in accordance
with paragraph 8 of the Letter Agreement.
3.
General
Release.
(a)
For
and in consideration of the payments to be made and
the
promises set forth in the Letter Agreement, I, for myself and for my heirs,
dependents,
executors, administrators, trustees, legal representatives and assigns
(collectively
referred to as “Releasors”),
hereby
forever release, waive and discharge WAAT and its shareholders, representatives,
affiliates and subsidiaries, employee benefit and/or pension plans or funds,
insurers, successors and assigns, and all of its or their past, present and/or
future officers, trustees, agents, attorneys, employees, fiduciaries, trustees,
administrators and assigns when acting as agents for WAAT (collectively referred
to as “Releasees”),
from
any
and all claims, demands, causes of action, fees and liabilities of any
kind
whatsoever, whether known or unknown, which Releasors ever had, now have, or
hereafter may have against Releasees by reason of any actual or alleged act,
omission, transaction, practice, policy, procedure, conduct, occurrence, or
other matter up to and including
the date of my execution of this General Release, including without limitation,
those
in
connection with, or in any way related to or arising out of, my employment,
service
as a director, service as a trustee, service as a fiduciary or termination
of
any of the
foregoing with WAAT or any other agreement, understanding, relationship,
arrangement,
act, omission or occurrence, with WAAT or other claims.
(b)
Without
limiting the generality of the foregoing, this General Release
is intended and will release the Releasees from any and all claims, whether
known or unknown, which Releasors ever had, now have, or may hereafter
have against the Releasees including, but not limited to, (i) any claim of
discrimination
or retaliation under the Age Discrimination in Employment Act (“ADEA”)
29
U.S.C. Section 621 et seq., Title VII of the Civil Rights Act, the Americans
with Disabilities Act, the Employee Retirement Income Security Act of
1974,
as amended (“ERISA”)
or the
Family and Medical Leave Act; (ii) any claim
under the California Fair Employment Act, the California Labor Code, the
California
Family Rights Act, the California Pregnancy Disability Leave Law or the
California Continuation Benefits Replacement Act; (iii) any other claim
(whether
based on federal, state or local law or ordinance statutory or decisional)
relating to or arising out of my employment, the terms and conditions of such
employment,
the termination of such employment and/or any of the events relating
directly or indirectly to or surrounding the termination of such employment,
and/or any of the events relating directly or indirectly to or surrounding
the termination of that employment, including, but not limited to, breach
of
contract (express or implied), tort, wrongful discharge, detrimental reliance,
defamation, emotional distress or compensatory or punitive damages; and
(iv)
any claim for attorney’s fees, costs, disbursements and the like.
(c)
I
agree
that I will not, from any source or proceeding, seek or accept any award or
settlement with respect to any claim or right covered by paragraph 3(a) or
(b)
above, including, without limitation, any source or proceeding
involving any person or entity, the United States Equal Employment Opportunity
Commission or other similar federal or state agency. Except as otherwise
required by law, I further agree that I will not, at any time hereafter,
commence, maintain, prosecute, participate in as a party, permit to be filed
by
any other
person on my behalf (to the extent it is within my control or permitted by
law),
or
assist in the commencement or prosecution of as an advisor, witness (unless
compelled by legal process or court order) or otherwise, any action or
proceeding of any kind, judicial or administrative (on my own behalf, on behalf
of any
other
person and/or on behalf of or as a member of any alleged class of persons)
in any court, agency, investigative or administrative body against any
Releasee
with respect to any actual or alleged act, omission, transaction, practice,
conduct,
occurrence or any other matter up to and including the date of my execution
of this General Release which I released pursuant to paragraph 3(a) or
(b)
above. I further represent that, as of the date I sign this General Release,
I
have
not
taken any action encompassed by this paragraph 3(c).
If,
notwithstanding
the foregoing promises, I violate this paragraph 3(c),
I
will
indemnify
and hold harmless Releasees from and against any and all demands, assessments,
judgments, costs, damages, losses and liabilities and attorneys’ fees
and
other
expenses which result from, or are incidents to, such violation. Notwithstanding
anything herein to the contrary, this paragraph 3(c) will not apply to any
claims that I may have under the ADEA and will not apply to the portion of
the
release provided for in paragraph 3(a) or (b) relating to the
ADEA.
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(d)
The
sole
matters to which the release and covenants in this paragraph
3 do not apply are: (i) my rights of indemnification and coverage under
directors
and officers liability insurance to which I was entitled immediately prior
to
the
Termination Date under the Company’s certificate of incorporation, bylaws
or
other
corporate governance documents or paragraphs 13 and 14 of the Letter
Agreement;
or (ii) my rights under any tax-qualified pension plan maintained by WAAT or
claims for accrued, vested benefits under any other employee benefit
plan
or
under the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended,
(iii) my rights as a stockholder of the Company; and (iv)
my
rights under
the
Letter Agreement.
(e)
I
hereby
expressly and knowingly waive application of Section 1542
of
the California Civil Code and all comparable, equivalent or similar provisions
of state or federal law. I further certify that I have read and understand
the
provisions of Section 1542 of
the
California Civil Code, which reads 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 IF KNOWN BY HIM
MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT
WITH THE DEBTOR.
4.
Restrictive
Covenants; Survival. I
hereby
acknowledge the existence and applicability
of the restrictions set forth in paragraph 9 of the Letter Agreement, as well
as
the
other provisions of the Letter Agreement which are intended to survive
termination of
employment. All such provisions shall remain in full force and effect following
the Termination
Date.
5.
Governing
Law; Enforceability.
The
interpretation of this General Release will be governed and construed in
accordance with the laws of the State of California, without
reference to principles of conflict of laws. If any provisions of this General
Release
will be declared to be invalid or unenforceable, in whole or in part, such
invalidity
or unenforceability will not affect the remaining provisions hereof which will
remain
in
full
force
and
effect.
6.
Acknowledgement. I
acknowledge that I have been advised by WAAT in writing
to consult independent legal counsel of my choice before signing this General
Release.
I further acknowledge that I have had the opportunity to consult, and I have
consulted with, independent legal counsel and to consider the terms of this
General Release
for a period of at least 21 days.
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7.
Effective
Date.
I
further
acknowledge that this General Release will not become
effective until the eighth day following my execution of this General Release
(the
“Effective Date”), and that I may at any time prior to the
Effective Date revoke this General
Release by delivering written notice of revocation to: The WAAT Corp. at 00000
Xxxxxxx
Xxxx, 0xx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, to the attention of the
[________] In
the
event that I revoke this General Release prior to the eighth day after its
execution, this General Release and the promises contained in the Letter
Agreement, will automatically be null and void.
8.
Entire
Agreement. I
understand that this General Release and the Letter Agreement
constitute the complete understanding between WAAT and me and that no
other
promises or agreements will be binding unless in writing and signed by me and
WAAT
after the date hereof.
9.
Counterparts. This
General Release may be executed in several counterparts,
each of which will be deemed to be an original but all of which together
will
constitute one and the same instrument.
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Dated:
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