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Exhibit 10.8    
    


 
 

SEPARATION AGREEMENT AND RELEASE  
    


        This Separation Agreement and Release (the "Agreement") is between VYYO INC. ("Vyyo") and MICHAEL CORWIN ("Mr. Corwin"). The terms "Michael Corwin"
and "Mr. Corwin" include Michael Corwin and any of his heirs, executors, beneficiaries and assigns. The terms "Vyyo Inc." and "Vyyo" include all affiliates, subsidiaries, predecessor and
successor corporations of Vyyo Inc., and any of its present, former and future stockholders, agents, officers, directors and employees. This Agreement shall be effective on the date which is
eight days after it is signed by both parties (the "Effective Date"). 


 
 

RECITALS  
    



•    Mr. Corwin
has been employed by Vyyo pursuant to that Employment Agreement dated January 1, 2000, as amended by that letter dated May 13, 2005
(collectively the "Employment Agreement"). 


•    Mr. Corwin
and Vyyo agree that the Employment Agreement is hereby terminated on and as of January 31, 2005 (the "Termination Date"). 


•    Even
though Mr. Corwin has made no claims against Vyyo, Mr. Corwin and Vyyo desire to resolve any and all claims and potential claims Mr. Corwin may
have against Vyyo. 




        ACCORDINGLY,
the parties agree as follows: 


        1.    Termination of Employment.    



        (a)   Except
as set forth herein, Mr. Corwin's employment with Vyyo shall terminate on the Termination Date. 


        (b)   As
of the Termination Date, and except as provided herein, Mr. Corwin's duties at Vyyo shall cease. Effective as of that date Mr. Corwin shall also cease
to be a director, officer, or employee, as applicable, of Vyyo (except as provided in this Agreement) and any Vyyo subsidiaries of which he is a director, officer, or employee. 




        2.    Separation Consideration and Consultancy Engagement.    



        (a)    Severance.    On the Effective Date, or as soon as practicable thereafter, Vyyo will pay to Mr. Corwin
as severance the amount of One Hundred Twenty Five Thousand Dollars ($125,000.00), which amount constitutes six (6) month's salary, subject to applicable tax withholding and in accordance with
Vyyo's usual payroll practices. 


        (b)    Reimbursable Expenses.    To the extent Mr. Corwin has not already done so, Mr. Corwin will
promptly submit to Vyyo, and Vyyo will promptly reimburse Mr. Corwin for, all of Mr. Corwin's business expenses (incurred consistent with Vyyo's policies in effect on the Termination
Date) attributable to the period on or before the Termination Date. 


        (c)    Consultancy Engagement.    Commencing February 1, 2006 and continuing until January 31, 2007 (the
"Consulting Period"), Mr. Corwin shall be engaged by Vyyo as a consultant to perform such services as shall be agreed to, in writing, by and between Vyyo and Mr. Corwin. In consideration
of Mr. Corwin's consulting services hereunder, Vyyo shall pay to Mr. Corwin One Thousand Two Hundred Ninety Five and Fifty-five Hundredths Dollars ($1,295.55) per month,
constituting the cost of health insurance premiums for the Consulting Period (which amount may be paid directly to the health insurance provider in Vyyo's sole discretion), subject to applicable tax
and in accordance with Vyyo's usual payroll practices. 



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        (d)    Options Status.    The vesting of 79,168 of Mr. Corwin's outstanding stock options (being the options
remaining unvested as of January 31, 2006 from grant nos. 923 and 924) shall be accelerated, so that, when combined with his other vested options, as of the Termination Date Mr. Corwin
shall hold fully-vested options to purchase 337,617 shares of Vyyo common stock (the "Vested Options"). The vesting of all remaining outstanding options held by Mr. Corwin shall immediately
cease, and Mr. Corwin shall forfeit any and all rights to such options. For the avoidance of doubt, Mr. Corwin will be allowed to exercise the Vested Options (and only the Vested
Options) as set forth above no later than ninety (90) days after the last day of the Consulting Period. In the event of any inconsistency between any Stock Option Agreement and this Agreement,
the provisions of this Agreement shall control. 




        3.    Employee Proprietary Information and Inventions Agreement.    Mr. Corwin acknowledges that he is bound by
the Employee Proprietary Information and Inventions Agreement executed in connection with Mr. Corwin's commencement of employment, and as a result of such employment with Vyyo Mr. Corwin
had access to Vyyo's proprietary information and trade secrets. Mr. Corwin shall hold all such proprietary information and trade secrets in strictest confidence and shall not make use of such
proprietary information and trade secrets on behalf of anyone. Mr. Corwin further confirms that he has delivered to Vyyo all documents and data of any nature containing or pertaining to such
proprietary information and trade secrets and that he has not taken with him any such documents or data or any reproduction thereof. 


