Exhibit 10.1
AMENDED AND
RESTATED
EMPLOYMENT
AGREEMENT
OF DAVIDI GILO
WITH
VYYO INC.
THIS AMENDED AND RESTATED
EMPLOYMENT AGREEMENT (this “Agreement”), made and entered
into as of April 5, 2007 (the “Restatement Date”), by
and between VYYO INC., a Delaware corporation (hereinafter the
“Corporation”), and DAVIDI GILO (hereinafter
“Gilo”).
RECITALS
A.
The Corporation has employed Gilo as
Chief Executive Officer and Chairman of the Corporation’s
Board of Directors pursuant to the terms of an Employment Agreement
between the Corporation and Gilo made and entered into as of
February 10, 2006 (the “Effective Date”). As of the
Restatement Date, the Corporation shall employ Gilo as the
Corporation’s Chairman of the Board of Directors, subject to
election to the Board of Directors by the Corporation’s
stockholders and until Gilo’s successor is duly appointed and
elected.
B.
In connection with Gilo’s
employment with the Corporation, the Corporation and Gilo desire to
enter into this Agreement according to the terms and conditions set
forth below.
AGREEMENT
NOW, THEREFORE,
the parties hereto hereby agree as
follows:
1.
Employment
Duties .
a.
General
.
The Corporation hereby agrees to
employ Gilo, and Gilo hereby agrees to accept employment with the
Corporation, on the terms and conditions hereinafter set
forth.
b.
Corporation’s
Duties . The Corporation shall allow Gilo to, and Gilo
shall, perform responsibilities normally incident to the position
of Chairman of the Board of Directors, commensurate with his
background, education, experience and professional standing.
The Corporation shall provide Gilo with such office equipment,
supplies, customary services and cooperation suitable for the
performance of his duties.
c.
Gilo’s
Duties . Unless otherwise agreed to by
the parties, Gilo shall serve as Chairman of the Board of the
Corporation, subject to the vote of the stockholders and Board of
Directors as applicable, and until Gilo’s successor is duly
appointed and elected. Gilo shall devote approximately twenty
(20) hours per week to the business of the Corporation, and
shall
not become engaged to render similar
services on behalf of any other entity while employed hereunder
which is in any way competitive to the Corporation, without the
consent of the Corporation’s Board of Directors. Gilo
shall report directly to the Corporation’s Board of
Directors.
2.
Term
.
The initial term of this employment
agreement is three (3) years from the Effective Date (the
“Initial Term”). Thereafter, this Agreement may
be renewed by Gilo and the Corporation on such terms as the parties
may agree to in writing. Absent written notice to the
contrary, thirty (30) days prior to the end of the Initial Term,
this Agreement will be automatically renewed for consecutive one
(1) year extensions (together with the Initial Term, the
“Term”). Should the Initial Term not be renewed
after the expiration of the first three (3) year term, Gilo shall
be entitled to eighteen (18) months salary as severance in exchange
for a release as to any and all claims Gilo may have against the
Corporation.
3.
Compensation
.
Gilo shall be compensated as
follows:
a.
Fixed Salary
.
Gilo shall receive a fixed annual
salary of Two Hundred Thousand Dollars ($200,000). The
Corporation agrees to review the fixed salary on or before December
31, 2007, and thereafter at the end of each calendar year during
the Term based upon Gilo’s services and the financial results
of the Corporation, and to make such increases as may be determined
appropriate in the sole discretion of the Corporation’s
Compensation Committee or Board of Directors.
b.
Payment
.
Gilo’s fixed salary shall be
payable on a semi-monthly basis, in accordance with the
Corporation’s usual payroll practices.
c.
Bonus
Compensation . During the Term, Gilo shall participate in such
bonus plan(s) adopted by the Corporation’s Board of
Directors, from time to time. Gilo shall be entitled to
receive an additional annual bonus based on his performance and
that of the Corporation each year as determined by the Board of
Directors of this Corporation, or its Compensation Committee.
The bonus shall be prorated should Gilo’s employment
terminate prior to the full calendar year.
d.
Stock Options
.
Gilo shall be eligible for certain
stock options that may be awarded by the Corporation, from time to
time.
e.
Vacation
. Gilo shall accrue
paid vacation at the rate of thirty (30) days for each twelve (12)
months of employment. Gilo shall be compensated at his usual
rate of compensation during any such vacation. Gilo shall be
entitled to paid holidays as generally given by the
Corporation. Gilo shall receive sick leave or disability
leave in accordance with the terms of the Corporation’s
standard sick leave or disability leave policy.
f.
Benefits
. During the Term,
Gilo and his dependents shall be entitled to participate in any
group plans or programs maintained by the Corporation for any
employees relating to group health, disability, life insurance and
other related benefits as in effect from time to time.
2
Gilo shall also be entitled to
Director and Officer (“D&O”) insurance in such
amounts and coverage and such indemnification provisions as are
afforded other officers and directors of the Corporation.
Benefits under this Section 3.f. will be paid by the
Corporation.
g.
Expenses
. The Corporation
shall reimburse Gilo for his normal and reasonable expenses
incurred for travel, entertainment and similar items in promoting
and carrying out the business of the Corporation in accordance with
the Corporation’s general policy as adopted by the
Corporation’s management from time to time. In
addition, Gilo 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 a Chairman of the Board of Directors. As a
condition of payment or reimbursement, Gilo agrees to provide the
Corporation with copies of all available invoices and receipts, and
otherwise account to the Corporation in sufficient detail to allow
the Corporation 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
Corporation’s reimbursement policies.
4.
Confidentiality and
Competitive Activities . Gilo agrees that during the
Term he is in a position of special trust and confidence and has
access to confidential and proprietary information about the
Corporation’s business and plans. Gilo agrees that he
will not directly or indirectly, either as an employee, employer,
consultant, agent, principal, partner, stockholder, corporate
officer, director, or in any similar individual or representative
capacity, engage or participate in any business that is in
competition, in any manner whatsoever, with the Corporation.
Notwithstanding anything in the foregoing to the contrary, Gilo
shall
