Exhibit 10.12


 


SEPARATION AGREEMENT AND
RELEASE


 


This Separation Agreement
and Release (the “Agreement”) is
between VYYO INC. (“Vyyo”)
and Avner Kol (“Mr. Kol”).  The terms “Avner Kol”
and “Mr. Kol” include Avner Kol 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


 


·              Effective January 30, 2008
(the “Termination Date”), Mr. Kol’s
employment with Vyyo terminated.


 


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


 


·              This Agreement supersedes all
previous agreements and understandings regarding Mr. Kol’s employment with
Vyyo or his termination of employment with Vyyo, including, but not limited to,
the offer letter dated November 1, 2005 and any prior severance agreements.  This Agreement is also an amendment of the
offer letter for purposes of compliance with Section 409A of the Internal Revenue
Code (“Section 409A”).


 


ACCORDINGLY,
the parties agree as follows:


 


1.             Termination
of Employment.  Mr. Kol’s
employment with Vyyo terminated on the Termination Date in a manner that
constituted a “separation from service” under Section 409A.  As of the Termination Date, Mr. Kol’s
duties at Vyyo ceased.


 


2.             Separation
Consideration.


 


(a)           Severance.  In exchange for this Agreement, Vyyo will pay
to Mr. Kol as severance One Hundred Four Thousand One Hundred Sixty-Six Dollars
and Sixty-Seven Cents ($104,166.67), which amount constitutes five (5) month’s
salary, subject to applicable tax withholding (“Severance
Payment”).  The Severance
Payment consists of the severance payments set forth in Mr. Kol’s offer
letter dated November 1, 2005, and is inclusive of all amounts due and/or
payable by Vyyo to Mr. Kol however classified, including any accrued
paid-time off and any relocation expenses. 
The Severance Payment will be made in the form of salary continuation
payments and will be paid on regular Vyyo paydays. Payments hereunder will
commence the first payday as soon as administratively possible after this
Agreement has been fully executed and received by Vyyo’s Legal Department and
the applicable revocation periods described in this Agreement have expired.  Mr. Kol understands that Vyyo may change
payroll dates or schedules, or otherwise modify its payroll plans for its
active employees, and that to the extent he is entitled to any such coverage
after the Termination Date, those changes will be applied to him as well,
unless the change would violate Section 409A.  Except as required by applicable law or
provided in this Agreement, as of the Termination Date, Mr. Kol will cease
to be eligible to participate under, or covered by, any insurance or
self-insured welfare benefit, bonus, incentive compensation, commission, life
insurance, retirement or other compensation or benefit plans, and has no rights
under any of those plans, unless the terms of the plan provide for coverage
following separation from employment. 
The Severance Payment will be paid in full no later than December 31,
2008.


 


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(b)           COBRA.  If Mr. Kol elects COBRA coverage under
Vyyo’s health insurance plans, Vyyo shall pay to Vyyo’s health insurance provider
One Thousand Six Hundred Ninety-One Dollars and Seventy Cents ($1,691.70) per
month, constituting the cost of Mr. Kol’s health insurance premiums for
the period beginning on the Effective Date and continuing through the earlier
of the date that Mr. Kol is covered under a health insurance program other
than through Vyyo or December 31, 2008, subject to applicable tax and paid
on regular Vyyo paydays.  If Mr. Kol
elects COBRA coverage under Vyyo’s health insurance plans, Mr. Kol shall
have an affirmative obligation to promptly advise Vyyo when he is covered under
another health insurance program or plan, after which time Vyyo’s obligation to
make the payments in this Section 2(b) shall immediately cease.


