Exhibit 10.2





 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”)
is by and between Vyyo Inc., a
Delaware corporation (the “Company”), and Tashia L. Rivard (“Rivard”).


 


                In connection with Rivard’s
employment with the Company, the Company and Rivard desire to enter into this
Agreement according to the terms and conditions set forth below.


 


                NOW, THEREFORE, the parties hereto hereby agree as
follows:


 


1.             Employment Duties.


 


                                a.             General.  The Company hereby agrees to employ Rivard,
and Rivard hereby agrees to accept employment with the Company, on the terms
and conditions set forth below, which change shall be effective as of September 1, 2007 (the “Effective Date”).


 


                                b.             Company’s Duties.  The Company shall allow Rivard to, and Rivard
shall, perform responsibilities normally incident to her position of General
Counsel, commensurate with her background, education, experience and
professional standing.  The Company shall
provide Rivard with such office equipment, supplies, customary services and
cooperation suitable for the performance of her duties.


 


                                c.             Rivard’s Duties.  Rivard shall devote such time as necessary to
fully perform her services as General Counsel and shall report directly to the Company’s
Chief Executive Officer. The parties acknowledge that Rivard will perform her duties
from the Company’s facility in Norcross, Georgia, and shall be required to travel
to the Company’s other facilities and other locations as the Company’s business
dictates.


 


2.             Term.  The initial term of this Agreement is two
years (the “Initial  Term”).  Thereafter, this Agreement may be renewed by Rivard
and the Company on such terms as the parties may agree to in writing.  Absent written notice of termination of this
Agreement given by one party to the other party not less than 30 days prior to
the end of the Initial Term or any Renewal Term (as defined below), this
Agreement will be automatically renewed for a one-year extension (each such
extension a “Renewal Term” and the Initial Term
together with any and all Renewal Terms, the “Term”).  Notwithstanding the foregoing, this Agreement
is subject to earlier termination as provided herein.


 


3.             Compensation.  Rivard shall be compensated as follows:


 


                                a.             Salary.  Rivard shall receive an annual salary of Two
Hundred Twenty Thousand Dollars ($220,000). 
The Company agrees to review the salary on or before December 31, 2008,
and thereafter at the end of each calendar year during the Term based upon Rivard’s


 

















 


services and the financial results of the Company,
and to make such changes as may be determined appropriate in the sole
discretion of the Company’s Compensation Committee or Board of Directors.  Rivard’s annual salary shall be payable on a
semi-monthly basis, in accordance with the Company’s usual payroll practices.


 


                                b.             Bonus
Compensation.  During each
calendar year in the Initial Term, Rivard may become eligible to participate in
the Company’s bonus programs based on performance objectives to be agreed to by
Rivard and the Company’s Chief Executive Officer.  Any bonus earned by Rivard in a particular
calendar year will be paid by the Company in the manner and time period agreed
to by the parties.  The bonus shall be
prorated should Rivard’s employment terminate prior to a full calendar year.


 


                                c.             Paid Time-Off.  Rivard shall accrue paid time-off in
accordance with the terms of the Company’s paid time-off policy.  Rivard shall be compensated at her usual rate
of base compensation during any such paid time-off.  Rivard shall be entitled to paid holidays as
generally given by the Company and shall receive sick leave or disability leave
in accordance with the terms of the Company’s standard sick leave or disability
leave policy.


 


                                d.             Benefits.  Rivard shall be entitled to participate in
any group plans or programs maintained by the Company for any employees
relating to group health, disability, life insurance and other related benefits
as in effect from time to time subject to the terms and conditions of such
plans. Rivard shall also be entitled to director and officer insurance in such
amounts and coverage and such indemnification provisions as are afforded other
officers and directors of the Company.  The
foregoing benefits shall be paid by the Company.


