SEVERANCE AGREEMENT
SEVERANCE AGREEMENTdated the16thdayof July2013,by andbetweenAirware Labs
Corp,a Delawarecorporation("Employer"), andJeffrey Rassas, ("Employee").
WHEREAS,Employee isanexecutiveofficerandavaluedemployeeofEmployer.
WHEREAS,Employer andEmployeedesiretoagreetotheresultsofanyterminationof
Employee's employmentbyEmployerotherthanforcause.
NOW,THEREFORE,inconsiderationofthepremises andof themutualcovenantssetforthin this
Agreement, theparties heretoagreeasfollows:
1.Resultof TerminationOtherthanfor Cause.IntheeventthatEmployerterminatesEmployee's employmentwithEmployerotherthanforcause, (a) Employershall pay Employee's base salary for aperiodof 12 months followingsuch termination, (b) Employer shallpayto Employee, atthe sametimeasbonuses are paid to Employer's other executives, a portion ofthe bonus earned by Employee for the period commencing on the firstday of the fiscal year for which the bonus is calculated and ending on the date of termination ; and (c) all unvested stock-based compensation heldby Employee shall vest as ofthe date of termination. As used herein, "cause" shall mean any termination ofEmployee 's employment by Employeras a result of Employee engaging inan act oracts involving a crime, moral turpitude, fraud, or dishonesty, or Employee willfully violating ina material respect Employer 's Corporate Governance Guidelines, Code of Conduct, or any applicable Code of Ethics, including, without limitation, the provisions thereof relating to conflicts of interest or related partytransactions.
2.CompetitionandConfidentialInformation .
(a)Intereststobe Protected.ThepartiesacknowledgethatEmployeeperformsessentialservices forEmployer, itsemployees,and its stockholdersduring the termof Employee's employment with Employer.Employeeis exposed to, has access to, and works with, a considerable amount of Confidential Information (as defined below). The partiesalso expressly recognize and acknowledge thatthepersonnel of Employerhave been trained by, andare valuable to, Employer and that Employerwill incur substantial recruiting andtraining expensesif Employer must hire newpersonnel or retrain existing personnel tofill vacancies. The parties expresslyrecognize thatit could seriously impair the goodwill anddiminish the value ofEmployer's business should Employee compete with Employer in any manner whatsoever. Theparties acknowledgethat thiscovenant has an extended duration; however, they agree that this covenant is reasonable and it is necessary for the protection of Employer, its stockholders, and employees. For these and other reasons, and the fact that there are many other employment opportunities available to Employeeif his employment is terminated, theparties arein full and completeagreementthat the followingrestrictivecovenants are fair and reasonableandare entered into freely,voluntarily, and knowingly. Furthermore, each party was given the opportunitytoconsult with independent legal counselbefore enteringinto this Agreement.
(b)Non-Competition.Fortheperiodequalto12monthsaftertheterminationbyEmployerof Employee's employmentwithEmployer otherthanforcause orupon resignation by Employee, Employee shallnot (whether directly orindirectly, as owner, principal , agent, stockholder, director, officer, manager, employee, partner, participant, orin anyother capacity) engageor becomefinancially interested in any competitive business conducted within theRestricted Territory(asdefined below). Asusedherein, the term "competitive business" shall meananybusiness that sellsor providesor attempts to sell orprovide productsor servicesthesame as orsubstantially similar to theproducts or services soldorprovided byEmployer during Employee's employment,and the term ··Restricted Territory'' shall mean any state or other geographical in which Employer sells products orprovides services during Employee's employment.
(c)Non-SolicitationofEmployees.For aperiodof 24monthsaftertheterminationby Employer
of Employee's employmentwithEmployerotherthanforcauseorresignationbyEmployee, Employee shall not directly orindirectly, for Employee, or onbehalf of, or in conjunctionwith, anyother person, company, partnership, corporation, or governmental entity, solicit for employment, seek tohire, or hire any person orpersons whois employed by or was employed by Employer within12months of the termination ofEmployee's employment forthepurposeofhavinganysuchemployee engage in services that arethe same asor similar orrelated to the services that suchemployeeprovided forEmployer.
