**AMENDEDAND RESTATED**

**CONSULTING AGREEMENT**

 

**THIS AMENDED AND RESTATED CONSULTING AGREEMENT** (this “**Agreement**”)is entered into as of February 1, 2008 (the “**EffectiveDate**”), by and between **Vyyo Inc**.,a Delaware corporation having its principal place of business at 6625 TheCorners Parkway, Suite 100, Norcross, Georgia 30092 (collectively with itssubsidiaries and affiliates, the “**Company**”),and James A. Chiddix, an individual  (“**Consultant**”) (collectively the “**Parties**” and individually a “**Party**”).

 

1.**             Services**.

 

                a.             **Scope ofServices**.  During the Term (asdefined below) of this Agreement, Consultant shall provide services to theCompany as described on **Exhibit A**for on average 40 hours each calendar month (the “**Services**”).  The partiesacknowledge that Consultant shall have the discretion to determine the timingof when Services will be performed, but Consultant’s exercise of suchdiscretion shall take into account the Company’s needs.  The parties further acknowledge thatConsultant shall be entitled to take vacations for reasonable periods fromtime-to-time. Consultant shall perform the Services in a careful, professionaland workmanlike manner and to the best of Consultant’s ability.  The parties may mutually agree to adjust thescope of the Services and Consultant agrees to use its reasonable efforts toaccommodate any such change in the scope of the Services.  If in the performance of his Serviceshereunder, Consultant is spending over the course of six months on average morethan 40 hours per week, the parties shall mutually agree to discuss in goodfaith and modify the compensatory terms of this Agreement.  This Agreement governs the terms andconditions of Consultant’s Services to the Company as set forth in thisAgreement and does not affect, and is otherwise unrelated to, Consultant’smembership on the Company’s Board of Directors, if applicable.

 

                b.             **Loyalty**.  Without limiting the other terms of thisAgreement, Consultant agrees that Consultant will not use any of the Company’sproprietary information provided under this Agreement or in connection with theprovision of Services, to compete with the Company or its products.  In addition, Consultant agrees that at alltimes during the term of this Agreement he shall act in the best interests ofthe Company.

 

2.**             IndependentContractor**.  It is understood and agreed, and it is theintention of the Parties, that Consultant is an independent contractor, and notthe employee, agent, joint venturer or partner of the Company for any purposeswhatsoever.  Consultant is not entitledto participate in any plans, arrangements or distributions pertaining to anyemployee benefits of the Company’s employees.   Consultant shall be entirely and solely responsible for his acts whileengaged in the performance of Services hereunder, and shall have no right,power or authority to create any obligation, express or implied, on behalf ofthe Company.

 

 

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3.**             Compensation**.

 

a.             **Fees**.  During the Term, the Company shall payConsultant Seven Thousand Five Hundred Dollars ($7,500) per month, inaccordance with the Company’s normal payroll practices.

 

b.             **Stock Option Grant**.  The Company shall grant Consultant an optionto purchase 250,000 shares of the Company’s Common Stock at the fair marketvalue of the Company’s Common Stock on the date of grant (the “**Stock Option**”).  TheStock Option will be governed by the Company’s Third Amended and Restated 2000Employee and Consultant Equity Incentive Plan and Consultant’s individualoption agreement.  Unless accelerated asprovided in Section 4 (“Acceleration Benefits”) below or in Section 5(c) (“Effectof  Termination”) below, the Stock Optionwill vest in equal monthly installments over 48 months, beginning on April 20,2007, subject to continued consultancy. If there is any conflict between this Agreement and the terms of theoption agreement, the terms of this Agreement will control.

 

c.             **Expenses**.  Consultant shall use his bestbusiness judgment when incurring expenses and shall respond in good faith toany future request by the Company that Consultant obtain prior approval of suchexpenses where the circumstances dictate. Consultant shall be reimbursed for all reasonable and necessary expensesincurred in performing the Services. Reimbursable expenses shall be invoiced tothe Company on a monthly basis, together with all supporting documentationrequired by the Company.  All suchexpenses shall be billed at Consultant’s actual out-of-pocket cost, withoutsurcharge.  The Company shall reimbursesuch expenses within 30 days of its receipt of Consultant’s invoice andsufficient documentation.

 

d.             **Taxes**.  Consultant shall be responsible for thepayment of all applicable taxes, including, but not limited to, federal incometax, employment taxes and any other taxes and shall indemnify the Company forthe same.  In the event the Company isrequired, or deems it appropriate, to withhold applicable taxes, Consultantshall receive payment net of such withheld taxes.

 

                4.             **Acceleration Benefits**.

