NPHS form 8k 11-05-2007 EX 10.2

EX. 10.2

    EMPLOYMENT
      AGREEMENT

     

    


     

    (Chairman,
      Chief Operating Officer)

     

    This
      EMPLOYMENT AGREEMENT is dated as of this 5th day
      of
      November, 2007 (“Date of Commencement”).between Thomas
      Hemingway (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 Chairman and COO, which shall be the Chief Operating
                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:

            


    

     

    
      	(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

            


    

     

    
      
        
        

      

      
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      	(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:

     

    
      	 	 	
              (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. 

            


    

     

    
      	(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

            


    

     

    
      	(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.

            


    

     

    
      	c.  	
              Death.
                This Employment Agreement shall terminate automatically upon the
                death of
                the Executive, except section 3.

            


    

     

    
      
        
        

      

      
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      	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;

            


    

     

    
      	(iv)    
                    	
              Any
                material breach by the Company of any provision of this
                Agreement;

            


    

     

    
      	(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.

            


    

     

    
      	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.

            


    

     

    
      	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.

            


    

     

    
      	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.

            


    

     

    
      	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.

            


    

     

    
      	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.

            


    

     

    
      	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.

            


    

     

    
      	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.

     

    

      
        	 	 	
                _________________________________

              
	 	 	
                By:
                  Thomas
                  Hemingway, (the “Executive”)

              
	 	 	 
	 	 	
                NEXTPHASE
                  WIRELESS, INC

              
	 	 	 
	 	 	
                ____________________________________

              
	 	 	
                 By:
                  Robert Ford, Director and CEO

              
	 	 	 
	 	 	
                ________________________________

              
	 	 	
                By:
                  Michael Jones, Director

              


      

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
        
          
          

        

        
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