(d)ConfidentialInformation.Employee shallmaintainin strictsecrecyallconfidentialortrade
secret informationrelatingtothebusinessofEmployer(the"ConfidentialInformation") obtainedby EmployeeinthecourseofEmployee's employment, and Employee shallnot, unless first authorized in writing by Employer, disclose to, or usefor Employee's benefit or forthe benefit of, any person, firm, or entity atany time either during or subsequentto theterm ofEmployee's employment, any Confidential Information, except asrequired in the performance of Employee’sduties on behalf of Employer. For purposes hereof, Confidential Information shall include without limitationanymaterials, trade secrets, knowledge, orinformationwith respect to management, operational , or investment policies andpractices of Employer; any business methods or forms; any names or addresses of customers or data on customers or suppliers; and any businesspolicies or otherinformation relating to or dealing with themanagement, operational, or investment policiesorpractices of Employer.
(e)Returnof Books,Records,Papers,andEquipment.Upon theterminationofEmployee's
employmentwithEmployerforanyreason,EmployeeshalldeliverpromptlytoEmployerallfiles,lists, books, records, manuals, memoranda, drawings, andspecifications; allcost, pricing, and otherfinancial data; all other writtenor printedmaterials and computers, cell phones, PDAs, and otherequipment that are theproperty of Employer (andany copies of them);and all other materials thatmay contain Confidential Information relatingtothebusiness ofEmployer, whichEmployee may then havein Employee's possession,whetherpreparedby Employee ornot.
(f)DisclosureofInformation.Employee shalldisclosepromptly toEmployer, orits nominee, anyand all ideas, designs, processes, and improvements of any kindrelating to the business of Employer, whether patentable ornot, conceived or made byEmployee, either alone or jointlywithothers, during working hours or otherwise, during the entire period of Employee's employment with Employer orwithin sixmonths thereafter.
(g)Assignment.EmployeeherebyassignstoEmployeroritsnominee, theentire right, title, and interest in and toall inventions, discoveries, and improvements, whetherpatentable ornot, thatEmployee mayconceive ormake during Employee's employment withEmployer, or within six months thereafter, and which relate tothebusiness of Employer.
(h)EquitableRelief.In theeventaviolationofanyoftherestrictionscontainedinthisSectionis established,Employer shall be entitled to preliminary and permanent injunctive reliefas wellas damages andan equitable accounting ofallearnings, profits, andother benefitsarising from such violation, which right shall be cumulative and inaddition to any other rightsor remedies to whichEmployer may beentitled. Intheeventofaviolation ofanyprovision ofsubsection (b), (c), (t), or(g) of this Section ,the period for which thoseprovisions would remain in effect shall beextended foraperiodoftimeequal to that period beginning when such violation commencedand ending whenthe activities constituting such
violation shallhavebeen finallyterminatedingoodfaith.
(i)RestrictionsSeparable.If the scope ofanyprovisionofthisAgreement(whetherinthis Section4orotherwise)isfound bya Courttobetoo broad topermit enforcement toitsfull extent, then suchprovision shall be enforced tothe maximumextent permitted bylaw. Theparties agreethat the scope of any provisionofthisAgreement maybe modified by a judge in any proceeding toenforce this Agreement, so that suchprovision can beenforced to the maximum extent permitted by law.Each and every restriction set forth inthis Section 4 is independent and severable fromthe others, and no such restriction shall be rendered unenforceablebyvirtue ofthe fact that, for any reason, any other or others of them may be unenforceable inwhole or in part.
3.Miscellaneous.
(a)Notices.Allnotices,requests, demands, andother communicationsrequiredor permitted underthisAgreementshallbein writingandshall be deemedto havebeen dulygiven, made, andreceived (i) if personally delivered, onthe date of delivery, (ii) if by facsimile transmission , upon receipt, (iii)if mailed,threedays after deposit in the United Statesmail , registered or certified, return receipt requested, postage prepaid, andaddressed asprovidedbelow, or (iv) if by a courier delivery service providing overnight or "next-day" delivery, on thenext business day after deposit withsuch serviceaddressed as follows:
(1) IftoEmployer:
8399 E.IndianSchoolRd.,#202
Scottsdale,AZ 8525 I
Attention: ChiefExecutiveOfficer
with acopygiveninthemanner prescribedabove, to:
8399 E.IndianSchoolRd.,#202
Scottsdale,AZ 85251
Attention: RonaldL.Miller, Jr., BoardMember
(2)If toEmployee:
8399E. Indian School Rd.,#202
Scottsdale,AZ85251
Phone: [( )_-_]
Either partymayaltertheaddresstowhichcommunicationsorcopiesaretobesentbygivingnoticeof suchchange ofaddress in conformity withthe provisions of this Section5 forthe giving ofnotice.
