Exhibit 10.1


 





 


 


EMPLOYMENT
AGREEMENT


 


THIS EMPLOYMENT AGREEMENT (this “Agreement”)
is by and between Vyyo Inc., a
Delaware corporation (the “Company”), and Walter Ungerer (“Ungerer”).


 


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


 


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


 


1.                                      Employment
Duties.


 


                                                a.                                      General.  The Company hereby agrees to employ Ungerer,
and Ungerer hereby agrees to accept employment with the Company, on the terms
and conditions set forth below, which change shall be effective as of September
1, 2007 (the “Effective Date”).


 


                                                b.                                      Company’s
Duties.  The Company shall allow Ungerer
to, and Ungerer shall, perform responsibilities normally incident to his position
of Executive Vice President, Corporate Strategy and Investor Relations, commen­surate
with his background, education, experience and professional standing.  The Company shall provide Ungerer with such
office equipment, supplies, customary services and cooperation suitable for the
performance of his duties.


 


                                                c.                                       Ungerer’s
Duties.  Ungerer shall devote such time
as necessary to fully perform his services as Executive Vice President, Corporate
Strategy and Investor Relations and shall report directly to the Company’s Chief
Executive Officer. The parties acknowledge that Ungerer will perform his duties
from the Company’s facility in Norcross, Georgia, and shall be required to travel
to the Company’s other facilities and other locations as the Company’s business
dictates.


 


2.                                      Term.  The initial term of this Agreement is two
years (the “Initial  Term”).  There­after, this Agreement may be renewed by
Ungerer and the Company on such terms as the parties may agree to in
writing.  Absent written notice of
termination of this Agreement given by one party to the other party not less
than 30 days prior to the end of the Initial Term or any Renewal Term (as
defined below), this Agreement will be automatically renewed for a one-year
extension (each such extension a “Renewal Term”
and the Initial Term together with any and all Renewal Terms, the “Term”).  Notwithstanding
the foregoing, this Agreement is subject to earlier termination as provided
herein.


 


 

















 


3.                                      Compensation.  Ungerer shall be compensated as follows:


 


                                                a.                                      Salary.  Ungerer shall receive an annual salary of Two
Hundred Ten Thousand Dollars ($210,000). 
The Company agrees to review the salary on or before December 31, 2008,
and thereafter at the end of each calendar year during the Term based upon Ungerer’s
services and the financial results of the Company, and to make such changes as
may be determined appropriate in the sole discretion of the Company’s
Compensation Committee or Board of Directors. 
Ungerer’s annual salary shall be payable on a semi-monthly basis, in
accordance with the Company’s usual payroll practices.


 


                                                b.                                      Bonus
Compensation.  During each
calendar year in the Initial Term, Ungerer may become eligible to participate
in the Company’s bonus programs based on performance objectives to be agreed to
by Ungerer and the Company’s Chief Executive Officer.  Any bonus earned by Ungerer in a particular
calendar year will be paid by the Company in the manner and time period agreed
to by the parties.  The bonus shall be
prorated should Ungerer’s employment terminate prior to a full calendar year.


 


                                                c.                                       Stock
Options.  The Company’s management will
recommend to the Company’s Board of Directors or Compensation Committee that Ungerer
be granted a stock option to purchase 30,000 shares of the Company’s capital
stock at the next regularly scheduled quarterly meeting.  If approved, the stock options would be
granted with an exercise price equal to fair market value of the Company’s
common stock on the date of grant and would be governed by the terms of an
option agreement setting forth the vesting schedule of such shares (equal
monthly installments over 48 months).  If
there is any conflict between this Agreement and the terms of the option agreement,
the terms of the option agreement will control.


 


                                                d.                                      Paid
Time-Off.  Ungerer
shall accrue paid time-off in accordance with the terms of the Company’s paid
time-off policy.  Ungerer shall be
compensated at his usual rate of base compen­sation during any such paid
time-off.  Ungerer shall be entitled to
paid holi­days as generally given by the Company and shall receive sick leave
or disability leave in accordance with the terms of the Company’s standard sick
leave or disability leave policy.


 


                                                e.                                       Benefits.  Ungerer shall be entitled to participate in
any group plans or programs maintained by the Company for any employees
relating to group health, disability, life insurance and other related benefits
as in effect from time to time subject to the terms and conditions of such
plans. Ungerer shall also be entitled to director and officer insurance in such
amounts and coverage and such indemnification provisions as are afforded other
officers and directors of the Company.  The
foregoing benefits shall be paid by the Company.


