EMPLOYMENT AGREEMENT (Director, Chief Executive Officer)
EX. 10.1
(Director,
Chief Executive Officer)
This
EMPLOYMENT AGREEMENT is dated as of this 5th day
of
November, 2007 (“Date of Commencement”).between Xxxxxx
Xxxx (the
“Executive”) and NEXTPHASE
WIRELESS, INC.,
a
Nevada
corporation (the “Company”).
WHEREAS,
the Company wishes to employ the Executive and the Executive desires to accept
such employment, upon the terms and conditions stated herein;
NOW,
THEREFORE, in consideration of the promises exchanged by the parties, it is
agreed:
| 1. |
Employment.
The Company hereby agrees to employ the Executive, and the Executive
hereby accepts such employment, upon the terms and conditions set
forth
herein.
|
| 2. |
Duties
and Responsibilities of the Executive.
During the term of his employment, the Executive shall execute his
duties
and responsibilities as follows:
|
| a. |
The
Executive shall diligently and faithfully serve the Company in the
capacity of Director and CEO, which shall be the Chief Executive
Officer
of the Company responsible for the operations of the
Company.
|
| b. |
The
Executive shall devote his best efforts, services and attention to
the
advancement of the Company’s business and interests. The Executive shall
devote his time, attention and energies to the affairs of the Company.
|
| c. |
The
Executive shall report to, and be subject to the supervision of,
the Board
of Directors of the Company. The Executive shall diligently and faithfully
carry out the policies, programs and directions of the Board of
Directors
of
the Company. The Executive shall execute and discharge such duties
and
responsibilities as may be assigned to the Executive from time to
time by
the Board of Directors of the
Company.
|
| d. |
The
Executive will have a position on the Board of Directors for the
duration
of this agreement.
|
| e. |
The
Executive shall fully cooperate with other officers and executives
of the
Company.
|
| f. |
Subject
to the provisions of Section 2.c,
the Executive shall:
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| i. |
Be
responsible for the organization, implementation and operation of
the
Company’s activities as determined from time to time by the Board of
Directors;
|
| ii. |
Be
responsible for employing and supervising other employees of the
Company,
subject to the policies and procedures and direction of the Board
of
Directors;
|
| iii. |
Be
responsible for recommending to the Board for approval all contracts
between the Company and other entities for the provision of goods
and
services;
|
| iv. |
Generally
perform the usual duties and responsibilities of a Chairman and Chief
Operating Officer of the Company.
|
| 3. |
Compensation.
In consideration of the services rendered by the Executive, the Company
agrees to compensate the Executive as
follows:
|
| a. |
Base
Compensation.
The Executive’s annual base compensation initially shall be one hundred
and eighty thousand dollars ($180,000), being declared Compensation
shall
be payable in accordance with the salary policies of the Company
in effect
from time to time but no less frequently than monthly.
|
| b. |
Salary
Increases.
The Salary will increase on 11-1-07 to two hundred and fifty thousand
dollars ($250,000). The Company shall annually review the Executive’s
Performance and compensation. The Executives base compensation will
be
increased annually by not less than five percent (5%). Executive’s annual
base compensation shall not be reduced below the base compensation
as from
time to time adjusted, unless agreed upon in writing. Upon revenues
increasing to ($10,000,000) ten million dollars, the Executive salary
will
increase to ($300,000) three hundred thousand dollars per
year.
|
| c. |
Incentive
Bonuses.
The Board of Directors shall grant Executive such annual bonuses
as the
Board of Directors, in its discretion, may determine to be appropriate
in
light of the Company’s performance and the Executive’s performance and
contribution to the Company’s
success.
|
| d. |
Automobile
Allowance.
The Executive shall receive an automobile allowance not to exceed
$750
monthly for the purpose of leasing and maintaining insurance on an
automobile of the Executive’s
choice.
|
| e. |
Term
Life Insurance.