 


                                e.             Expenses.  The Company shall reimburse Rivard for her normal
and reasonable expenses incurred for travel, entertainment and similar items in
promoting and carrying out the Company’s business in accordance with the Company’s
general policy as adopted from time to time. 
In addition, Rivard shall be reimbursed for the reasonable costs
associated with cellular telephone usage and shall be entitled to reimbursement
for such reasonable continuing professional education, memberships and
certifications as are deemed normal and appropriate for executive officers as
determined by the Company.  As a
condition of payment or reimbursement, Rivard agrees to provide the Company
with copies of all available invoices and receipts, and otherwise account to
the Company in sufficient detail to allow the Company to claim an income tax
deduction for such paid item, if such item is deductible.  Reimbursements shall be made on a monthly or
more frequent basis in accordance with the Company’s reimbursement policies
then in effect.


 


                4.             Confidentiality
and Competitive Activities. 
Rivard agrees to execute the Company’s current form of  employee proprietary information and
inventions agreement, which will include provisions related to confidentiality
of Company information, assignment of inventions, non-competition and
non-solicitation of customers and employees.


 


5.             Termination.


 


                                a.             Termination without Cause;
Voluntary Termination.  The Company
may terminate this Agreement and Rivard’s employment hereunder without Cause
(as defined below) and with or without prior review or warning by providing 60
days prior written notice to Rivard. 
Rivard may voluntarily terminate her employment at any time upon 60
days’ prior written notice to the Company.


 


 


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                                b.             Termination for Cause.  The Company may immediately terminate Rivard’s
employment at any time for Cause. 
Termination for Cause shall be effective from the receipt of written
notice thereof to Rivard specifying the grounds for termination.  “Cause” shall be
deemed to include:  (i) Rivard’s willful
misconduct, or failure to perform, her material duties provided that Rivard is
given written notice setting forth with reasonable specificity such misconduct
or failure and Rivard fails to correct such behavior within 30 days following
receipt of notice; (ii) Rivard’s conviction of a felony offense or conviction
for any unlawful act which would be materially detrimental to the Company’s
reputation, or a material act of dishonesty, moral turpitude, fraud,
embezzlement, misappropriation or financial dishonesty against the Company; or
(iii) Rivard’s breach of any material provision of this Agreement, including
her obligations under Section 8(a), or breach of her employee proprietary
information agreement. The Company’s exercise of its rights to terminate with Cause
shall be without prejudice to any other remedies it may be entitled at law, in
equity or under this Agreement.


 


                                c.             Termination Upon Death or
Disability.  This Agreement
shall automatically terminate upon Rivard’s death.  In addition, if any disability or incapacity
of Rivard to perform her duties as the result of any injury, sickness, or
physical, mental or emotional condition continues for a period of 30 days
(excluding any accrued paid time-off) out of any 120 calendar day period, the Company
may terminate Rivard’s employment upon written notice.  Payment of salary to Rivard during any sick
leave shall only be to the extent that Rivard has accrued paid time-off.


 


                6.             Severance
Payment Upon Termination of Employment.  The severance payment set forth below shall
be in addition to any amounts owed to Rivard as earned but unpaid wages through
the date of termination and accrued but unused vacation through the date of
termination.


 


a.             Termination Without Cause.  If the Company terminates this Agreement
without Cause prior to the end of the Initial Term, the Company shall pay Rivard
a severance payment equal to six months of her annual salary (without bonus),
payable over such period in accordance with the Company’s usual payroll
practices.  For the avoidance of doubt,
the six months of severance provided for in this Section 6(a) shall include the
60 days of notice required by Section 5(a) regarding termination without Cause.


 


b.             Execution of Release.  Rivard agrees that Rivard’s right to receive
any severance payment is conditioned on the prior execution by Rivard of a
binding general release (in such form as the Company may determine) of any and
all claims against the Company and any affiliates, and their respective officers,
directors, employees or other agents.


