AMENDED AND
RESTATED
CONSULTING
AGREEMENT
THIS AMENDED AND RESTATED
CONSULTING AGREEMENT (this “ Agreement ”) is
entered into as of February 1, 2008 (the “ Effective
Date ”), by and between Vyyo Inc ., a Delaware
corporation having its principal place of business at 6625 The
Corners Parkway, Suite 100, Norcross, Georgia 30092
(collectively with its subsidiaries and affiliates, the “
Company ”), and James A. Chiddix, an individual
(“ Consultant ”) (collectively the “
Parties ” and individually a “ Party
”).
1
.
Services .
a.
Scope of Services . During the Term (as defined below)
of this Agreement, Consultant shall provide services to the Company
as described on Exhibit A for on average 40 hours each
calendar month (the “ Services ”). The
parties acknowledge that Consultant shall have the discretion to
determine the timing of when Services will be performed, but
Consultant’s exercise of such discretion shall take into
account the Company’s needs. The parties further
acknowledge that Consultant shall be entitled to take vacations for
reasonable periods from time-to-time. Consultant shall perform the
Services in a careful, professional and workmanlike manner and to
the best of Consultant’s ability. The parties may
mutually agree to adjust the scope of the Services and Consultant
agrees to use its reasonable efforts to accommodate any such change
in the scope of the Services. If in the performance of his
Services hereunder, Consultant is spending over the course of six
months on average more than 40 hours per week, the parties shall
mutually agree to discuss in good faith and modify the compensatory
terms of this Agreement. This Agreement governs the terms and
conditions of Consultant’s Services to the Company as set
forth in this Agreement and does not affect, and is otherwise
unrelated to, Consultant’s membership on the Company’s
Board of Directors, if applicable.
b.
Loyalty . Without limiting the other terms of this
Agreement, Consultant agrees that Consultant will not use any of
the Company’s proprietary information provided under this
Agreement or in connection with the provision of Services, to
compete with the Company or its products. In addition,
Consultant agrees that at all times during the term of this
Agreement he shall act in the best interests of the
Company.
2
.
Independent Contractor . It is understood and
agreed, and it is the intention of the Parties, that Consultant is
an independent contractor, and not the employee, agent, joint
venturer or partner of the Company for any purposes
whatsoever. Consultant is not entitled to participate in any
plans, arrangements or distributions pertaining to any employee
benefits of the Company’s employees.
Consultant shall be entirely and solely responsible for his acts
while engaged in the performance of Services hereunder, and shall
have no right, power or authority to create any obligation, express
or implied, on behalf of the Company.
3
.
Compensation .
a.
Fees . During the Term, the Company shall pay
Consultant Seven Thousand Five Hundred Dollars ($7,500) per month,
in accordance with the Company’s normal payroll
practices.
b.
Stock
Option Grant . The Company shall grant Consultant an
option to purchase 250,000 shares of the Company’s Common
Stock at the fair market value of the Company’s Common Stock
on the date of grant (the “ Stock Option
”). The Stock Option will be governed by the
Company’s Third Amended and Restated 2000 Employee and
Consultant Equity Incentive Plan and Consultant’s individual
option agreement. Unless accelerated as provided in
Section 4 (“Acceleration Benefits”) below or in
Section 5(c) (“Effect of Termination”)
below, the Stock Option will 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 the option agreement, the terms of this
Agreement will control.
c.
Expenses
. Consultant shall use his best
business judgment when incurring expenses and shall respond in good
faith to any future request by the Company that Consultant obtain
prior approval of such expenses where the circumstances
dictate. Consultant shall be reimbursed for all reasonable
and necessary expenses incurred in performing the Services.
Reimbursable expenses shall be invoiced to the Company on a monthly
basis, together with all supporting documentation required by the
Company. All such expenses shall be billed at
Consultant’s actual out-of-pocket cost, without
surcharge. The Company shall reimburse such expenses within
30 days of its receipt of Consultant’s invoice and sufficient
documentation.
d.
Taxes . Consultant shall be responsible for the
payment of all applicable taxes, including, but not limited to,
federal income tax, employment taxes and any other taxes and shall
indemnify the Company for the same. In the event the Company
is required, or deems it appropriate, to withhold applicable taxes,
Consultant shall receive payment net of such withheld
taxes.
4.
Acceleration Benefits .
a.
Financing Event . If the Company is a party to a
Financing Event (defined below), and the Company’s Board of
Directors or Audit Committee, as applicable, determines that
Consultant contributed in a material way to the Financing Event,
then the following number of Stock Options will vest:
(i) if the closing of the Financing Event occurs on or before
March 31, 2007, then 60,000 of the outstanding and unvested
Stock Options will vest immediately; or (ii) if the closing of
the Financing Event occurs on or before December 31, 2007,
then 30,000 of the outstanding and unvested Stock Options will vest
immediately. If vesting of the Stock Options is accelerated
pursuant to this Section, the remaining unvested Stock Options
shall be redistributed pro-rata in equal monthly 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 a combination of
equity or debt. For purposes of this Section, Consultant will
be considered to have contributed to a Financing Event “
in a material way ”
2
if, in the Board of
Directors’ or Audit Committee’s determination, the
Financing Event occurs as a result of his direct and active
provision of the Services listed on Exhibit A
.
b.
Spectrum Overlay . If the Company’s Spectrum
Overlay product is approved by Time Warner Inc. (“ Time
Warner ”) or Comcast Corporation (“ Comcast
”) and sales of the Spectrum Overlay product to either such
customer generates $10 million in booked revenue on or before
December 31, 2008 (the “ Required Revenue
”), and if the Company’s Board of Directors or Audit
Committee, as applicable, determines that Consultant contributed in
a material way to the completion of such orders from either Time
Warner or Comcast, as the case may be, then (i) 30,000 of the
outstanding and unvested Stock Options will vest immediately upon
the Company’s receipt of the Required Revenue from either
Time Warner or Comcast, as the case may be, and (ii) the
remaining number of outstanding and unvested Stock Options (other
than the number of Stock Options that may vest monthly through
December 31, 2008) will vest immediately upon the
Company’s subsequent receipt of the Required Revenue from
either Time Warner or Comcast, as the case may be. For
purposes of this Section, Consultant will be considered to have
contributed to the booking of Required Revenue “in a material
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 of his direct and
active provision of the Services listed on Exhibit A
.
For the avoidance
of doubt and as an example only, if the Company closes a Financing
Event on May 31, 2007 (at which time 30,000 of the outstanding
and unvested Stock Options will immediately vest) and also books
the Required Revenue from Time Warner in December 2007 prior
to booking the Required Revenue from Comcast, then an additional
30,000 of the outstanding and unvested Stock Options will
immediately vest upon booking of the Required Revenue from Time
Warner. As of December 20, 2007, an
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