The Company shall purchase and provide with term life insurance coverage
after six months of employment, in the amount of $1,000,000: the
beneficiary, or beneficiaries, shall be named by the Executive. The
Executive agrees to permit the Company to purchase “Key man” term life
insurance coverage for the benefit of the Company at its sole
discretion.
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| f. |
Vacation
and Medical Leave.
The Executive shall have three (3) weeks of vacation at times mutually
convenient to Executive and the Company. Accrued vacation may not
be
carried over, but must be used in the annual period in which it accrues.
Continuation of compensation during periods of absence for medical
reasons
will be determined by Company
policy.
|
| g. |
Signing
Bonus. Company
will issue six-hundred thousand (600,000) shares of NextPhase Wireless,
Inc common stock and six-hundred thousand (600,000) options with
a five
year cashless exercise to the Executive, upon signing of this
agreement.
|
| h. |
Withholdings.
The Executive’s salary and all other payments and benefits shall be
subject to all deductions and withholdings mandated by federal, state
and
local laws and regulations.
|
| i. |
Expenses.
The Executive shall be reimbursed for all necessary and reasonable
expenses incurred by him in the execution of his duties and
responsibilities and in accordance with policies approved by the
Board or
Directors.
|
| j. |
Executive
shall submit to Company for review any proposed scientific and technical
articles and the text of any public speeches relating to work done
for
Company before they are released or delivered. Company has the right
to
disapprove and prohibit, or delete any parts of, such articles or
speeches
that might disclose Company's Trade Secrets or Confidential Information
or
otherwise be contrary to Company's business
interests.
|
| 4. |
Term
of Agreement. Unless
terminated as provided in Paragraph 5(c) “Termination for Cause” hereof,
the Term of this Employment Agreement shall continue for Five (5)
years
from November 5, 2007 to November 4, 2012, and shall be renewable
by the
mutual consent of the Parties. If written notice of non-renewal is
not
given by either Executive or Company not less than three (3) months
before
the expiration of the term of this Employment Agreement (or any renewal
term) the Employment Agreement shall be automatically renewed, from
time
to time, for subsequent five (5) year
terms.
|
| 5. |
Termination
of Employment Agreement.
|
| a. |
Notice
and Severance Pay. Either
party may terminate this Employment Agreement at any time upon sixty
(60)
days written notice provided that,
|
|
(i)
|
If
the Company should terminate such employment other than pursuant
to
subparagraph 5(c) “Termination for Cause”, the Executive shall be entitled
to “Severance Pay” an amount equal
to:
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| (a) |
The
full base Compensation that he was receiving immediately before his
termination for a Term of twelve (12) months according to the Employment
Agreement
|
| (b) |
Continuation
of Benefits afforded regular employees of the Company for the severance
pay period as defined in 5(a)
|
A
Bonus
each year of the severance pay period (pro rated for partial years) equal to
the
bonus received by the Executive for the year preceding the year in which
termination occurs.
|
(ii)
|
If
Executive is terminated following a “Change In Control” as set forth in
Paragraph 5(a), the Company shall pay Executive Severance Pay equal
to two
(2) times the Base Compensation that he is receiving immediately
before
his termination, and agrees to release all stock agreed to in section
“G”
Equity, in full.
|
| b. |
Change
in Control
means the earlier of:
|
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(i)
|
The
date on which any person or entity, or persons or entities acting
in
concert, shall acquire the beneficial ownership, as defined by the
Board
of Directors in its sole discretion, of Shares or other securities
having
more than sixty percent (60%) of the Voting Power then outstanding
other
than a transfer by reason of death to a deceased Shareholder’s
representatives or beneficiaries.