 


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


 


(d)           Status of
Stock Options.  As of December 31, 2008, Mr. Kol
shall hold fully-vested stock options to purchase 237,334 shares of Vyyo common
stock (being 40,000 shares vested under grant number 880, the exercise period
of which shall be extended to March 31, 2009 as set forth below in this
section; 12,643 shares vested under grant number 1360; 53,233 shares vested
under grant number 1361; 80,000 shares vested under grant number 1444; and 51,458
shares vested under grant number 1497) (the “Vested
Options”).  The remaining unvested
stock options under grant numbers 1185, 1186, 1194, 1195, 1202, 1203, 1360,
1361, 1496 and 1497 shall be forfeited and Mr. Kol shall have no further
rights in such grants.  As of the Termination Date and December 31,
2008, Mr. Kol does not and will not hold any other stock options,
exercisable and outstanding or otherwise. 
For the avoidance of doubt, Mr. Kol will be allowed to exercise the
Vested Options (and only the Vested Options) as set forth above no later than three
(3) months after December 31, 2008, being March 31, 2009.  In the event of any inconsistency between any
stock option agreement and this Agreement, the provisions of this Agreement
shall control.


 


(e)           Delay in Payment.  Notwithstanding any other timing provision in
this Agreement, if, at the time the Severance Payment would commence, Mr. Kol
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 months after the termination
of Mr. Kol’s employment.  Payments
to which Mr. Kol 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 Mr. Kol’s termination of employment.  All payments that would otherwise be made
more than six months following the date of Mr. Kol’s termination of
employment will be made in accordance with the general timing provisions
described above.


 


3.             Employee
Proprietary Information and Inventions Agreement.  Mr. Kol acknowledges that he is bound by
the Employee Proprietary Information and Inventions Agreement executed in
connection with his commencement of employment, and as a result of such employment
with Vyyo, Mr. Kol had access to Vyyo’s proprietary information and trade
secrets.  Mr. Kol 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. Kol 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.


 


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4.             Release.  Except as set forth in the second paragraph
of this Section, Mr. Kol and Vyyo (each, a “Releasing
Party”) hereby unconditionally, irrevocably and 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 (a) Title VII of the Civil Rights Act of
1964 or the Civil Rights Act of 1991, which prohibit discrimination based on
race, color, national origin, ancestry, religion or sex; (b) the Age
Discrimination in Employment Act, which prohibits discrimination based on age; (c) the
Equal Pay Act, which prohibits paying men and women unequal pay for equal work;
(d) the Americans with Disabilities Act and Sections 503 and 504 of the
Rehabilitation Act of 1973, which prohibit discrimination based on disability; (e) the
federal Worker Adjustment and Retraining Notification Act (WARN) and any
similar applicable state statute or regulation, which require that advance
notice be given of certain workforce reductions; (f) the Employee
Retirement Income Security Act and any similar applicable state statute or
regulation, which, among other things, protects employee benefits; (g) the
Fair Labor Standards Act of 1938 and any similar applicable state statute or
regulation, which regulate wage and hour matters; (h) the Family and
Medical Leave Act and any similar applicable state statute or regulation, which
require employers to provide leaves of absence under certain circumstances; (i) the
Sarbanes-Oxley Act of 2002, which, among other things, provides whistleblower
protection; (j) the labor and civil codes and constitution of any
applicable state; or (k) any other law prohibiting retaliation based on
exercise of a Released Party’s rights under any law, providing whistleblowers
protection or otherwise prohibiting retaliation; providing workers’
compensation benefits; protecting union activity; mandating leaves of absence;
prohibiting discrimination based on veteran status, military service or any
other factors; restricting an employer’s right to terminate employees or
otherwise regulating employment; enforcing express or implied employment
contracts; requiring an employer to deal with employees fairly or in good faith;
providing recourse for alleged wrongful or constructive termination or discharge;
tort, physical or personal injury, emotional distress, fraud, negligent
misrepresentation, defamation and similar or related claims and any other law
relating to salary, commission, compensation, benefits and other matters.  Mr. Kol specifically represents that he
has not been treated adversely on account of age, nor has he otherwise been
treated wrongfully in connection with employment with Vyyo or separation from
employment and that he has no basis for a claim under the Age Discrimination in
Employment Act.  Except as provided in
this Agreement, Mr. Kol specifically waives any right he may have to
receive benefits under any Vyyo severance plan, bonus plan, sick leave policy,
vacation pay policy, life or health insurance plans, offer letter or other
similar employment-related agreement or any other employee benefit plan. Mr. Kol
acknowledges that Vyyo relied on the representations and promises in this
Agreement in agreeing to pay the benefits described in subsection 2(a).  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. Kol.  Moreover, the release in this Agreement shall
not interfere with Mr. Kol’s ability to participate in any manner in an
investigation, proceeding or hearing conducted by the federal Equal Employment
Opportunity Commission or any state equivalent.


