SEPARATION AGREEMENT AND RELEASE


 


This Separation Agreement and Release (“Agreement”) is
between Xtend Networks Ltd (“Xtend”) of Hanegev 4, Airport City, and Amir Hochbaum, and all of his heirs, executors,
beneficiaries and assigns (“Employee”) of Makabim.  This Agreement shall be effective as of March
8, 2007 (“Effective Date”).


 


RECITALS


 


WHEREAS, Employee served as an employee of Xtend, pursuant to an Employment
Agreement dated February 20, 2005 (the “Employment
Agreement”); and


 


WHEREAS, on November 9, 2006, Employee delivered a resignation notice to Xtend; and


 


WHEREAS, Xtend and Employee desire to amicably settle the termination of
Employee’s employment relationship with Xtend; and


 


WHEREAS, even though Employee has made no claims against Xtend and Xtend has
made no claims against Employee, Xtend and Employee desire to resolve any and
all claims and potential claims as described in this Agreement.


 


ACCORDINGLY, the parties agree as follows:


 


1.                         Effective as of March 9, 2007
(the “Termination Date”), Employee’s
employment with Xtend shall cease, except as set forth in this Agreement.  It is understood that effective as of the
Termination Date, the employer-employee relationship between the Employee and
Xtend shall be fully and finally terminated.


 


2.                         On the
Termination Date, Xtend will:


 


2.1.                            Pay Employee any salary earned but
unpaid through the Termination Date.


 


2.2.                            Pay Employee
Recreation Pay (“Demei Havra’ah”) in the amount of 2,005 nis.


 


2.3.                            Transfer
to the name of Employee the ownership of all his Manager Insurance (“Bituach Menahalim”)
policies. It is agreed hereby that providing a letter instructing the insurance
company to transfer the Manager’s Insurance policies to Employee’s ownership
will be deemed full satisfaction of Xtend’s obligations in connection with
Employee’s rights to Manager’s Insurance.


 


2.4.                            Transfer
to Employee’s name, on the date required by law, ownership in the Continuous
Education Funds (“Keren Hishtalmut”).  It is
agreed hereby, that


 



   
 









 


providing a letter instructing the Education found to transfer the
Continuous Education Fund to the ownership of Employee will be deemed as full
satisfaction of Xtend’s obligations in connection with Employee’s rights to the
Continuous Education Fund.


 


2.5.                            Pay to
Employee for his accrued vacation days in the total gross
amount of 35,073 NIS, for 11.14 days of work, constituting the unused vacation
days as remains for Employee’s benefit as of the Termination Date.  In the event that the remaining vacation days
of Employee will be exceeded, the payment for final salary or any other
payment under law or this Agreement owed to Employee will be offset
accordingly.


 


2.6.                            It is agreed herein that
providing a letter instructing the insurance company to transfer the Manager’s Insurance policy to the ownership of
Employee, and attaching the relevant Form 161, will be deemed to effect the
terms stated in paragraphs ‎2.3 and ‎2.4.


 


3.                         No
later than the Termination Date, Employee shall return to Xtend the leased car
found in his possession and the fuel meter, in good and proper condition, in
the same condition as obtained.  Employee
is obligated to pay all fees and parking statements pertaining to such car
which are attributable to the period that ends on the date of actual return of
the car by Employee to Xtend.


 


4.                         Employee
declares and confirms that in accordance with the Option Agreement of April 18,
2005 (“First Option
Agreement”) between Employee and Vyyo Inc. (“Vyyo Inc.”),
Employee was granted options to acquire 150,000 shares of Common Stock of Vyyo Inc. at an exercise price of $7.34 per share (the “First Options”).  Employee also declares and confirms that in accordance
with the Option Agreement dated February 10, 2006 (“Second
Option Agreement”) between
Employee and Vyyo Inc., Employee was granted options to acquire 50,000 shares
of Common Stock of Vyyo Inc. at an exercise price of $5.22 per share (“Second Options”).


 


Employee declares and affirms that as of the Termination Date, options to acquire 68,750
shares of the aggregate number of options underlying the First Options, and
options to acquire 12,500 shares of the aggregate number of options underlying
the Second Options shall vest (hereinafter, the aggregate vested options of the
First Options and Second Options — 81,250 options — will be collectively
referred to as “Vested Options”). 
All remaining options that have not vested as of the Termination Date, whether
granted pursuant to the First Options or Second Options (i.e., 118,750
options), will be


 



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automatically cancelled on the
Termination Date and Employee will have no right thereunder.


 


The Vested Options (and solely
the Vested Options) may be exercised until June 8, 2007.  The Vested Options, or any part thereof, which were not exercised will be automatically cancelled
as of June 9, 2007, and Employee will not have any right to obtain shares
thereby.


 


Employee declares and confirms
that, other than his rights in the Vested Options as stated above, he has no
rights of any type to purchase or receive any securities of Vyyo Inc., or of
any company affiliated with it (including, without limitation, Vyyo Ltd., Xtend
Networks Ltd. or any subsidiary or an affiliate of any of the foregoing
companies), whatever their source, including rights in options that were not
vested as of the Termination Date, and he will have no claim for such rights.


 


The provisions of Vyyo Inc.’s
Third Amended and Restated 2000 Employee and Consultant Equity Incentive Plan,
and the terms and conditions of the First Option Agreement and the Second
Option Agreement between Vyyo Inc. and Employee will continue
to apply in accordance with their terms, mutatis
mutandis.