 


                                                f.                                        Expenses.  The Company shall reim­burse Ungerer for his
normal and reasonable expenses incurred for travel, entertainment and similar
items in promoting and carrying out the Company’s business in accordance with
the Company’s general policy as adopted from time to time.  In addition, Ungerer 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 executive officers as determined by the Company.  As a condition of


 


 


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payment
or reimbursement, Ungerer agrees to provide the Company with copies of all
available invoices and receipts, and otherwise account to the Company in
sufficient detail to allow the Company 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 Company’s reimbursement policies then in effect.


 


4.                                      Confidentiality
and Competitive Activities.  Ungerer agrees to execute the Company’s current
form of  employee proprietary information
and inventions agreement, which will include provisions related to
confidentiality of Company information, assignment of inventions,
non-competition and non-solicitation of customers and employees.


 


5.                                      Termination.


 


                                                a.                                      Termination
without Cause; Voluntary Termination.  The Company may terminate this Agreement and Ungerer’s
employment hereunder without Cause (as defined below) and with or without prior
review or warning by providing 60 days prior written notice to Ungerer.  Ungerer may volun­tarily terminate his employ­ment
at any time upon 60 days’ prior written notice to the Company.


 


                                                b.                                      Termination
for Cause.  The Company
may immedi­ately terminate Ungerer’s employment at any time for Cause.  Termin­ation for Cause shall be effective
from the receipt of written notice thereof to Ungerer­ specifying the grounds
for termination.  “Cause”
shall be deemed to include:  (i) Ungerer’s
willful misconduct, or failure to perform, his material duties provided that Ungerer
is given written notice setting forth with reasonable specificity such
misconduct or failure and Ungerer fails to correct such behavior within 30 days
following receipt of notice; (ii) Ungerer’s conviction of a felony offense or
conviction for any unlawful act which would be materially detrimental to the
Company’s reputation, or a material act of dishonesty, moral turpitude, fraud,
embezzlement, misappropriation or financial dishonesty against the Company; or
(iii) Ungerer’s breach of any material provision of this Agreement, including
his obligations under Section 8(a), or breach of his employee proprietary
information agreement. The Company’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.


 


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


 


6.                                      Severance
Payment Upon Termination of Employment.  The severance payment set forth below shall
be in addition to any amounts owed to Ungerer as earned but unpaid wages
through the date of termination and accrued but unused vacation through the
date of termination.


 


 


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                                                a.                                      Termination
Without Cause.  If the
Company terminates this Agreement without Cause prior to the end of the Initial
Term, the Company shall pay Ungerer a severance payment equal to six months of
his annual salary (without bonus), payable over such period in accordance with
the Company’s usual payroll practices.  For
the avoidance of doubt, the six months of severance provided for in this
Section 6(a) shall include the 60 days of notice required by Section 5(a)
regarding termination without Cause.


 


                                                b.                                      Execution
of Release.  Ungerer
agrees that Ungerer’s right to receive any severance payment is conditioned on
the prior execution by Ungerer of a binding general release (in such form as
the Company may determine) of any and all claims against the Company and any
affiliates, and their respective officers, directors, employees or other
agents.


 


7.                                      Compensation
Upon a Change of Control.


 


                                                a.                                      Change
of Control Termination.  Upon
a Change of Control Termination (as defined below), Ungerer shall be entitled
to the following compensation:


 


                                                                                                (i)                                     Cash
Payment.  In lieu of any severance
payment described above in Section 6, payment in cash of an amount equal to the
sum of one times Ungerer’s then current annual salary as in effect for the
calendar year in which the Change of Control Termination occurs, payable in
accordance with the Company’s usual payroll practices.


 


                                                                                                (ii)                                  Stock
Options.  Any stock options granted to Ungerer
that are outstanding immediately prior to but are not vested as of the date of
the Change of Control Termination shall become 100% vested as of the date of
the Change of Control Termination.


 


                                                                                                (iii)                               Benefits.  For a period of one year following Ungerer’s
date of termination, the continuation of the same or comparable life, health,
disability, vision, hospitalization, dental and other insurance coverage as Ungerer
was receiving immediately prior to the Change of Control.


