**Exhibit 10.2**

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**EMPLOYMENTAGREEMENT**

 

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

 

                In connection with Rivard’semployment with the Company, the Company and Rivard desire to enter into thisAgreement according to the terms and conditions set forth below.

 

**                NOW, THEREFORE,** the parties hereto hereby agree asfollows:

 

1.             **Employment Duties**.

 

                                a.             **General**.  The Company hereby agrees to employ Rivard,and Rivard hereby agrees to accept employment with the Company, on the termsand 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 Rivardshall, perform responsibilities normally incident to her position of GeneralCounsel, commensurate with her background, education, experience andprofessional standing.  The Company shallprovide Rivard with such office equipment, supplies, customary services andcooperation suitable for the performance of her duties.

 

**                               **c.**             Rivard’s Duties**.  Rivard shall devote such time as necessary tofully perform her services as General Counsel and shall report directly to the Company’sChief Executive Officer. The parties acknowledge that Rivard will perform her dutiesfrom the Company’s facility in Norcross, Georgia, and shall be required to travelto the Company’s other facilities and other locations as the Company’s businessdictates.

 

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

 

3.             **Compensation**.  Rivard shall be compensated as follows:

 

                                a.             **Salary**.  Rivard shall receive an annual salary of TwoHundred 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

 

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

 

                                b.             **BonusCompensation**.  During eachcalendar year in the Initial Term, Rivard may become eligible to participate inthe Company’s bonus programs based on performance objectives to be agreed to byRivard and the Company’s Chief Executive Officer.  Any bonus earned by Rivard in a particularcalendar year will be paid by the Company in the manner and time period agreedto by the parties.  The bonus shall beprorated should Rivard’s employment terminate prior to a full calendar year.

 

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

 

                                d.             **Benefits**.  Rivard shall be entitled to participate inany group plans or programs maintained by the Company for any employeesrelating to group health, disability, life insurance and other related benefitsas in effect from time to time subject to the terms and conditions of suchplans. Rivard shall also be entitled to director and officer insurance in suchamounts and coverage and such indemnification provisions as are afforded otherofficers and directors of the Company.  Theforegoing benefits shall be paid by the Company.

 

                                e.             **Expenses**.  The Company shall reimburse Rivard for her normaland reasonable expenses incurred for travel, entertainment and similar items inpromoting and carrying out the Company’s business in accordance with the Company’sgeneral policy as adopted from time to time. In addition, Rivard shall be reimbursed for the reasonable costsassociated with cellular telephone usage and shall be entitled to reimbursementfor such reasonable continuing professional education, memberships andcertifications as are deemed normal and appropriate for executive officers asdetermined by the Company.  As acondition of payment or reimbursement, Rivard agrees to provide the Companywith copies of all available invoices and receipts, and otherwise account tothe Company in sufficient detail to allow the Company to claim an income taxdeduction for such paid item, if such item is deductible.  Reimbursements shall be made on a monthly ormore frequent basis in accordance with the Company’s reimbursement policiesthen in effect.

 

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

 

5.             **Termination**.

 

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

 

 

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                                b.             **Termination for Cause**.  The Company may immediately terminate Rivard’semployment at any time for Cause. Termination for Cause shall be effective from the receipt of writtennotice thereof to Rivard specifying the grounds for termination.  “**Cause**” shall bedeemed to include:  (i) Rivard’s willfulmisconduct, or failure to perform, her material duties provided that Rivard isgiven written notice setting forth with reasonable specificity such misconductor failure and Rivard fails to correct such behavior within 30 days followingreceipt of notice; (ii) Rivard’s conviction of a felony offense or convictionfor any unlawful act which would be materially detrimental to the Company’sreputation, 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, includingher obligations under Section 8(a), or breach of her employee proprietaryinformation agreement. The Company’s exercise of its rights to terminate with Causeshall be without prejudice to any other remedies it may be entitled at law, inequity or under this Agreement.

 

                                c.             **Termination Upon Death orDisability**.  This Agreementshall automatically terminate upon Rivard’s death.  In addition, if any disability or incapacityof Rivard to perform her duties as the result of any injury, sickness, orphysical, 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 Companymay terminate Rivard’s employment upon written notice.  Payment of salary to Rivard during any sickleave shall only be to the extent that Rivard has accrued paid time-off.

 

                6.             **SeverancePayment Upon Termination of Employment**.  The severance payment set forth below shallbe in addition to any amounts owed to Rivard as earned but unpaid wages throughthe date of termination and accrued but unused vacation through the date oftermination.

 

a.             **Termination Without Cause**.  If the Company terminates this Agreementwithout Cause prior to the end of the Initial Term, the Company shall pay Rivarda severance payment equal to six months of her annual salary (without bonus),payable over such period in accordance with the Company’s usual payrollpractices.  For the avoidance of doubt,the six months of severance provided for in this Section 6(a) shall include the60 days of notice required by Section 5(a) regarding termination without Cause.

 

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

 

7.             **Compensation Upon a Changeof Control**.

