EMPLOYMENT AGREEMENT (Chief Financial Officer)
EXHIBIT
10.3
(Chief
Financial Officer)
This
EMPLOYMENT AGREEMENT is dated as of this 5th day of
November, 2007 (“Date of Commencement”).between Xxxxx
Xxxxx (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:
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1.
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Employment.
The Company hereby agrees to employ the Executive, and the Executive
hereby accepts such employment, upon the terms and conditions set
forth
herein.
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2.
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Duties
and Responsibilities of the Executive. During the term of
his employment, the Executive shall execute his duties and
responsibilities as follows:
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a.
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The
Executive shall diligently and faithfully serve the Company in the
capacity of CFO, which shall be the Chief Financial Officer of the
Company
responsible for the operations of the
Company.
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b.
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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.
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c.
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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.
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d.
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The
Executive will have a position on the Board of Directors for the
duration
of this agreement.
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e.
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The
Executive shall fully cooperate with other officers and executives
of the
Company.
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f.
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Subject
to the provisions of Section 2.c, the Executive
shall:
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i.
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Be
responsible for the organization, implementation and operation of
the
Company’s activities as determined from time to time by the Board of
Directors;
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ii.
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Be
responsible for employing and supervising other employees of the
Company,
subject to the policies and procedures and direction of the Board
of
Directors;
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iii.
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Be
responsible for recommending to the Board for approval all contracts
between the Company and other entities for the provision of goods
and
services;
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iv.
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Generally
perform the usual duties and responsibilities of a Chairman and Chief
Operating Officer of the Company.
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3.
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Compensation. In
consideration of the services rendered by the Executive, the Company
agrees to compensate the Executive as
follows:
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a.
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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.
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b.
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Salary
Increases. The Salary will increase on 12-1-07 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.
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c.
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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.
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d.
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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.
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e.
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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.
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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.
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g.
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Signing
Bonus. Company will issue two-hundred and fifty thousand (250,000)
shares of NextPhase Wireless, Inc common stock and two-hundred and
fifty
thousand (250,000) options with a five year cashless exercise to
the
Executive, upon signing of this
agreement.
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h.
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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.
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i.
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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.
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j.
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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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4.
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Term
of Agreement. Unless terminated as provided in
Paragraph 5(c) “Termination for Cause” hereof, the Term of this Employment
Agreement shall continue for Three (3) years from November 5, 2007
to
November 4, 2010, 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 three (3) year terms.
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5.
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Termination
of Employment Agreement.
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a.
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Notice
and Severance Pay. Either party may terminate this
Employment Agreement at any time upon sixty (60) days written notice
provided that,
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(i)
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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)
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The
full base Compensation that he was receiving immediately before his
termination for a Term of twelve (12) months according to the Employment
Agreement
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(b)
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Continuation
of Benefits afforded regular employees of the Company for the severance
pay period as defined in 5(a)
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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)
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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)
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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)
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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.
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b.
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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.
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Death. This
Employment Agreement shall terminate automatically upon the death
of the
Executive, except section 3.
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d.
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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
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e.
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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.
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f.
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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).
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Termination
of Employment for “Good Reason” shall include any of the following, unless the
Executive shall have expressly consented in writing to:
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(i)
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The
assignment of duties inconsistent with or a substantial alteration
in the
nature of, the Executives
responsibilities;
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(ii)
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A
material reduction in compensation or
benefits;
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(iii)
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A
relocation of the Executive outside the metropolitan of his current
residence;
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(iv)
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Any
material breach by the Company of any provision of this
Agreement;
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(v)
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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.
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Ownership
of Developments.
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a.
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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.
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b.
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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.
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Confidentiality.
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a.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
/s/
Xxxxx
Xxxxx
By:
Xxxxx Xxxxx, (the “Executive”)
NEXTPHASE
WIRELESS, INC
/s/
Xxxxxx
Xxxx
By:
Xxxxxx Xxxx, Director and CEO
/s/
Xxxxxx
Xxxxxxxxx
By:
Xxxxxx Xxxxxxxxx, Chairman and COO
/s/
Xxxxxxx
Xxxxx
By: Xxxxxxx
Xxxxx, Director