 


7.             Compensation Upon a Change
of Control.


 


a.             Change of Control
Termination.  Upon a Change of
Control Termination (as defined below), Rivard shall be entitled to the
following compensation:


 


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                                                                                (i)            Cash Payment.  In lieu of any severance payment described above in Section 6, payment in cash of an amount equal to the sum of one times Rivard’s then current annual salary as in effect for the calendar year in which the Change of Control Termination occurs, payable in accordance with the Company’s usual payroll practices.


 


                                                                                (ii)           Stock Options.  Any stock options granted to Rivard that are outstanding immediately prior to but are not vested as of the date of the Change of Control Termination shall become 100% vested as of the date of the Change of Control Termination.
 
                                                                                (iii)          Benefits.  For a period of one year following Rivard’s date of termination, the continuation of the same or comparable life, health, disability, vision, hospitalization, dental and other insurance coverage as Rivard was receiving immediately prior to the Change of Control.
 
b.             Offer of Employment with Successor.  If upon a Change of Control Rivard is offered employment by the Company’s successor with responsibilities substantially similar to that contemplated by this Agreement and Rivard does not accept such offer, 33.3% of the stock options granted to Rivard that are outstanding immediately prior to but are not vested as of the date of the Change of Control shall become vested as of the date of the Change of Control.
 
c.             Employment with Successor.  If upon a Change of Control Rivard accepts employment with the Company’s successor with responsibilities substantially similar to that contemplated by this Agreement, 33.3% of the stock options granted to Rivard that are outstanding immediately prior to but are not vested as of the date of the Change of Control shall become vested as of the date of the Change of Control. If Rivard terminates her employment for Good Reason (as defined below) with the Company’s successor on or after the 6-month anniversary of commencement of such employment, all remaining stock options granted to Rivard that are outstanding immediately prior to but are not vested as of the date of her termination for Good Reason shall become vested as of the date of such termination.
 


d.             For the purposes of this Section, “Change of
Control” means the occurrence of any of the following events:


 


(i)            any “person” (as such term is used
in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended)
becomes the “beneficial owner” (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing 50% or more
of the then outstanding shares of the Company’s common stock or the total
voting power represented by the Company’s then outstanding voting securities
(other than pursuant to a Business Combination which is covered by clause (iii)
below);


 


(ii)           the consummation of the sale or other
disposition (including in whole or in part through licensing arrangement(s)) of
all or substantially all of the Company’s assets, other than sales, other
dispositions or licenses of assets made to a parent or a wholly-owned
subsidiary of the Company, or an entity under common control with the Company;


 


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(iii)          the
consummation of a reorganization, merger, statutory share exchange or
consolidation or similar transaction involving the Company or the acquisition
of assets or stock of another entity by the Company or any of its subsidiaries,
or a series of related such transactions (each, a “Business
Combination”), in each case unless following such Business
Combination (A) the voting securities of the Company outstanding immediately
prior thereto continue to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity or any entity (a
“Parent”) that, as a result of such
transaction, owns the Company or the surviving entity or all or substantially
all of the Company’s or surviving entity’s assets directly or through one or
more subsidiaries) at least 50% of the total voting power represented by the Company’s
voting securities or such surviving entity or Parent outstanding immediately
after such Business Combination; and (B) no person (excluding any entity
resulting from such Business Combination or a Parent or any employee benefit
plan (or related trust) of the Company or such entity resulting from such
Business Combination or Parent) beneficially owns, directly or indirectly, 50%
or more of, respectively, the then-outstanding shares of common stock of the
entity resulting from such Business Combination or the total voting power of
the then-outstanding voting securities of such entity, except to the extent
that the ownership in excess of 50% existed prior to the Business Combination; or


 


(iv)          approval by the Company’s stockholders
of a complete liquidation or dissolution of the Company other than in the
context of a transaction or series of related transactions that would not
constitute a Change of Control under clause (iii) above.


 


e.             For the purposes of this Section, a “Change of Control Termination” shall mean a termination of
employment within one year following a Change of Control where the Company or a
party effecting a Change of Control of the Company terminates Rivard’s employment
without Cause, other than as the result of Rivard’s death or disability.


