Exhibit 10.5


 


AMENDED AND RESTATED


EMPLOYMENT AGREEMENT


OF DAVIDI
GILO


WITH


VYYO INC.


 


THIS AMENDED
AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), made and entered into as of February 1,
2008 (the “Restatement Date”), by and between VYYO INC., a Delaware corporation
(hereinafter the “Corporation”), and DAVIDI GILO (hereinafter “Gilo”).


 


RECITALS


 


A.            The
Corporation previously employed Gilo as Chief Executive Officer and Chairman of
the Corporation’s Board of Directors pursuant to the terms of an Employment
Agreement between the Corporation and Gilo made and entered into as of February 10,
2006   (the “Effective Date”), and as Chairman of the
Corporation’s Board of Directors pursuant to the terms of an Amended and
Restated Employment Agreement between the Corporation and Gilo made and entered
into as of April 5, 2007, subject to election to the Board of Directors by
the Corporation’s stockholders and until Gilo’s successor is duly appointed and
elected.  The Corporation and Gilo now desire
to enter this Agreement as of the Restatement Date under the terms set forth below.


 


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


 


AGREEMENT


 


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


 


1.             Employment Duties.


 


a.             General.  The Corporation hereby agrees to employ Gilo,
and Gilo hereby agrees to accept employment with the Corporation, on the terms
and conditions hereinafter set forth.


 


b.             Corporation’s
Duties.  The Corporation
shall allow Gilo to, and Gilo shall, perform responsibilities normally incident
to the position of Chairman of the Board of Directors, commensurate with his
background, education, experience and professional standing.  The Corporation shall provide Gilo with such
office equipment, supplies, customary services and cooperation suitable for the
performance of his duties.


 

















 


c.             Gilo’s
Duties.  Unless otherwise
agreed to by the parties, Gilo shall serve as Chairman of the Board of the
Corporation, subject to the vote of the stockholders and Board of Directors as
applicable, and until Gilo’s successor is duly appointed and elected.  Gilo shall devote approximately twenty (20)
hours per week to the business of the Corporation, and shall not become engaged
to render similar services on behalf of any other entity while employed
hereunder which is in any way competitive to the Corporation, without the
consent of the Corporation’s Board of Directors.  Gilo shall report directly to the Corporation’s
Board of Directors.


 


2.             Term.    The initial
term of this employment agreement is three (3) years from the Effective
Date (the “Initial Term”).  Thereafter,
this Agreement may be renewed by Gilo and the Corporation on such terms as the
parties may agree to in writing.  Absent
written notice to the contrary, thirty (30) days prior to the end of the Initial
Term, this Agreement will be automatically renewed for consecutive one (1) year
extensions (together with the Initial Term, the “Term”).  Should the Initial Term not be renewed after
the expiration of the first three (3) year term, Gilo shall be entitled to
severance in exchange for a release as to any and all claims Gilo may have
against the Corporation as provided in Section 6.d.


 


3.             Compensation. 
Gilo shall be compensated as follows:


 


a.             Fixed
Salary.  Gilo shall
receive Twelve Thousand Dollars ($12,000) fixed annual salary.  The Corporation agrees to review the fixed
salary on or before December 31, 2007, and thereafter at the end of each
calendar year during the Term based upon Gilo’s services and the financial
results of the Corporation, and to make any increase as may be determined
appropriate in the sole discretion of the Corporation’s Compensation Committee
or Board of Directors.


 


b.             Payment.  Gilo’s fixed salary shall be payable on a
semi-monthly basis, in accordance with the Corporation’s usual payroll
practices.


 


c.             Bonus
Compensation. During the Term, Gilo shall participate in such bonus
plan(s) adopted by the Corporation’s Board of Directors, from time to time.   Gilo shall be entitled to receive an
additional annual bonus based on his performance and that of the Corporation
each year as determined by the Board of Directors of this Corporation, or its
Compensation Committee; provided, however, that in no event will such date be
later than the date that is two and one-half months from the end of the later
of (i) Gilo’s first taxable year in which Gilo’s bonus is determined or (ii) the
Corporation’s taxable year in which the bonus award is determined.  The bonus shall be prorated should Gilo’s
employment terminate prior to the full calendar year.