(b)Indulgences;Waivers.Neither anyfailurenoranydelayonthepartofeitherpartytoexercise anyright,remedy, power, orprivilege under this Agreement shalloperate asawaiver thereof, norshall any single orpartial exercise ofany right, remedy, power, orprivilege preclude any otherorfurther exercise of the sameor ofany other right,remedy, power, orprivilege, norshall any waiverofany right, remedy, power, orprivilege withrespect to any occurrence be construed asawaiver of suchright, remedy, power, or privilege withrespect to anyotheroccurrence. No waiver shall bebindingunlessexecuted inwritingby thepartymaking the waiver.
(c)ControllingLaw.ThisAgreementandallquestionsrelatingtoitsvalidity, interpretation, performance andenforcement, shallbe governedbyandconstrued in accordance withthelaws ofthestate of Delaware, notwithstandinganyDelaware or otherconflict-of-interest provisions tothecontrary.
(d)BindingNatureofAgreement.ThisAgreementshallbebindinguponandinuretothe benefitofthepartiesheretoandtheirrespective heirs, personal representatives, successors, and assigns, except thatno party mayassign ortransfersuchparty's rights orobligations under this Agreement without the prior written consent oftheotherparty.
(e)ExecutioninCounterpart.ThisAgreementmaybeexecutedinanynumberofcounterparts,
each ofwhichshallbedeemedtobeanoriginalasagainst anyparty whosesignature appearsthereon, and all ofwhich shall together constitute oneand the same instrument. This Agreement shall become binding when oneormore counterparts hereof,individually ortakentogether, shallbear thesignatures ofthe parties reflectedhereon as the signatories.
(f)ProvisionsSeparable.Theprovisions ofthis Agreementare independentofandseparable fromeachother,andno provisionshall be affected or rendered invalidorunenforceable by virtueofthe fact that forany reasonany otherorothersofthemmay be invalid or unenforceable in whole or in part.
(g)Entire Agreement.This Agreement containsthe entire understanding between theparties
hereto withrespecttothesubject matterhereof andsupersedes allprior andcontemporaneous agreements andunderstandings,inducements, andconditions, express or implied, oralor written,except as herein contained. The express terms hereofcontrol andsupersede any course ofperformance and/or usage of the trade inconsistent withany of thetermshereof. This Agreement may notbemodified oramended other thanbyan agreementin writing.
(h)NoParticipationin SeverancePlans.ExceptascontemplatedbythisAgreement,
Employee acknowledges andagrees thatthe compensation and otherbenefits setforth in this Agreement areandshall bein lieu of any compensation orotherbenefits that may otherwisebe payable toor on behalf of Employee pursuantto theterms of anyseverance payarrangement ofEmployer or an y affiliate thereof, or any other similar arrangement ofEmployer orany affiliates thereof providing forbenefits upon involuntary termination ofemployment.
(i)ParagraphHeadings.The paragraph headings inthis Agreementare forconvenienceonly;
they formnopartofthisAgreementandshall notaffect itsinterpretation.
(j)Gender.Words usedherein, regardless ofthe numberand genderspecificallyused, shallbe
deemed andconstruedtoincludeanyothernumber, singularor plural, andany othergender, masculine, feminine, orneuter,asthe context requires.
(k)Numberof Days.In computing thenumber of daysfor purposesofthisAgreement, alldays shallbe counted, including Saturdays, Sundays, and holidays; provided, however, thatif the finalday of any timeperiod falls on a Saturday, Sunda y, or holida y, then the final day shall be deemed to bethe next day thatisnot a Saturday, Sunday, orholiday.
4.Successors andAssigns.
This Agreementshall inureto thebenefitofand be binding uponthesuccessors andassigns ofthe partieshereto;provided that becausetheobligations ofEmployee hereunder involvetheperformance of personalservices, such obligations shall notbe delegated by Employee. Forpurposes ofthisAgreement successors andassigns shall include,but notbe limitedto, any individual, corporation, trust, partnership, or otherentity thatacquires a majority ofthe stockor assetsof Employer by sale, merger, consolidation, liquidation, or otherform oftransfer. Employer will require any successor (whether direct orindirect, by purchase, merger, consolidation, or otherwise) toallor substantially allof thebusinessand/or assets of Employer toexpressly assumeandagreetoperformthisAgreementin the samemanner andto thesame extentthat Employerwould berequiredto performit ifno such succession had taken place. Without limitingthe foregoing, unless the contextotherwise requires, the term "'Employer" includes allsubsidiariesof Employer.
IN WITNESSWHEREOF,thepartieshaveexecutedthisAgreementasofthedatefirstabove written.