 


f.              For
the purposes of this Section, “Good Reason”
shall exist if Rivard terminates her employment within 60 days of the
occurrence of any of the following:  (i)
a material adverse change in her position or title; or (ii) a reduction in her
base salary from that provided in this Agreement unless the reduction affects
all employees generally.


 


8.             Corporate Opportunities.


 


                                a.             Duty to Notify.  In the event that during the Term Rivard shall
become aware of any material and significant business opportunity directly
related to any of the Company’s significant businesses, Rivard shall promptly
notify the Company’s Board of Directors of such opportunity.  Rivard shall not appropriate for herself or
for any other person other than the Company, or any affiliate of the Company,
any such opportunity unless, as to any particular opportunity, the Board of
Directors fails to take appropriate action within 90 days.  Rivard’s duty to notify the Company and to
refrain from appropriating all such opportunities for 90 days shall neither be
limited by, nor shall such duty limit, the application of the general law of Georgia
relating to the fiduciary duties of an agent or employee.


 


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                                b.             Failure to Notify.  In the event that Rivard fails to notify the Company
of, or so appropriates, any such opportunity without the express written
consent of the Company, Rivard shall be deemed to have violated the provisions
of this Section notwithstanding (i) the capacity in which Rivard shall have
acquired such opportunity; or (ii) the probable success in the Company’s hands
of such opportunity.


 


9.             Miscellaneous.


 


                                a.             Entire Agreement.  This Agreement constitutes the entire
agreement and understanding between the parties with respect to the subject
matters herein, and supersedes and replaces any prior agreements and
understandings, whether oral or written between them with respect to such
matters.  The provisions of this
Agreement may be waived, altered, amended or repealed in whole or in part only
upon the written consent of both parties to this Agreement.


 


                                b.             No Implied Waivers.  The failure of either party at any time to
require performance by the other party of any provision hereof shall not affect
in any way the right to require such performance at any time thereafter, nor
shall the waiver by either party of a breach of any provision hereof be taken
or held to be a waiver of any subsequent breach of the same provision or any
other provision.


 


                                c.             Personal Services.  It is understood that the services to be
performed by Rivard hereunder are personal in nature and the obligations to
perform such services and the conditions and covenants of this Agreement cannot
be assigned by Rivard.  This Agreement
shall inure to the benefit of and bind the successors and assigns of the Company.


 


                                d.             Severability.  If for any reason any provision of this
Agreement shall be determined to be invalid or inoperative, the validity and
effect of the other provisions hereof shall not be affected thereby.


 


                                e.             Applicable Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Georgia without regard to
conflict of law principles.


 


                                f.              Notices.  All notices, requests, demands, instructions
or other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given upon delivery,
if delivered personally, or if given by prepaid telegram, or mailed
first-class, postage prepaid, registered or certified mail, return receipt
requested, shall be deemed to have been given 72 hours after such delivery, if addressed
to the other party at the addresses as set forth on the signature page
below.  Either party hereto may change
the address to which such communications are to be directed by giving written
notice to the other party hereto of such change in the manner above provided.


 


 


 


 


 


 


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IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written above.


 


 


	
  VYYO INC.

  	
  TASHIA RIVARD

  	
   

  
	
  188 Inverness Drive
  West, Suite 140

  	
  6625 The Corners
  Parkway, Suite 100

  	
   

  
	
  Englewood, Colorado 80112

  	
  Norcross, Georgia 30092

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wayne H. Davis

  	
   

  	
  /s/ Tashia L. Rivard

  	
   

  
	
   

  	
  Wayne H. Davis, Chief Executive Officer

  	
  (Signature)

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Date: November 8, 2007

  	
  Date: November 8, 2007

  	
   

  
	
   

  	
   

  	
   

  
					



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


**SIGNATURE PAGE TO RIVARD EMPLOYMENT
AGREEMENT**


 


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