 


d.             Stock Options.  Gilo shall be eligible for certain stock
options that may be awarded by the Corporation, from time to time.


 


2

















 


e.             Vacation.  Gilo shall accrue paid vacation at the rate
of thirty (30) days for each twelve (12) months of employment, up to a maximum
of 60 working days.  Gilo shall be
compensated at his usual rate of compensation during any such vacation.  Gilo shall be entitled to paid holidays as
generally given by the Corporation.  Gilo
shall receive sick leave or disability leave in accordance with the terms of
the Corporation’s standard sick leave or disability leave policy.


 


f.              Benefits.  During the Term, Gilo and his dependents
shall be entitled to participate in any group plans or programs maintained by
the Corporation for any employees relating to group health, disability, life
insurance and other related benefits as in effect from time to time. Gilo shall
also be entitled to Director and Officer (“D&O”) insurance in such amounts
and coverage and such indemnification provisions as are afforded other officers
and directors of the Corporation. 
Benefits under this Section 3.f. will be paid by the Corporation.


 


g.             Expenses.  The Corporation shall reimburse Gilo for his
normal and reasonable expenses incurred for travel, entertainment and similar
items in promoting and carrying out the business of the Corporation in
accordance with the Corporation’s general policy as adopted by the Corporation’s
management from time to time.  In
addition, Gilo 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 a Chairman of the Board of Directors.  As a condition of payment or reimbursement,
Gilo agrees to provide the Corporation with copies of all available invoices
and receipts, and otherwise account to the Corporation in sufficient detail to
allow the Corporation 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
Corporation’s reimbursement policies.  In
no event shall any reimbursement payment be made later than the end of Gilo’s
taxable year following the taxable year in which the expense is incurred.


 


4.             Confidentiality and
Competitive Activities.  Gilo agrees
that during the Term he is in a position of special trust and confidence and
has access to confidential and proprietary information about the Corporation’s
business and plans.  Gilo agrees that he
will not directly or indirectly, either as an employee, employer, consultant,
agent, principal, partner, stockholder, corporate officer, director, or in any
similar individual or representative capacity, engage or participate in any
business that is in competition, in any manner whatsoever, with the
Corporation.  Notwithstanding anything in
the foregoing to the contrary, Gilo shall be allowed to invest as a shareholder
in publicly traded companies, or through a venture capital firm or an
investment pool.


 


3

















 


5.             Trade Secrets.


 


a.             Special
Techniques.  It is hereby
agreed that the Corporation has developed or acquired certain products,
technology, unique or special methods, manufacturing and assembly processes and
techniques, trade secrets, special written marketing plans and special customer
arrangements, and other proprietary rights and confidential information and
shall during the employment term continue to develop, compile and acquire said
items (all hereinafter collectively referred to as the “Corporation’s Property”).  It is expected that Gilo will gain knowledge
of and utilize the Corporation’s Property during the course and scope of his
employment with the Corporation, and will be in a position of trust with respect
to the Corporation’s Property.


 


b.             Corporation’s
Property.  It is hereby
stipulated and agreed that the Corporation’s Property shall remain the
Corporation’s sole property.  In the
event that Gilo’s employment is terminated, for whatever reason, Gilo agrees
not to copy, make known, disclose or use, any of the Corporation’s Property
without the Corporation’s prior written consent.  In such event, Gilo further agrees not to
endeavor or attempt in any way to interfere with or induce a breach of any
prior proprietary contractual relationship that the Corporation may have with
any employee, customer, contractor, supplier, representative, or distributor
for nine (9) months after any termination of this Agreement.  Gilo agrees upon termination of employment to
deliver to the Corporation all confidential papers, documents, records, lists
and notes (whether prepared by Gilo or others) comprising or containing the
Corporation’s Property.  Gilo recognizes
that violation of covenants and agreements contained in this Section 5 may
result in irreparable injury to the Corporation which would not be fully
compensable by way of money damages.


 


6.             Termination.


 


a.             General.  The Corporation may terminate this Agreement
without cause, on ninety (90) days written notice.  Gilo may voluntarily terminate his employment
hereunder upon ninety (90) days’ advance written notice to the Corporation.