 

a.             **Change of ControlTermination**.  Upon a Change ofControl Termination (as defined below), Rivard shall be entitled to thefollowing 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 ofControl**” means the occurrence of any of the following events:

 

(i)            any “person” (as such term is usedin 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 moreof the then outstanding shares of the Company’s common stock or the totalvoting 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 otherdisposition (including in whole or in part through licensing arrangement(s)) ofall or substantially all of the Company’s assets, other than sales, otherdispositions or licenses of assets made to a parent or a wholly-ownedsubsidiary of the Company, or an entity under common control with the Company;

 

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(iii)          theconsummation of a reorganization, merger, statutory share exchange orconsolidation or similar transaction involving the Company or the acquisitionof assets or stock of another entity by the Company or any of its subsidiaries,or a series of related such transactions (each, a “**BusinessCombination**”), in each case unless following such BusinessCombination (A) the voting securities of the Company outstanding immediatelyprior thereto continue to represent (either by remaining outstanding or bybeing converted into voting securities of the surviving entity or any entity (a“**Parent**”) that, as a result of suchtransaction, owns the Company or the surviving entity or all or substantiallyall of the Company’s or surviving entity’s assets directly or through one ormore subsidiaries) at least 50% of the total voting power represented by the Company’svoting securities or such surviving entity or Parent outstanding immediatelyafter such Business Combination; and (B) no person (excluding any entityresulting from such Business Combination or a Parent or any employee benefitplan (or related trust) of the Company or such entity resulting from suchBusiness Combination or Parent) beneficially owns, directly or indirectly, 50%or more of, respectively, the then-outstanding shares of common stock of theentity resulting from such Business Combination or the total voting power ofthe then-outstanding voting securities of such entity, except to the extentthat the ownership in excess of 50% existed prior to the Business Combination; or

 

(iv)          approval by the Company’s stockholdersof a complete liquidation or dissolution of the Company other than in thecontext of a transaction or series of related transactions that would notconstitute a Change of Control under clause (iii) above.

 

e.             For the purposes of this Section, a “**Change of Control Termination**” shall mean a termination ofemployment within one year following a Change of Control where the Company or aparty effecting a Change of Control of the Company terminates Rivard’s employmentwithout Cause, other than as the result of Rivard’s death or disability.

 

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

 

8.             **Corporate Opportunities**.

 

                                a.             **Duty to Notify**.  In the event that during the Term Rivard shallbecome aware of any material and significant business opportunity directlyrelated to any of the Company’s significant businesses, Rivard shall promptlynotify the Company’s Board of Directors of such opportunity.  Rivard shall not appropriate for herself orfor any other person other than the Company, or any affiliate of the Company,any such opportunity unless, as to any particular opportunity, the Board ofDirectors fails to take appropriate action within 90 days.  Rivard’s duty to notify the Company and torefrain from appropriating all such opportunities for 90 days shall neither belimited by, nor shall such duty limit, the application of the general law of Georgiarelating 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 Companyof, or so appropriates, any such opportunity without the express writtenconsent of the Company, Rivard shall be deemed to have violated the provisionsof this Section notwithstanding (i) the capacity in which Rivard shall haveacquired such opportunity; or (ii) the probable success in the Company’s handsof such opportunity.

 

9.             **Miscellaneous**.

 

                                a.             **Entire Agreement**.  This Agreement constitutes the entireagreement and understanding between the parties with respect to the subjectmatters herein, and supersedes and replaces any prior agreements andunderstandings, whether oral or written between them with respect to suchmatters.  The provisions of thisAgreement may be waived, altered, amended or repealed in whole or in part onlyupon the written consent of both parties to this Agreement.

 

                                b.             **No Implied Waivers**.  The failure of either party at any time torequire performance by the other party of any provision hereof shall not affectin any way the right to require such performance at any time thereafter, norshall the waiver by either party of a breach of any provision hereof be takenor held to be a waiver of any subsequent breach of the same provision or anyother provision.

 

                                c.             **Personal Services**.  It is understood that the services to beperformed by Rivard hereunder are personal in nature and the obligations toperform such services and the conditions and covenants of this Agreement cannotbe assigned by Rivard.  This Agreementshall inure to the benefit of and bind the successors and assigns of the Company.

 

                                d.             **Severability**.  If for any reason any provision of thisAgreement shall be determined to be invalid or inoperative, the validity andeffect of the other provisions hereof shall not be affected thereby.

 

                                e.             **Applicable Law**.  This Agreement shall be governed by andconstrued in accordance with the laws of the State of Georgia without regard toconflict of law principles.

 

                                f.              **Notices**.  All notices, requests, demands, instructionsor other communications required or permitted to be given under this Agreementshall be in writing and shall be deemed to have been duly given upon delivery,if delivered personally, or if given by prepaid telegram, or mailedfirst-class, postage prepaid, registered or certified mail, return receiptrequested, shall be deemed to have been given 72 hours after such delivery, if addressedto the other party at the addresses as set forth on the signature pagebelow.  Either party hereto may changethe address to which such communications are to be directed by giving writtennotice to the other party hereto of such change in the manner above provided.

 

 

 

 

 

 

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IN WITNESS WHEREOF, theparties 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 EMPLOYMENTAGREEMENT****

 

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