Exhibit 10.13


 


CONSULTING AGREEMENT


 


THIS AGREEMENT is made effective on the
date which is eight days after it is signed by both parties (the “Effective Date”), by and between Vyyo Ltd.,
an Israeli company (the “Company”),
having principal offices at 4 Ha’Negev St, Airport City, P.O. Box 197 Zip
70100 Ben Gurion Airport Israel, and Avner Kol (the “Consultant”).


 


WHEREAS, Consultant was
employed by Vyyo Inc., the parent corporation of the Company, as its Chief
Operating Officer from November 1, 2005 to January 30, 2008; and


 


WHEREAS, Consultant’s
employment with Vyyo Inc. has been terminated and Consultant acknowledges that
he has received from Vyyo Inc. any and all payments due to him in connection
with his employment with Vyyo Inc. or any subsidiary or termination thereof;
and


 


WHEREAS, the Company
desires to have Consultant provide certain consulting services inter-alia for
the purpose of adequately transferring his former position with Vyyo Inc., and
Consultant desires to provide such consulting services upon the following terms
and conditions; and


 


WHEREAS, the parties
wish to memorialize the terms for their agreement.


 


NOW,
THEREFORE, it is hereby agreed as follows:


 


1.        The Services.
During the Term, Consultant shall provide certain services (the “Consulting
Services”) necessary for the transfer of his former position with Vyyo Inc., to
his replacement. Consultant shall render the Consulting Services from time to
time in accordance with the Company’s reasonable needs, and the dates and
places to perform the Consulting Services shall be determined mutually by the
Consultant and the Company.


 


2.        Best Efforts. Consultant shall devote
his best efforts, abilities, expertise, experience and attention to the
performance of the Consulting Services, and the Consultant agrees that he owes
duties of care, loyalty and confidentiality to the Company in the performance
of his duties hereunder.


 


3.        Considerations.


 


3.1.       Compensation.  As full and complete consideration for the
Consulting Services to be rendered hereunder Consultant shall be entitled to an
amount of US $20,833
per month, including VAT. Such amount shall be paid in New Israeli Shekels at
the representative rate of exchange on the date prior to payment. Payment shall
be made against presentation of a tax invoice issued by Consultant to the
Company


 


3.2.       Taxes and
Social Benefits.  Consultant expressly agrees that
the Company shall not be responsible in any way for any social or other
benefits to Consultant including, without limitation, contributions or deductions
with respect to National Insurance or social security, health tax or
unemployment insurance (the “Social Benefits”)
and that any and all tax consequences or requirements to pay Social Benefits
arising out of this Agreement shall be borne by the Consultant, provided,
however, that the Company shall be entitled (but not required) to withhold any
such applicable taxes and Social Benefits if it believes that it is legally
required to do so. To the extent that any demands are made upon the Company by


 


 

















 


any
authorities for payment of taxes or Social Benefits with respect to the
compensation paid under this Agreement (and which have not been deducted or
withheld by the Company), then Consultant shall fully indemnify the Company in
respect thereof upon demand by the Company.


 


4.        Term; Termination.


 


4.1.       The term of this Agreement shall
begin on July 1, 2008 hereof and shall continue for a period of six (6) months
(the “Term”).


 


4.2.       Notwithstanding the foregoing,
the Company may terminate this Agreement at any time for “Cause” (as
hereinafter defined). In such event this Agreement shall be deemed effectively
terminated as of the time of delivery of such notice and the Company shall have
no obligation to make any additional payments of Compensation hereunder.


 


For
the purpose hereof, the
term “Cause” shall mean: (i) Consultant’s
theft, dishonesty or falsification of any documents or records of the Company
or any affiliates thereof; (ii) Consultant’s improper use or disclosure of
the confidential or proprietary information of the Company; (iii) any
intentional action by Consultant which has a detrimental effect on the
reputation or business of the Company, including a breach of any covenant in
this Agreement; or (iv) any material breach by Consultant of any provision
of this Agreement, which breach is not cured within three (3) days
following notice thereof, or breach of Consultant’s duty of trust or fiduciary
duty toward the Company or its affiliates.