 


b.             Termination
for Cause.  The
Corporation may immediately terminate Gilo’s employment at any time for
cause.  Termination for cause shall be
effective from the receipt of written notice thereof to Gilo specifying the
grounds for termination and all relevant facts. 
Cause shall be deemed to include: 
(i) material neglect of his duties or a significant violation of
any of the provisions of this Agreement, which continues after written notice
and a reasonable opportunity (not to exceed thirty (30) days) in which to cure;
(ii) fraud, embezzlement, defalcation or conviction of any felonious
offense; or (iii) intentionally imparting confidential information
relating to the Corporation or any of its subsidiaries or their business to
competitors or to other third parties other than in the course of carrying out
his duties hereunder.  The Corporation’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.


 


4

















 


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


 


d.             Severance
Pay.  If this Agreement is
terminated by the Corporation without cause pursuant to Section 6.a.
(above) and Gilo experiences a “Separation From Service” as defined under Section 409A
of the Internal Revenue Code and the regulations and guidance promulgated
thereunder (“Section 409A”),  the
Corporation shall pay Gilo a severance fee equal to the greater of  (a) the full amount of the compensation
that he could have expected under this Agreement (based on Gilo’s total
compensation (salary and bonus) earned in 2007), as and when payable under this
Agreement, through the end of the Initial Term; or (b) the full amount of
the compensation that he could have expected under this Agreement for eighteen
(18) months (based on Gilo’s total compensation (salary and bonus) earned in
2007 as and when payable under the Agreement), without deduction except for tax
withholding amounts, and any unvested options held by Gilo shall vest
immediately, in exchange for the execution of a binding release as to any and
all claims Gilo may have against the Corporation. If this Agreement is
terminated without cause after the Initial Term and Gilo experiences a
Separation From Service, the Corporation shall pay Gilo a severance fee equal
to the full amount of the compensation that he could have expected under this
Agreement for eighteen (18) months (based on Gilo’s total compensation (salary
and bonus) earned in 2007 as and when payable under this Agreement), without
deduction except for tax withholding amounts, and any unvested options
held by Gilo shall vest immediately, in exchange for the execution of a binding
release as to any and all claims Gilo may have against the Corporation. If this
Agreement is terminated by the Corporation for cause, pursuant to Section 6.b,
the Corporation shall pay to Gilo a severance fee equal to the full amount of
the compensation that he could have expected under this Agreement for three (3) months
(based on Gilo’s total compensation (salary and bonus) earned in 2007 as and
when payable under this Agreement), without deduction except for tax
withholding amounts, in exchange for the execution of a binding release as to
any and all claims Gilo may have against the Corporation.  If this Agreement is terminated voluntarily
by Gilo, the Corporation shall pay to Gilo a severance fee equal to the amount
of the compensation that he could have expected under this Agreement for nine (9) months
(based on Gilo’s total compensation (salary and bonus) earned in 2007 as and
when payable under this Agreement), without deduction except for tax
withholding amounts, in exchange for the execution of a binding release as to
any and all claims Gilo may have against the Corporation.


 


5

















 


e.             Change in
Control.  If Gilo
becomes entitled to severance pay under Section 6.d. above on or after January 1,
2009, and within one year following a Change in Control (as defined below),
then the severance pay shall be calculated as provided under Section 6.d.
but paid in a lump sum within five (5) business days of the Change in
Control.  If Gilo becomes entitled to
severance pay under Section 6.d. during 2008 following a Change in Control
(as defined below) that occurs during 2008, then the severance pay shall be
calculated and paid as provided under Section 6.d. until January 1,
2009, at which time the remaining unpaid severance pay shall be paid in a lump
sum.  A “Change in 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 Corporation’s common stock or the total voting power represented
by the Corporation’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
Corporation’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;


 


iii.            the
consummation of a reorganization, merger, statutory share exchange or
consolidation or similar transaction involving the Corporation or the
acquisition of assets or stock of another entity by the Corporation 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 Corporation 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 Corporation or the surviving entity
or all or substantially all of the Corporation’s or surviving entity’s assets
directly or through one or more subsidiaries) at least 50% of the total voting
power represented by the Corporation’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 Corporation 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 Corporation’s stockholders of a complete liquidation or dissolution of
the Corporation 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.