 

                                a.             **FinancingEvent**.  If the Company is aparty to a Financing Event (defined below), and the Company’s Board ofDirectors or Audit Committee, as applicable, determines that Consultantcontributed in a material way to the Financing Event, then the following numberof Stock Options will vest:  (i) ifthe closing of the Financing Event occurs on or before March 31, 2007,then 60,000 of the outstanding and unvested Stock Options will vestimmediately; or (ii) if the closing of the Financing Event occurs on orbefore December 31, 2007, then 30,000 of the outstanding and unvestedStock Options will vest immediately.  Ifvesting of the Stock Options is accelerated pursuant to this Section, theremaining unvested Stock Options shall be redistributed pro-rata in equalmonthly installments over the 48-month vesting period set forth in Section 3(b).  For purposes of this Section, a “**Financing Event**” shall mean the receipt by the Company of$15 million in one or more related transactions of equity or debt, or acombination of equity or debt.  Forpurposes of this Section, Consultant will be considered to have contributed toa Financing Event “**in a material way**”

 

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if, in the Boardof Directors’ or Audit Committee’s determination, the Financing Event occurs asa result of his direct and active provision of the Services listed on **Exhibit A**.

 

                                b.             **SpectrumOverlay**.  If the Company’sSpectrum Overlay product is approved by Time Warner Inc. (“**Time Warner**”)or Comcast Corporation (“**Comcast**”) andsales of the Spectrum Overlay product to either such customer generates $10million in booked revenue on or before December 31, 2008 (the “**Required Revenue**”), and if the Company’s Board of Directorsor Audit Committee, as applicable, determines that Consultant contributed in amaterial way to the completion of such orders from either Time Warner orComcast, as the case may be, then (i) 30,000 of the outstanding andunvested Stock Options will vest immediately upon the Company’s receipt of theRequired Revenue from either Time Warner or Comcast, as the case may be, and (ii) theremaining number of outstanding and unvested Stock Options (other than thenumber of Stock Options that may vest monthly through December 31, 2008)will vest immediately upon the Company’s subsequent receipt of the RequiredRevenue from either Time Warner or Comcast, as the case may be.  For purposes of this Section, Consultant willbe considered to have contributed to the booking of Required Revenue “in amaterial way” if, in the Board of Directors’ or Audit Committee’s determination,the approval and sales of our products to such customers occur as a result ofhis direct and active provision of the Services listed on **Exhibit A**.

 

For the avoidance of doubt and as an example only, if the Companycloses a Financing Event on May 31, 2007 (at which time 30,000 of theoutstanding and unvested Stock Options will immediately vest) and also booksthe Required Revenue from Time Warner in December 2007 prior to bookingthe Required Revenue from Comcast, then an additional 30,000 of the outstandingand unvested Stock Options will immediately vest upon booking of the RequiredRevenue from Time Warner.  As of December 20,2007, an aggregate of 112,080 of the outstanding and unvested Stock Optionswill have vested (30,000 Stock Options related to a Financing Event, 30,000Stock Options related to booking of Required Revenue from Time Warner and52,080 Stock Options that vest monthly (5,208 per month for 10 months)).  If the Company subsequently books theRequired Revenue from Comcast in 2008, then 75,424 of the outstanding andunvested Stock Options will vest immediately upon booking of the RequiredRevenue from Comcast, with the remaining 62,496 Stock Options (5,208 per monthfor 12 months) vesting on an equal monthly basis through December [x],2008.  In all cases, the precedingexample assumes that Consultant has contributed in a material way to the eventsreferenced.

 

                                c.             **Change ofControl**.  If the Companyenters into a definitive agreement on or before December 31, 2008 whichwould result in a Change of Control (defined below) of the Company, then all ofConsultant’s outstanding and unvested Stock Options granted under thisAgreement will vest immediately as of the closing of the Change ofControl.  For purposes of this Section, a“**Change of Control**” means (i) asale of all or substantially all of the Company’s assets; (ii) any merger,consolidation or other business combination transaction of the Company with orinto another corporation, entity or person, other than a transaction in whichthe holders of at least a majority of the shares of the Company’s votingcapital stock outstanding immediately prior to such transaction continue tohold (either by such shares remaining outstanding or by their being convertedinto shares of voting capital stock of the surviving entity) a majority of thetotal voting power represented by the shares of the Company’s voting capitalstock (or the surviving entity) outstanding 

 

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immediately aftersuch transaction; or (iii) the direct or indirect acquisition (includingby way of a tender or exchange offer) by any person, or persons acting as agroup, of beneficial ownership or a right to acquire beneficial ownership ofsuch shares representing a majority of the voting power of the then outstandingshares of the Company’s capital stock.