 


4.3.       Consultant agrees to conduct himself
in a professional and positive manner in all of his dealings, communications
and contacts concerning the Company, the conduct of his obligations hereunder
or the termination of this Agreement. Consultant agrees not to criticize,
denigrate, disparage or make any derogatory statements about the Company.  In particular, Consultant agrees not to make
any derogatory statements about the Company (including any subsidiaries or
affiliates), its business plans, policies and practices, or about any of its
officers, employees or former officers or employees, to customers, competitors,
suppliers, employees, former employees, members of the public, members of the
media or any other person, nor shall Consultant harm or in any way adversely
affect the reputation and goodwill of the Company.  Consultant also agrees not to damage any of
the Company’s property or harm the Company in any way, including financially.
Consultant agrees not to make any statement or announcement concerning he
departure from the Company except as may be reviewed and approved in writing by
the Company in advance.  Nothing in this Section 4.3
shall prevent Consultant from giving truthful testimony or information to law
enforcement entities, administrative agencies or courts or in any other legal
proceedings as required by law or otherwise by court order, including, but not
limited to, assisting in an investigation or proceeding brought by any
governmental or regulatory body or official related to alleged violations of
any law relating to fraud or any rule or regulation.  If Consultant violates this Section 4.3,
he shall pay to the Company the sum of Five Thousand Dollars ($5,000) for each
violation by him 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 4.3 shall be in
addition to any other available remedy, and not in lieu thereof.


 


5.        Proprietary Information; Non-Competition.


 


5.1.       Proprietary Information. 
Consultant shall
not use any Information for any purpose except in connection with the provision
of Consulting Services. Consultant shall not disclose the Information to any
other person or entity for any purpose without the prior


 


 


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written consent of the Company.  The Information shall at all times remain the
property of the Company and Consultant shall have no rights or ownership of any
kind to the Information.  For the
purposes of this Agreement “Information”
means confidential information belonging to the Company, including (without
limitation) information related to its business, computer software, programs
and hardware, designs, data, know-how, specifications, applications, materials,
trade secrets, compilations, developments, discoveries (whether patentable or
not), studies, drawings, schematics, samples, prototypes and other devices,
whether written, oral, or electronically recorded, market information, customer
lists and similar information related to the Company’s business.


 


5.2.       Non-Compete. During the term hereof and for a period of
twelve (12) months thereafter, Consultant shall not directly or indirectly,
either as an employee, employer, consultant, agent, principal, partner,
corporate officer, director, or in any other individual or representative
capacity, engage in or participate in any activities which conflict with, are
the same as, or are competitive with the activities in
which the Company or any of its affiliates is engaged.


 


5.3.       In the event that any business opportunity related to the business of the
Company shall come to Consultant’s knowledge, Consultant shall promptly notify
Company’s Board of Directors of such opportunity. Consultant shall not
appropriate for himself or for any other person other than the Company, any
such opportunity, except with the express written consent of the Board of
Directors, in advance. Consultant’s duty to notify the Company and to refrain from
appropriating all such opportunities shall neither be limited by, nor shall
such duty limit, the application of the general law of Israel relating to the
fiduciary duties of an agent or employee.


 


5.4.       All
work performed pursuant to this Agreement, and all materials and deliverables
developed, discovered or prepared by Consultant in the course of providing the
Consulting Services specifically including but not limited to software and
source code, and all derivatives of the above, as well as all marketing,
customer and similar information relating to the Company, shall be the property
of the Company, and all title and interest therein shall vest in the Company and shall
be deemed to be a work made for hire in the course of the Consulting Services
rendered hereunder.  To the extent that
title to any such works may not, by operation of law, vest in the Company, or
such works may not be considered works for hire, all rights, title and interest
therein are hereby irrevocably assigned to the Company.  All such materials shall belong exclusively
to the Company, and the Company shall have the right to obtain and to hold in
its own name all patents, copyrights, registrations, or other forms of
protection as may be appropriate to the subject matter, together with any
extensions and renewals thereof. 
Consultant agrees to provide the Company with such assistance as shall
be required to perfect or enforce the rights described in this Section 5.4.


 


6.        Independent Contractor.


 


6.1.       Consultant
is an independent contractor and not an employee of the Company and shall not
be entitled to any employee benefits, whether by contract, by
operation of applicable laws or otherwise. By executing this Agreement,
Consultant acknowledges and agrees that as a service provider to the Company,
he is not entitled to receive from the Company any Social Benefits (including
without limitation, paid vacation days, paid sick leave, severance payments,
pension funds, etc.).