 


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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. Kol’s employment with Vyyo, or otherwise, subject to the
exclusions from the definition of Released Claims set forth in Section 4
above.


 


6.             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
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. Kol 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, except as 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.  A Releasing Party
shall not sue or initiate against a 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.  The Releasing Party will
withdraw with prejudice any such lawsuit or other legal action that may already
be pending.  Although this Agreement does
not preclude the Releasing Party from filing a charge with any administrative
agency, the Releasing Party promises never to seek or accept any damages,
remedies or other relief for the Releasing Party personally (any right to which
is hereby waived) by prosecuting such a charge, or otherwise, with respect to
any claim purportedly released by this Agreement.


 


9.             Employee in Good Standing.
Mr. Kol understands that if his employment continues beyond the date that
this Agreement is signed, he must perform his job at a performance level
acceptable to Vyyo and otherwise remain in good standing through the Termination
Date.  Mr. Kol understands that
resignation prior to the Termination Date; engaging in misconduct; termination
for cause, for performance problems, for job abandonment or due to other
circumstances within


 


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Mr. Kol’s
control, or failure to perform duties in a manner acceptable to Vyyo prior to
the Termination Date, will render this Agreement null and void.  In addition, any misconduct or performance
problems discovered after the Termination Date, will render this Agreement null
and void and will result in forfeiture of all remaining separation pay,
benefits and other consideration described in Section 2(a), as well as the
obligation to repay all Severance Payments through the date of discovery, but
will not affect any other rights or obligations under the Agreement.


 


10.           Future Cooperation.  Mr. Kol agrees to cooperate with Vyyo
(including its employees, officers, directors, attorneys and representatives)
and to furnish complete and truthful information, testimony or affidavits in
connection with any matter that arose during his employment.  Such cooperation may be performed at
reasonable times and places and in a manner as not to interfere with any other
employment in which Mr. Kol may then be engaged.


 


11.           Non-Solicitation. 
During the one-year period after this Agreement, Mr. Kol will not
directly or indirectly recruit any employee with whom he worked or directly or
indirectly supervised during employment with Vyyo (other than any secretarial,
clerical or custodial employees) to work for another company or business; nor
will Mr. Kol assist anyone else in recruiting or hiring any such employee
to work for another company or business or discuss with any such person his or
her leaving the employ of Vyyo to engage in a business activity in competition
with Vyyo. During this same one-year period, Mr. Kol also will not
directly or indirectly solicit or encourage any customer of Vyyo (with whom Mr. Kol
had material contact during his employment with Vyyo) to purchase any product
or service of a type offered by or competitive with any product or service
provided by Vyyo, or to reduce the amount or level of business purchased by
such customer from Vyyo. These provisions shall be fully enforceable to the
fullest extent permitted by applicable law in such circumstances.


 


12.           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.


 


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


 


14.           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 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. Kol 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.


 


15.           Return of Vyyo Property.  Mr. Kol acknowledges that any and all
computer (including applicable software licenses), telephone and other similar
equipment, credit cards or any other property provided to him by Vyyo are the
property of Vyyo and will be returned to Vyyo prior to or on the Termination
Date; provided, however, that Mr. Kol may
keep the laptop currently in Mr. Kol’s possession.


 


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16.           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. Kol 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. Kol
and Vyyo whether written or oral, express or implied.