        4.    Release.    Except as set forth in the second paragraph of this Section, Mr. Corwin and Vyyo (each, a
"Releasing Party") hereby completely release and forever discharge the other party hereto (a "Released Party") from any and all claims, rights, demands, actions, obligations, liabilities and causes of
action of every kind and character, known or unknown, mature or unmatured, which the Releasing Party may now have or has ever had, whether based on tort, contract (express or implied), or any federal,
state or local law, statute or regulation (collectively, the "Released Claims"). Released Claims shall include all statutory, common law, constitutional and other claims, including but not limited to:
any claims arising under Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. Section 1981, the Americans with Disabilities Act, the Age Discrimination in
Employment Act, the Employee Retirement Income Security Act, the California Fair Employment and Housing Act, the California Labor and Civil Codes, the California Constitution, the Federal
Rehabilitation Act of 1973, the Federal Family and Medical Leave Act, the California Family Rights Act, the federal Worker Adjustment and Retraining Notification Act, the California Worker Adjustment
and Retraining Notification Act as well as any claims asserting wrongful or constructive termination or discharge; discrimination; retaliation; harassment; breach of contract, express or implied;
breach of the covenant of good faith and fair dealing, express or implied; defamation; misrepresentation; fraud; negligent or intentional infliction of emotional distress; any claims under federal,
state or municipal statute or ordinance; or any other claim of any sort. Released Claims also shall include, but not be limited to, claims for wages or other compensation, severance pay, bonuses, sick
leave, vacation pay, life or health insurance or any other fringe benefit. The Releasing Party likewise releases the Released Party from any and all obligations for attorneys' fees incurred in regard
to the above claims or otherwise. 


        Notwithstanding
the foregoing, Released Claims shall not include: (a) any claims based on obligations created by or reaffirmed in this Agreement; (b) any claims based on
any indemnification obligations created by or reaffirmed in any indemnification agreement between the parties hereto, in the Bylaws or Certificate of Incorporation of Vyyo, or under applicable state
laws and regulations; or (c) any claims, rights, demands, actions, obligations, liabilities and causes of action of every kind and character which Vyyo has or may have in the future as a result
of the gross negligence or willful misconduct of Mr. Corwin. Moreover, the release in this Agreement shall not interfere with Mr. Corwin's ability to participate in any manner in an
investigation, proceeding or hearing conducted by the federal Equal Employment Opportunity Commission. 


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        5.    Release Applies to All Unknown or Unanticipated Damages.    The parties agree as further consideration and
inducement for this compromise settlement that this Agreement shall apply to all unknown and unanticipated damages, including all future claims or causes of action which may be alleged as a result of
all acts and omissions in any way related to Mr. Corwin's employment with Vyyo, or otherwise, subject to the exclusions from the definition of Released Claims set forth in Section 4
above. 


        6.    Section 1542 Waiver.    The parties understand and agree that the Released Claims include not only claims
presently known to the Releasing Party, but also include all unknown and unanticipated claims, rights, demands, actions, obligations, liabilities and causes of action of every kind and character that
would otherwise come within the scope of the Released Claims as described in this Agreement. The Releasing Party understands that he or it may hereafter discover facts different from what he or it now
believes to be true, which if known could have materially affected this Agreement, but he or it nevertheless waives any claims or rights based on different or additional facts. The Releasing Party
knowingly and voluntarily waives any and all rights or benefits that he or it may now have, or in the future may have, under the terms of Section 1542 of the California Civil Code, which
provides as follows: 




A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.  





        The only Released Claims not waived and released under this Section are those concerning health insurance continuation benefits under COBRA, accrued but unpaid
paid-time-off and vested retirement benefits, if any exist. 


        7.    Confidentiality.    The parties understand and agree that this Agreement and each of its terms, and the
negotiations surrounding it, are confidential and shall not be disclosed by Mr. Corwin or Vyyo to any entity or person other than attorneys or tax advisors, for any reason, at any time, without
the prior
written consent of the other party, unless required by law. Any party violating this Section shall pay to the other party the sum of Five Thousand Dollars ($5,000) for each violation by him or it of
the obligations of this Section. Because the injury resulting from such a violation would be impractical or extremely difficult to ascertain or estimate, this sum is agreed upon as liquidated damages
and is intended as compensation for this injury and not as a penalty. The liquidated damages provided by this Section shall be in addition to any other available remedy, and not in lieu thereof. 


        8.    Covenant Not to Sue.    The Releasing Party shall not sue or initiate against the Released Party any compliance
review, action or proceeding, or participate in the same, individually or as a member of a class, under any contract (express or implied), or any federal, state or local law, statute or regulation
pertaining in any manner to the Released Claims. 


        9.    Nonadmission.    The parties understand and agree that this is a compromise settlement of potential disputed
claims and that the furnishing of the consideration for this Agreement shall not be deemed or construed at any time or for any purpose as an admission of liability by Vyyo. The liability for any and
all claims is expressly denied by Vyyo. 


        10.    Amendments.    This Agreement may not be amended except by an instrument in writing, signed by each of the
parties. 