 


                                                b.                                      Offer
of Employment with Successor.  If upon a Change of Control Ungerer is
offered employment by the Company’s successor with responsibilities substantially
similar to that contemplated by this Agreement and Ungerer does not accept such
offer, 33.3% of the stock options granted to Ungerer that are outstanding
immediately prior to but are not vested as of the date of the Change of Control
shall become vested as of the date of the Change of Control.


 


                                                c.                                       Employment
with Successor.  If upon a
Change of Control Ungerer accepts employment with the Company’s successor with
responsibilities substantially similar to that contemplated by this Agreement,
33.3% of the stock options granted to Ungerer that are outstanding immediately
prior to but are not vested as of the date of the Change of Control shall
become vested as of the date of the Change of Control. If Ungerer terminates
his employment for Good Reason (as defined below) with the Company’s successor
on or after the 6-month anniversary of commencement of such employment, all
remaining stock options granted to Ungerer that are outstanding immediately
prior to but are not vested as of the date of his termination for Good Reason shall
become vested as of the date of such termination.


 
 
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                                                d.                                      For the
purposes of this Section, “Change of 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 Company’s common
stock or the total voting power represented by the Company’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 Company’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 Company or the acquisition
of assets or stock of another entity by the Company 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 Company 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 Company or the surviving entity or all or substantially
all of the Company’s or surviving entity’s assets directly or through one or
more subsidiaries) at least 50% of the total voting power represented by the Company’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 Company 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
Company’s stockholders of a complete liquidation or dissolution of the Company
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.


 


                                                e.                                       For the
purposes of this Section, a “Change of Control
Termination” shall mean a termination of employment within one year
following a Change of Control where the Company or a party effecting a Change
of Control of the Company terminates Ungerer’s employment without Cause, other
than as the result of Ungerer’s death or disability.


 


 


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                                                f.                                        For the
purposes of this Section, “Good Reason”
shall exist if Ungerer terminates his employment within 60 days of the
occurrence of any of the following:  (i)
a material adverse change in his position or title; or (ii) a reduction in his
base salary from that provided in this Agreement unless the reduction affects
all employees generally.


 


8.                                      Corporate
Opportunities.


 


                                                a.                                      Duty to
Notify.  In the event that during the
Term Ungerer shall become aware of any material and significant business
opportunity directly related to any of the Company’s significant businesses, Ungerer
shall promptly notify the Company’s Board of Directors of such
opportunity.  Ungerer shall not appropriate
for himself or for any other person other than the Company, or any affiliate of
the Company, any such opportunity unless, as to any particular opportunity, the
Board of Directors fails to take appropriate action within 90 days.  Ungerer’s duty to notify the Company and to
refrain from appropriating all such opportunities for 90 days shall neither be
limited by, nor shall such duty limit, the application of the general law of Georgia
relating to the fiduciary duties of an agent or employee.


 


                                                b.                                      Failure
to Notify.  In the
event that Ungerer fails to notify the Company of, or so appropriates, any such
opportunity without the express written consent of the Company, Ungerer shall
be deemed to have violated the provisions of this Section notwith­standing (i)
the capacity in which Ungerer shall have acquired such opportunity; or (ii) the
probable success in the Company’s hands of such opportunity.


 


9.                                      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 Ungerer hereunder are personal
in nature and the obligations to perform such services and the conditions and
covenants of this Agreement cannot be assigned by Ungerer.  This Agreement shall inure to the benefit of
and bind the successors and assigns of the Company.


 


                                                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.


 


 


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                                                e.                                       Applicable
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of Georgia
without regard to conflict of law principles.


 


                                                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 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.


 


 


 


 


 


 


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


 


 


	
  VYYO INC.

  	
   

  	
  WALTER UNGERER

  
	
  188 Inverness Drive
  West, Suite 140

  	
   

  	
  6625 The Corners
  Parkway, Suite 100

  
	
  Englewood, Colorado 80112

  	
   

  	
  Norcross, Georgia 30092

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Wayne H. Davis

  	
   

  	
  /s/ Walter Ungerer

  	
   

  
	
   

  	
  Wayne H. Davis, Chief Executive Officer

  	
   

  	
  (Signature)

  
	
   

  	
   

  	
   

  
	
  Date: November 8, 2007

  	
   

  	
  Date: November 8, 2007

  



 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


**SIGNATURE PAGE TO UNGERER EMPLOYMENT
AGREEMENT**


 


 


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