 

5.**             Term; Termination**.

 

a.**             Term**. Unless sooner terminated as provided below, the Agreement will continue in effect for aperiod of one year(the “**Term**”). On each anniversary of the Effective Date, the Term will automaticallybe extended for a period of one year unless otherwise terminated in accordancewith this Agreement.

 

b.             **Termination**.  Either Party may terminate this Agreement on30 days prior written notice.  EitherParty may terminate this Agreement immediately and without prior notice if theother Party is in breach of any material provision of the Agreement.

 

c.             **Effect of Termination**.  Following termination or expiration of thisAgreement, the Company shall be obligated to pay Consultant for Servicesprovided through the date of termination or expiration.  Termination of this Agreement for any reasonshall not affect the obligations of the Parties under Section 6 of thisAgreement entitled “Trade Secrets.”  Ifthe Company terminates this Agreement without cause, Consultant’s unvestedStock Options shall continue to vest for three months after the date oftermination, at which time all remaining unvested Stock Options shall beautomatically forfeited.  Except as maybe otherwise provided in this Agreement, upon termination of this Agreement allunvested Stock Options shall be automatically forfeited.

 

6.             **Trade Secrets**.

 

a.             **Definition**.  The Parties acknowledge andagree that during the Term of this Agreement and in the course of the dischargeof his duties hereunder, Consultant shall have access to and become acquaintedwith the following information concerning the operation of the Company and theCompany’s affiliates, and that of the Company’s clients and customers:  confidential information, future plans,business forecasts, data and other technical information, test data, customerlists, research and development activities, marketing plans and strategies,processes, know-how and other trade secrets and proprietary information (the “**Confidential Information**”).

 

b.**             Dutyof Confidentiality**.  Consultant agrees that he shallnot disclose any Confidential Information, directly or indirectly, to any otherperson or use such Confidential Information in any way, either during the Term ofthis Agreement or at any other time thereafter, except as is required in thecourse of Consultant’s Services to the Company, or as otherwise required byapplicable law.  Consultant furtheragrees that all files, records, documents, equipment and similar items relatingto the Company’s business, whether prepared by Consultant during the term ofthis Agreement or by others, are and shall remain exclusively the property ofthe Company.

 

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c.             **Excluded Information**.  The Parties agree that the prohibitions ofthis Section 6 shall not apply to any information which:

 

(i)            Atthe time of disclosure is in the public domain;

 

(ii)           Afterdisclosure becomes a part of the public domain through no act or omission ofConsultant;

 

(iii)          Wasknown by or in the possession of Consultant prior to disclosure by the Company;or

 

(iv)          Isrightfully received by Consultant from third parties not employed by theCompany.

 

7.**             MiscellaneousProvisions**.

 

a.**             Notices**. Any notice required to be given pursuant to this Agreement shall beeffective only if in writing and delivered personally or by mail.  If given by mail, such notice must be sent byregistered or certified mail, postage prepaid, and mailed to the Parties at theaddresses set forth on the signature page hereof, or at such otheraddresses as the Parties may designate from time to time by writtennotice.  Mailed notices shall be deemedreceived two business days after the date of deposit in the mail.

 

b.             **Partial Invalidity**.  If any Section ofthis Agreement or the application thereof to any person or circumstance shallbe held to be invalid or unenforceable to any extent, the other Sections ofthis Agreement (or the application of the invalid Section to persons orcircumstances other than those to which it is held invalid or unenforceable)shall not be affected thereby, and each term and provision of this Agreementshall be valid and be enforceable to the fullest extent permitted by law.

 

c.             **Waiver**.  No waiver of any righthereunder shall be effective for any purpose unless in writing and signed bythe Party hereto possessing said right. No such waiver shall be construed to be a waiver of any subsequentright, term or provision of this Agreement.

 

d.             **Attorneys’ Fees; Costs**.  If any Partyto this Agreement institutes any legal action or proceeding against anotherParty to enforce or construe any of the provisions of this Agreement, or todetermine the validity thereof, the Party prevailing in such action orproceeding shall be entitled to recover from the other Party their costs of theaction, including as an element of damages reasonable attorneys’ fees, togetherwith such costs and fees incurred in enforcing any judgment or decisionsentered therein.  The Company shall paythe reasonable and actual costs billed to Consultant for review of thisAgreement by his legal counsel.

 

e.             **Governing Law**.  This Agreementshall be governed by and construed in accordance with the laws of the State ofDelaware, applicable to contracts made and to be performed 

 

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wholly within theState of Delaware, and without reference to the choice of law principles of theState of Delaware, or any other state.