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(ii)
|
The
Shareholders of the Corporation approve the merger or consolidation
of the
Corporation with or into any other corporation, other than a merger
or
consolidation which would result in the voting securities of the
Corporation outstanding immediately prior thereto continuing to
represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity) at least 50% of the Voting
Power of
the Corporation or such surviving entity outstanding immediately
after
such merger or consolidation:
or
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(iii)
|
The
Shareholders of the Corporation approve a plan of complete liquidation
of
the Corporation or an agreement for the sale or disposition by
the
Corporation of all or substantially all of the Corporation’s
assets.
|
| b. |
Termination
for Cause.
Notwithstanding the preceding, the Company may terminate the Executive’s
employment for fraud, gross dishonesty, and non performance, acts
of
criminal misconduct, unwilling to follow direct requests from the
Board of
Directors or willful and material violation of the Employment Agreement
following reasonable written
warning
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| c. |
Death.
This Employment Agreement shall terminate automatically upon the
death of
the Executive, except section 3.
|
| d. |
Result
of Termination.
Upon termination of Executive’s employment pursuant to this Section,
Employer shall pay to Executive’s estate, on the Termination Date, a lump
sum payment of an amount equal to (i) all accrued and unused vacation
and
sick pay payable to Executive by Employer with respect to serviced
rendered by Executive to Employer through the Termination Date; and,
(ii)
if the Termination Date occurs during the Extended Term, an amount
equal
to twelve (12) months salary based upon the then existing salary
of
Executive, payable in the same manner as salary would have been paid
to
Executive had he continued to work for Employer hereunder. In addition
to
the foregoing, and notwithstanding the provisions of any other agreement
to the contrary, Employer shall continue to provide for the benefit
of
Executive’s family the medical benefits for twelve (12) months following
the Termination Date
|
| e. |
Disability.
This Employment Agreement shall terminate upon the Disability of
the
Executive. “Disability” refers to the Executive being unable to perform
substantially all the duties of his employment, as determined by
two
physicians who are not affiliates of the Company or the Executive,
one of
whom is selected by the Company and one of whom is selected by the
Executive.
|
| f. |
Termination
for Good Reason:
If Executive terminates his employment for “Good Reason”. The Executive
shall be entitled to the “Severance Pay” provided in subparagraph 5a
(ii).
|
Termination
of Employment for “Good Reason” shall include any of the following, unless the
Executive shall have expressly consented in writing to:
|
(i)
|
The
assignment of duties inconsistent with or a substantial alteration
in the
nature of, the Executives
responsibilities;
|
| (ii) |
A
material reduction in compensation or
benefits;
|
| (iii) |
A
relocation of the Executive outside the metropolitan of his current
residence;
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| (iv) |
Any
material breach by the Company of any provision of this
Agreement;
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| (v) |
Any
failure by the Company to obtain the assumption and performance of
this
Agreement by any successor (by merger or otherwise). Notwithstanding
the
foregoing, the aggregate amount of Severance Compensation paid to
the
Executive hereunder shall not include any amount that the Company
is
prohibited from deducting for federal income tax purposes by virtue
of
Section 280G of the Internal Revenue Code or any successor
plan.
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| 6. |
Ownership
of Developments.
|
| a. |
Ownership
of Work Product.
Company shall own all Work Product. Executive acknowledges that all
Work
Product is and shall be deemed work for hire by Executive as an employee
or Consultant of Company and owned by the Company. To further evidence
Company’s ownership rights and independent of this Agreement, Executive
shall execute and deliver to Company the Employee Intellectual Property
Acknowledgement, Assignment and Agreement attached hereto as Exhibit
A. To
the extent any Work Product is not, by operation of law, deemed work
made
for hire by Executive for Company (or if ownership of all right,
title and
interest of the intellectual property rights therein shall not otherwise
vest exclusively in Company), Executive agrees to assign all such
Work
Product to Company as set forth in the Employee Intellectual Property
Acknowledgement, Assignment and
Agreement.
|
| b. |
Clearance
Procedure for Developments Not Claimed by Company.