 


6

















 


7.             Delay in Payment.


 


a.             Release Delay.  Except as provided in Section 7.b., any
amount payable pursuant to Section 6.d. that is subject to Section 409A
shall commence on the first payroll on or after the fifty-third (53rd)
day after Gilo’s Separation From Service without regard to whether Gilo earlier
signs the binding release or waives his revocation right prior to the
expiration of the fifty-three (53) day period. 
Except as provided in Section 7.b., any amount payable pursuant to Section 6.e.
that is subject to Section 409A shall be paid on the fifty-third (53rd)
day after Gilo’s Separation From Service without regard to whether Gilo earlier
signs the binding release or waives his revocation prior to the expiration of
the fifty-three (53) day period.


 


b.             Specified Employee Delay. 
Notwithstanding any other timing provision in this Agreement, if at the
time the payments under Section 6.d. would commence, Gilo is a “specified
employee” as defined by Section 409A, then to the extent necessary to
avoid the imposition of excise taxes or other penalties under Section 409A,
no payment may be paid before the date that is six (6) months after Gilo’s
Separation From Service.  Payments to
which Gilo would otherwise have been entitled during that six months will be
accumulated and paid on the first day after six months following the date of
Gilo’s Separation From Service.  All
payments that would otherwise be made more than six (6) months following
the date of Gilo’s Separation From Service will be made in accordance with the
general timing provisions provided in this Agreement.


 


8.             Corporate Opportunities.


 


a.             Duty to Notify. 
In the event that Gilo, during the Term, shall become aware of any
material and significant business opportunity directly related to any of the
Corporation’s significant businesses, Gilo shall promptly notify the
Corporation’s Board of Directors of such opportunity.  Gilo shall not appropriate for himself or for
any other person other than the Corporation, or any affiliate of the
Corporation, any such opportunity unless, as to any particular opportunity, the
Board of Directors of the Corporation fails to take appropriate action within
thirty (30) days.  Gilo’s duty to notify
the Corporation and to refrain from appropriating all such opportunities for
thirty (30) days shall neither be limited by, nor shall such duty limit, the
application of the general law of Delaware relating to the fiduciary duties of
an agent or employee.


 


b.             Failure to Notify. 
In the event that Gilo fails to notify the Corporation of, or so
appropriates, any such opportunity without the express written consent of the
Corporation, Gilo shall be deemed to have violated the provisions of this Section notwithstanding
the following:


 


i.              The capacity in which Gilo shall have
acquired such opportunity; or


ii.             The probable success in the Corporation’s
hands of such opportunity.


 


7

















 


8.             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 Gilo hereunder are personal in
nature and the obligations to perform such services and the conditions and
covenants of this Agreement cannot be assigned by Gilo.  Subject to the foregoing, and except as
otherwise provided herein, this Agreement shall inure to the benefit of and
bind the successors and assigns of the Corporation.


 


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, provided
that no such severability shall be effective if it causes a material detriment
to any party.


 


e.             Applicable
Law.  This Agreement shall
be governed by and construed in accordance with the laws of the State of
Delaware.


 


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 seventy-two (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.


 


g.             Merger,
Transfer of Assets, or Dissolution of the Corporation.  This Agreement shall not be terminated by any
dissolution of the Corporation resulting from either merger or consolidation in
which the Corporation is not the consolidated or surviving corporation or a
transfer of all or substantially all of the assets of the Corporation.  In such event, the rights, benefits and
obligations herein shall automatically be assigned to the surviving or
resulting corporation or to the transferee of the assets. Upon such merger all
unvested options held by Gilo shall be vested immediately.


 


8

















 


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


 


	
  VYYO INC.

  	
   

  	
  DAVIDI GILO

  
	
  a Delaware corporation

  	
   

  	
   

  
	
  6625 The Corners
  Parkway, Suite 100

  	
   

  	
   

  
	
  Norcross, Georgia 30092

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Lewis S. Broad 

  	
   

  	
  /s/ David Gilo

  
	
  Lewis
  Broad, Chairman of 

  	
   

  	
  (Signature)

  
	
  the
  Compensation Committee

  	
   

  	
   

  
				



 


9