 

f.**              Arbitration**. Any disputes arising under this Agreement shall be submitted to bindingarbitration by one neutral arbitrator associated with JAMS/Endispute who ismutually acceptable to the Parties.  TheCounty of Gwinnett, Georgia, U.S.A. shall be the venue for any proceeding,which proceeding shall be conducted in accordance with the  rules and procedures of JAMS/Endisptueand not by court action, except as provided by Delaware law for judicial reviewof arbitration proceedings.  Any decisionor award entered as a result of such arbitration shall be final and bindingupon all Parties.  The filing of ajudicial action to enable the recording of a notice of a pending action, fororders of injunction or other provisional remedies, shall not constitute awaiver of the right to arbitrate under this provision.  The Parties agree to the exclusive personaljurisdiction of courts of general jurisdiction in Gwinnett, Georgia, U.S.A.,for enforcement of such arbitration awards, agree to accept any service ofprocess by personal service, facsimile, express or overnight mail, or regularmail, return receipt requested, at the address listed below as being binding onsuch Party and agree to accept such arbitrators and court as being the sole andexclusive forum and venue for hearing such claims, disputes, controversies, breachesor similar events.  The Parties agree towaive any defense of *forum non conveniens*or improper venue respecting such courts. The cost of the arbitration shall be borne by the losing Party or insuch proportion as the arbitrator shall decide.

 

g.**             Representation byIndependent Counsel**.  Consultant acknowledges that bysigning this Agreement, Consultant is deemed to have consulted with counsel ofConsultant’s own choosing in connection with this Agreement.  Each Party represents that they have readthis Agreement in full and understands and voluntarily consents to each andevery provision contained in this Agreement.

 

**                               **h.             **Compliance**.****  Consultant represents and warrants to theCompany that he is not restricted or prohibited from entering into this Agreementand providing the Services contemplated hereby, and that nothing in thisAgreement conflicts with any contract or employment obligation ofConsultant.  Nothing contained in thisAgreement shall require or  permitConsultant or the Company to do any act inconsistent with the requirements ofany statute, regulation or rule of the United States or any State,including, but not limited to the Foreign Corrupt Practices Act or any similarlaw, regulation or rule that may be in effect from time to time, or anycontract or employment relationship of the Consultant of which either theConsultant or the Company may become aware in the future, or any of Consultant’sfiduciary obligations to any company, including without limitation, theCompany.

 

i.**              Entire Agreement**. This Agreement and the attached Exhibit(s) contain the entireagreement and understanding between the Parties related to Consultant’sServices to the Company and supersedes all prior agreements and understandings,oral or written.  No modification, terminationor attempted waiver shall be valid unless in writing and signed by Consultantand the Company.

 

j.              **Execution**.  ThisAgreement may be executed in one or more counterparts, all of which when takentogether shall be considered one and the same agreement and shall become 

 

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effective whencounterparts have been signed by each party and delivered to the other party,it being understood that both parties need not sign the same counterpart.  In the event that any signature is deliveredby facsimile transmission, such signature shall create a valid and bindingobligation of the party executing (or on whose behalf such signature isexecuted) with the same force and effect as if such facsimile signature page werean original thereof.

 

**IN WITNESS WHEREOF**, the undersigned have executed this Agreement as setforth below.

 
| Date:  February 1, 2008              | Date:  February 1, 2008              |
|-------------------------------------------|-------------------------------------------|
|                                      |                                      |
| **Vyyo  Inc**.                            | **James  A. Chiddix**                     |
| 6625 The Corners  Parkway, Suite 100 | 6625 The Corners  Parkway, Suite 100 |
| Norcross,  Georgia 30092                  | Norcross,  Georgia 30092                  |
|                                      |                                      |   |
| By:                                       | /s/ Wayne H.  Davis                       |   | /s/ James A. Chiddix |
| Name:                                     | Wayne H. Davis                            |   |
| Title:                                    | Chief Executive  Officer                  |   |
|                                           |                                           |  |  |

 

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**EXHIBIT A**

 

**Services to be Performed**

 

Consultant shall provide the following services to theCompany as needed and/or requested:

 

•             Speak or meetwith key customers in support of the Company and its products

 

•             Conductinterviews with the trade and business press in support of the Company and its products

 

•             Speak or meetwith stock and industry analysts to support the Company and its products

 

•             Speak or meetwith parties who are considering an investment (equity or debt) in the Company

 

•             Meet withCompany management from time-to-time to discuss product strategy

 

•             Be reasonablyavailable to speak with Company senior management to discuss business, product,customer and other issues.

 

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