 


 


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6.2.       If,
despite the parties’ express representations and agreements hereunder, it
shall, at any time, be determined by a court of competent jurisdiction or by
any other governmental authority, that employer-employee relations exist between
the Company and Consultant, and as a result of
such decision Consultant shall become entitled to any rights and/or payments
resulting from the existence of such relations, or the Company shall be
required to bear any additional expenses or costs (including any taxes or
obligatory payments to the tax authorities, the National Insurance authorities,
etc.), Consultant undertakes to indemnify Company for any such loss, cost,
payment, expense or damage caused to the Company as a result of such decision.,
and the following provisions shall apply:


 


6.2.1.        In lieu of any and all consideration
that was paid to the Consultant by the Company as of the date hereof (the “Consideration”), Consultant shall be deemed
to be entitled to a reduced consideration, which equals to 66% of the
Consideration (the “Reduced Consideration”).
Consultant’s entitlement to the Reduced Consideration shall be regarded as
gross compensation and shall apply retroactively as of the date hereof.


 


6.2.2.        Consultant shall
be under a duty to immediately refund to the Company any amount paid on account
of the Consideration by the Company as of the date hereof in excess of the
Reduced Consideration.


 


7.        Representations and Warranties. Each of
Consultant and the Company represents and warrants to the other party that
he/it is entitled to enter into this Agreement and to assume all the
obligations pursuant hereto, and that the execution and delivery of this
Agreement and the fulfillment of the terms hereof (i) will not constitute
a default under or conflict with any agreement or other instrument to which he
or it is a party or by which he/it is bound; (ii) will not result in a
breach of any confidentiality undertaking to any third party (and in performing
the Consulting Services hereunder, he shall not use any proprietary information
of any third party), (iii) do not require the consent of any person or entity, and (iv) there
are no contracts, impediments, hindrances or restrictive covenants preventing
the full performance of his or it duties and obligations hereunder, and nothing
contained in this Agreement shall require or permit Consultant or the Company
to do any act inconsistent with the requirements of any statue, regulation or rule under
any applicable law that maybe in effect from time to time.


 


8.        Remedies and Injunctive Relief. The parties
agree that in the event of any breach or threatened breach of any of the
covenants in Section 4.3, the damage or imminent damage to the value and
the goodwill of the Company’s business will be irreparable and extremely
difficult to estimate, making any remedy at law or in damages inadequate.  Accordingly, the parties agree that the
Company shall be entitled to injunctive relief against Consultant in the event
of any breach or threatened breach of any such provisions by Consultant, in
addition to any other relief (including damages) available to the Company under
this Agreement or under law.


 


9.        Miscellaneous. This Agreement constitutes the entire
understanding between the parties with respect to the matters referred to
herein. This Agreement shall be governed by the laws of the State of Israel,
excluding its conflict of law rules, and the competent courts of Tel-Aviv -
Jaffa shall have exclusive jurisdiction over the parties. This Agreement may
not be amended or modified, except by the written consent of both parties
hereto. No failure or delay on the part of any party hereto in exercising any
right, power or remedy hereunder shall operate as a waiver thereof. No waiver
of any right hereunder shall be effective for any purpose unless in writing and
signed by the Party hereto possessing said right.  No such waiver shall be construed to be a
waiver of any subsequent right, term or provision of this Agreement. Headings
to Sections herein are for the convenience of the parties only, and are


 


 


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not
intended to be or to affect the meaning or interpretation of this Agreement. In
the event that any covenant, condition or other provision contained in this
Agreement is held to be invalid, void or illegal by any court of competent
jurisdiction, the same shall be deemed severable from the remainder thereof,
and shall in no way affect, impair or invalidate any other covenant, condition
or other provision therein contained. All notices required to be delivered
under this Agreement shall be effective only if in writing and sent to the
addresses first set forth above and shall be deemed received by fax, upon
written confirmation of such receipt; by electronic communication, upon written
confirmation of such receipt; by hand delivery upon receipt; or by registered
mail, three days after deposit in the mail with written confirmation of
receipt.


 


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


 


	
  /s/ Wayne H. Davis

  	
   

  	
  /s/
  Avner Kol

  
	
   

  	
   

  	
   

  
	
  Vyyo Ltd.

  	
   

  	
  Avner Kol

  
	
   

  	
   

  	
   

  
	
  By:
  Wayne H. Davis

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Title:
  CEO of Vyyo Inc., parent of Vyyo Ltd.

  	
   

  	
   

  



 


 


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