In the event Executive wishes to create or develop, on his own time
and
with his own resources, anything that may be considered Work Product,
but
Executive believes he should or desires to be entitled to the personal
benefit of such development or invention, Executive shall observe
the
following clearance procedure set forth in the Employee Intellectual
Property Acknowledgement, Assignment and Agreement attached hereto
as
Exhibit A.
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| 7. |
Confidentiality.
|
| a. |
Consequences
of Entrustment with Sensitive Information.
Executive recognizes that his position with Company requires considerable
responsibility and trust. Relying on Executive’s responsibilities
hereunder and undivided loyalty, Company expects to entrust Executive
with
highly sensitive confidential, restricted, and proprietary information
involving Trade Secrets and other intellectual property. Executive
should
recognize that it could prove very difficult to isolate these Trade
Secrets from business activities that Executive might consider pursuing
after termination of employment, and in some instances, Executive
may not
be able to compete with Company in certain ways because of the risk
that
Company's Trade Secrets might be compromised. Executive is responsible
for
protecting and preserving Company's proprietary rights for use only
for
Company's benefit, and these responsibilities may impose unavoidable
limitations on Executive’s ability to pursue some kinds of business
opportunities that might interest Executive during or after his
employment.
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| b. |
Restrictions
on Use and Disclosure of Trade Secrets.
Executive agrees not to use or disclose any Trade Secrets of Company
during his employment and for so long afterwards as the pertinent
information or data remain Trade Secrets, whether or not the Trade
Secrets
are in written or tangible form, except as required to perform any
duties
for Company.
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| c. |
Screening
of Public Releases of Information.
In addition, and without any intention of limiting Executive’s other
obligations under this Agreement in any way, Executive shall not,
during
his employment, reveal any nonpublic information concerning the technology
pertaining to the proprietary products and manufacturing processes
of
Company (particularly technology under current development or
improvement), unless Executive has obtained approval from Company
in
advance. In that connection, Executive shall submit to Company for
review
any proposed scientific and technical articles and the text of any
public
speeches relating to work done for Company before they are released
or
delivered. Company has the right to disapprove and prohibit, or delete
any
parts of, such articles or speeches that might disclose Company's
Trade
Secrets or Confidential Information or otherwise be contrary to Company's
business interests.
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| 8. |
Return
of Materials.
Upon the request of Company and, in any event, upon the termination
of
employment hereunder, Executive must return to Company and leave
at its
disposal all memoranda, notes, records, drawings, manuals, computer
programs, documentation, diskettes, computer tapes, and other documents
or
media pertaining to the business of Company or Executive’s specific duties
for Company (including all copies of such materials). Executive must
also
return to Company and leave at its disposal all materials involving
any
Trade Secrets of Company. This obligation applies to all materials
made or
compiled by Executive, as well as to all materials furnished to Executive
by anyone else in connection with employment
hereunder.
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| 9. |
Benefit.
This Agreement shall inure to the benefit of and shall be binding
upon the
parties hereto and their respective successors and assigns but the
obligations of the Executive hereunder may not be assigned by the
Executive and are personal to her. The Executive agrees that the
Company
may arrange for his employment through an employee-leasing firm provided
that his rights hereunder are not materially
reduced.
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| 10. |
Entire
Agreement.
This instrument contains the entire agreement of the parties and
supersedes any prior written or oral understandings or agreements.
It may
not be changed orally but only by an agreement in writing signed
by the
party against whom enforcement of any waiver, change, modification,
extension, or discharge is sought.
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| 11. |
Governing
Law.
This Agreement shall be governed by and interpreted in accordance
with the
substantive laws of the State of
California.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
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_________________________________
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By:
Xxxxxx
Xxxx, (the “Executive”)
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NEXTPHASE
WIRELESS, INC
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____________________________________
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By:
Xxxxxx Xxxxxxxxx, Chairman and COO
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________________________________
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By:
Xxxxxxx Xxxxx, Director
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