ex10-2.htm


    EXHIBIT  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:

            


    

     

    
      	
              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.

            


    

     

    
      	
              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 Three (3) 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

            


    

     

    
      	
              (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.

            


    

     

    
      	
              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.

            


    

     

    
      	
              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.

            


    

     

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

     

    /s/
      Thomas
      Hemingway                                          


     By:
      Thomas Hemingway, (the “Executive”)

    


     

    NEXTPHASE
      WIRELESS, INC

    


    /s/
      Robert
      Ford                                                         


       By:
      Robert Ford, Director and CEO

     

    


     

       /s/
      Michael
      Jones                                                      


       By:  Michael
      Jones, Director