 


5.                         Employee
does hereby declare, confirm and undertake that upon receipt of the funds
detailed above, Xtend, Vyyo Inc. and any subsidiary thereof, have fulfilled all
of their obligations to him in connection with his employment and termination
thereof, including salary and all payments, including, without
limitation, any and all payments, if applicable, for the advance notice period,
payment in redemption of annual vacation or holiday allowance, recreation pay,
severance pay, health insurance, expense reimbursement, overtime pay, sick pay,
bonuses, that are or shall be due to Employee in connection with his employment
with Xtend or the termination thereof. 
Employee hereby releases and forever discharges Xtend, Vyyo Ltd and its
parent company, subsidiaries, partners, investors, predecessors, successors,
heirs, assigns, employees, former employees, shareholders, officers, directors,
agents, attorneys, insurance carriers, subsidiaries, divisions or affiliated
corporations or organizations, whether previously or hereinafter affiliated in
any manner, including without limitation any other entity associated with Vyyo
Inc. (the “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 Employee may now have
or has ever had against the Released Party, whether based on tort, contract
(express or implied), or any applicable law (collectively, the “Released Claims”).  The Released Claims shall also include, but
not be limited to, claims for 



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severance pay, bonuses, stock options, shares, sick leave, vacation
pay, life or health insurance, or any other fringe benefit.


 


6.                         For
the avoidance of doubt, Employee hereby affirms that this document constitutes
a compromise and notification of dismissal with respect to
severance compensation within the meaning of section 29 of the Severance
Compensation Law - 1963.


 


7.                         Employee
agrees hereby to transfer his position with Xtend in a complete and orderly
fashion, to make himself available to Xtend in a reasonable manner, to fulfill
the duties instructed by Xtend and to assist Xtend to the best of
his ability in anything connected to transferring his position or completing
his employment.


 


8.                         Employee
agrees to return to Xtend, no later than the
Termination Date, all documents, materials, tools, leased car, cellular phone,
and every other equipment that he used during his employment, including his
personal or laptop computer, all programs or plans in his possession, in any media
whatsoever, and which was obtained in connection with his employment, where the
foregoing is in as good condition as received. 
Employee further waives and foregoes any claim for delay of return of
any of such equipment.  Without
derogating from the generality of the foregoing, Employee will return to Xtend
all information, in any manner whatsoever, and all computations received or
prepared in connection with his employment, and which were in the possession of
Xtend or Vyyo, or in any other place, and Employee agrees that he has not and
will not make any copy of any such item whatsoever.


 


9.                         Notwithstanding
the foregoing, Xtend will allow Employee, beyond the letter of the law, to
transfer, at his own expense, the number of the telephone and the actual device
to his own ownership, in accordance with the agreement with the cellular
company and in accordance with his signature on the forms of transfer required
by such cellular company.  All financial
obligations for the use of any of such equipment from the Termination Date
until the date of their actual return (including tax obligations and all future
payments, fees and obligations in connection with such telephone device) will
be borne solely by Employee, and he agrees hereby that Xtend may deduct such amount
from his payroll or from any other payment to which he may otherwise be
entitled.


 


10.                   Employee
undertakes not to cause other employees of Xtend or Vyyo to leave Xtend or Vyyo
and not to solicit the employment of any of the employees of Xtend
or Vyyo with his new place of employment.


 


Employee further undertakes not to directly or indirectly solicit from
the clients of the Released Party any business directly or indirectly in competition
with the Released Party,



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or that involves activities in which any entity comprising the Released
Party was engaged or had already planned to be engaged while Employee provided
services to Xtend.


 


11.                   Unless
otherwise expressly stated herein, this Agreement cancels all agreements,
contracts or other documents between Employee and Xtend, whether written or
oral, excluding Employee’s obligations of confidentiality and non-competition
with regard to Xtend and Vyyo’s intellectual property (including the
confidentiality and non-competition undertakings pursuant to the Employment
Agreement and the confidentiality agreement signed between the Employee and
Xtend, which is attached hereto as Appendix A), which shall remain in
full force and effect.


 


12.                   The
parties to this Agreement agree and confirm that it is known to them that a
primary condition to Xtend’s and Employee’s obligations is that each of its
terms, and the negotiations surrounding it, are confidential and shall
not be disclosed by them or anyone on their behalf, directly or indirectly, to
any third party whatsoever, including employees and consultants of Xtend or its
past employees and consultants. Employee confirms that he knows that if he
breaches his confidentiality obligations, Xtend will be free from its
obligations under this Agreement.


 


13.                   Employee acknowledges that (a) he has had the opportunity to consult with
whomever he desires in regard to this Agreement; (b) he has read and
understands the Agreement and is fully aware of its legal effect; and (c) he is
entering into this Agreement freely and voluntarily, and based on he own
judgment and not on any representations or promises made by Xtend, other than
those contained in this Agreement.


 


14.                   Notwithstanding the foregoing
the confidentiality obligations set forth herein shall not apply to information
that is required to be disclosed pursuant to law or the order of any
governmental authority and either party may disclose such information.


 


	
  DATED: March 8, 2007

  	
   

  	
  DATED: March 8, 2007

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  /s/ Arik Levi

  	
   

  	
   

  	
   

  	
  /s/ Amir Hochbaum

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Xtend Ltd.

  	
   

  	
  Employee

  
	
   

  	
   

  	
   

  
	
  By: 

  	
  Arik Levi

  	
   

  	
   

  	
   

  
								



 



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