        11.    Assignment.    The parties hereto agree that they will not assign, sell, transfer, delegate or otherwise
dispose of, whether voluntarily or involuntarily, or by operation of law, any rights or obligations under this Agreement. Any such purported assignment, transfer or delegation shall be null and void.
The parties hereto represent that they have not previously assigned or transferred any claims or rights released by them pursuant to this Agreement. Subject to the foregoing, this Agreement shall 


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be
binding upon and shall inure to the benefit of the parties and their respective heirs, successors, attorneys and permitted assigns. In particular, any payments to be made hereunder to
Mr. Corwin shall be paid to his heirs in the event of his death. This Agreement also shall inure to the benefit of any Released Party. This Agreement shall not benefit any other person or
entity except as specifically enumerated in this Agreement. 



        12.    Return of Vyyo Property.    Mr. Corwin acknowledges that any and all computer (including applicable
software licenses), telephone and other similar equipment provided to him by Vyyo are the property of Vyyo and, unless otherwise provided in writing, will be returned to Vyyo immediately upon
termination of the Consulting Period. 


        13.    Integration.    The parties understand and agree that the preceding Sections recite the sole consideration for
this Agreement; that no representation or promise has been made by Mr. Corwin or Vyyo concerning the subject matter of this Agreement, except as expressly set forth in this Agreement; and that
all agreements and understandings between the parties concerning the subject matter of this Agreement are embodied and expressed in this Agreement. This Agreement shall supersede all prior or
contemporaneous agreements and understandings between Mr. Corwin and Vyyo whether written or oral, express or implied, including without limitation, the Employment Agreement. Without limiting
the generality of the foregoing, the parties acknowledge and agree that the Employment Agreement is hereby terminated as of the Effective Date and is of no further force or effect. 


        14.    Severability.    If any provision of this Agreement, or its application to any person, place or circumstance,
is held by an arbitrator or a court of competent jurisdiction to be invalid, unenforceable or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this
Agreement and such provision as applied to other persons, places and circumstances shall remain in full force and effect. 


        15.    Attorneys' Fees.    In any legal action, arbitration or other proceeding brought to enforce or interpret the
terms of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs. 



        16.    Governing Law.    This Agreement shall be governed by and construed in accordance with the law of the State of
California, without regard to or application of its conflicts of law principles. 


        17.    Interpretation.    This Agreement shall be construed as a whole, according to its fair meaning, and not in
favor of or against any party. By way of example and not limitation, this Agreement shall not be construed in favor of the party receiving a benefit nor against the party responsible for any
particular language in this Agreement. Captions are used for reference purposes only and should be ignored in the interpretation of the Agreement. 



        18.    Enforcement by Arbitration.    All claims that are in any way related to the subject matter, interpretation,
application or alleged breach of this Agreement ("Arbitrable Claims") shall be resolved by binding arbitration. Arbitration of Arbitrable Claims shall be in accordance with the National Rules for the
Resolution of Employment Disputes of the American Arbitration Association, as amended, and as augmented by this Agreement. Arbitration shall be final and binding upon the parties and shall be the
exclusive remedy for all Arbitrable Claims. Either party may bring an action in court to compel arbitration under this Agreement and to enforce an arbitration award. Otherwise, neither party shall
initiate or prosecute any lawsuit or administrative action in any way related to any Arbitrable Claim. The Federal Arbitration Act shall govern the interpretation and enforcement of this Section. The
parties hereby waive any rights they may have to trial by jury in regard to Arbitrable Claims, including without limitation any right to trial by jury as to the making, existence, validity or
enforceability of the agreement to arbitrate. Any arbitration award shall include a statement explaining the reasons and basis for the award. 


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        19.    Knowing Consent to Agreement.    The parties acknowledge that (a) they have had the opportunity to
consult counsel in regard to this Agreement; (b) they have read and understand the Agreement and are fully aware of its legal effect; and (c) they are entering into this Agreement freely
and voluntarily, and based on each party's own judgment and not on any representations or promises made by the other party, other than those contained in this Agreement. 


        20.    Non-Disparagement.    The parties agree not to disparage or make any untrue statement about each
other to any third party. 


        21.    Older Workers Benefit Protection Act.    Mr. Corwin acknowledges that (a) he is advised to
consult with counsel before signing this Agreement, (b) if he is 40 years of age or older, he may have at least 21 days to consider this Agreement before signing it (although he
may elect to waive any portion of this consideration period if he wishes to do so), and (c) if he is 40 years of age or older, he has seven days to revoke this Agreement after signing it
(and this revocation period may not be waived). To be effective, a revocation must be in writing, delivered to Andrew Fradkin, General Counsel, Vyyo Inc., 4015 Miranda Avenue, 1st
Floor, Palo Alto, California 94304, within the applicable revocation period, or sent to Vyyo, at such address, by certified mail, return receipt requested, postmarked within the applicable revocation
period. If Mr. Corwin exercises his right of revocation under this Section, Vyyo will have the right to terminate this Agreement in its entirety. 



	Dated: January 27, 2006	 	Dated: January 27, 2006
	

VYYO INC.	
 	

 
	

By:	

/s/  ANDREW P. FRADKIN      
	
 	

/s/  MICHAEL CORWIN      

	Name: Andrew P. Fradkin

Title: General Counsel and Secretary	 	Michael Corwin




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Exhibit 10.8


SEPARATION AGREEMENT AND RELEASE

RECITALS