 


17.           Severability.  If any provision of this Agreement, or its
application to any person, place or circumstance, is held by a court of
competent jurisdiction to be invalid, unenforceable or void, such provision
shall be deemed severable and shall not affect the validity and enforceability
of the remaining provisions of this Agreement. 
In addition, to the extent any such provision shall be determined by a court
to be unenforceable to any extent or to any degree, that provision shall not be
rendered invalid, but instead shall be automatically amended to such lesser
time period, degree, scope and/or extent as shall grant Vyyo the maximum
protection allowed by applicable law in such circumstances. In addition to and
not in lieu of its other legal rights, Vyyo shall have the right to an
injunction (without any required bond) to prevent any actual or threatened
violation of any provisions of the Sections of this Agreement regarding
confidentiality or non-solicitation, and to recover and/or cease making any
payments called for by this Agreement.


 


18.           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.


 


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


 


20.           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.


 


21.           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.


 


22.           Non-Disparagement.   Mr. Kol
agrees to conduct himself in a professional and positive manner in all of his
dealings, communications and contacts concerning Vyyo, his employment or
separation from employment.  Mr. Kol
agrees not to criticize, denigrate, disparage or make any derogatory statements
about Vyyo.  In particular, Mr. Kol
agrees not to make any derogatory statements about Vyyo (including any
subsidiaries or affiliates), its business plans, policies and practices, or
about any of its officers, employees or former officers or employees, to


 


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customers,
competitors, suppliers, employees, former employees, members of the public,
members of the media or any other person, nor shall Mr. Kol harm or in any
way adversely affect the reputation and goodwill of Vyyo.  Mr. Kol also agrees not to damage any Vyyo
property or harm Vyyo in any way, including financially. Mr. Kol agrees
not to make any statement or announcement concerning his departure from Vyyo
except as may be reviewed and approve in writing by Vyyo in advance.  Nothing in this Section shall prevent Mr. Kol
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 of the Securities and Exchange Commission.  If Mr. Kol violates this Section, he
shall pay to Vyyo 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 shall be in addition to any other available remedy, and
not in lieu thereof.


 


23.           Older
Workers Benefit Protection Act.  Mr. Kol hereby represents and warrants
that:


 


(a)           He has carefully
read this Agreement and fully understands all of the provisions of this
Agreement;


 


(b)           He has had an opportunity to consult with an attorney of his choice as to the terms
of this Agreement to the full extent that he desired before signing
this Agreement;


 


(c)           He understands that this
Agreement forever releases Vyyo from any legal
action arising prior to the date of execution of this Agreement;


 


(d)           He has had the opportunity
to review and consider this Agreement for a period of
at least 45 days before signing it;


 


(e)           He understands that he shall have seven days following the execution of this Agreement to
revoke this Agreement.  To be effective, the revocation must be
in writing, delivered to Tashia L. Rivard, General Counsel, Vyyo Inc., 6625 The
Corners Parkway, Suite 100, Norcross, Georgia 30092, within the applicable
revocation period, or sent to Vyyo, at such address, by certified mail, return
receipt requested, postmarked within the applicable revocation period;


 


(f)            In signing this Agreement, he does not rely on nor has he relied on any representation or
statement (written or oral) not specifically set forth in this Agreement
by Vyyo or by any of Vyyo’s agents, representatives or attorneys with regard to
the subject matter, basis or effect of this Agreement or otherwise; and


 


(g)           He was not coerced,
threatened or otherwise forced to sign this Agreement, and he is voluntarily signing and delivering this Agreement of his own
free will, and that his signature appearing hereafter is genuine.


 


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If
Mr. Kol exercises his right of revocation under this Section, Vyyo will
have the right to terminate this Agreement in its entirety.


 


 


	
  Dated:
  3/6/, 2008

  	
   

  	
  Dated:
  3/6, 2008

  



 


 


	
  VYYO
  INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wayne H. Davis 

  	
   

  	
  /s/ Avner Kol

  
	
  Name:
  

  	
  Wayne
  H. Davis

  	
   

  	
  Avner
  Kol

  
	
  Title:

  	
  Chief
  Executive Officer

  	
   

  	
   

  
					



 


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