This Separation Agreement and Release (the "Agreement") is between VYYO INC. ("Vyyo") and MICHAEL CORWIN ("Mr. Corwin"). The terms "Michael Corwin" and "Mr. Corwin" include Michael Corwin 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").
• Mr. Corwin has been employed by Vyyo pursuant to that Employment Agreement dated January 1, 2000, as amended by that letter dated May 13, 2005 (collectively the "Employment Agreement").
• Mr. Corwin and Vyyo agree that the Employment Agreement is hereby terminated on and as of January 31, 2005 (the "Termination Date").
• Even though Mr. Corwin has made no claims against Vyyo, Mr. Corwin and Vyyo desire to resolve any and all claims and potential claims Mr. Corwin may have against Vyyo.
ACCORDINGLY, the parties agree as follows:
1. Termination of Employment.
(a) Except as set forth herein, Mr. Corwin's employment with Vyyo shall terminate on the Termination Date.
(b) As of the Termination Date, and except as provided herein, Mr. Corwin's duties at Vyyo shall cease. Effective as of that date Mr. Corwin shall also cease to be a director, officer, or employee, as applicable, of Vyyo (except as provided in this Agreement) and any Vyyo subsidiaries of which he is a director, officer, or employee.
2. Separation Consideration and Consultancy Engagement.
(a) Severance. On the Effective Date, or as soon as practicable thereafter, Vyyo will pay to Mr. Corwin as severance the amount of One Hundred Twenty Five Thousand Dollars ($125,000.00), which amount constitutes six (6) month's salary, subject to applicable tax withholding and in accordance with Vyyo's usual payroll practices.
(b) Reimbursable Expenses. To the extent Mr. Corwin has not already done so, Mr. Corwin will promptly submit to Vyyo, and Vyyo will promptly reimburse Mr. Corwin for, all of Mr. Corwin's business expenses (incurred consistent with Vyyo's policies in effect on the Termination Date) attributable to the period on or before the Termination Date.
(c) Consultancy Engagement. Commencing February 1, 2006 and continuing until January 31, 2007 (the "Consulting Period"), Mr. Corwin shall be engaged by Vyyo as a consultant to perform such services as shall be agreed to, in writing, by and between Vyyo and Mr. Corwin. In consideration of Mr. Corwin's consulting services hereunder, Vyyo shall pay to Mr. Corwin One Thousand Two Hundred Ninety Five and Fifty-five Hundredths Dollars ($1,295.55) per month, constituting the cost of health insurance premiums for the Consulting Period (which amount may be paid directly to the health insurance provider in Vyyo's sole discretion), subject to applicable tax and in accordance with Vyyo's usual payroll practices.
(d) Options Status. The vesting of 79,168 of Mr. Corwin's outstanding stock options (being the options remaining unvested as of January 31, 2006 from grant nos. 923 and 924) shall be accelerated, so that, when combined with his other vested options, as of the Termination Date Mr. Corwin shall hold fully-vested options to purchase 337,617 shares of Vyyo common stock (the "Vested Options"). The vesting of all remaining outstanding options held by Mr. Corwin shall immediately cease, and Mr. Corwin shall forfeit any and all rights to such options. For the avoidance of doubt, Mr. Corwin will be allowed to exercise the Vested Options (and only the Vested Options) as set forth above no later than ninety (90) days after the last day of the Consulting Period. In the event of any inconsistency between any Stock Option Agreement and this Agreement, the provisions of this Agreement shall control.
3. Employee Proprietary Information and Inventions Agreement. Mr. Corwin acknowledges that he is bound by the Employee Proprietary Information and Inventions Agreement executed in connection with Mr. Corwin's commencement of employment, and as a result of such employment with Vyyo Mr. Corwin had access to Vyyo's proprietary information and trade secrets. Mr. Corwin 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. Corwin 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.
4. Release. Except as set forth in the second paragraph of this Section, Mr. Corwin and Vyyo (each, a "Releasing Party") hereby 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 Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991, 42 U.S.C. Section 1981, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Employee Retirement Income Security Act, the California Fair Employment and Housing Act, the California Labor and Civil Codes, the California Constitution, the Federal Rehabilitation Act of 1973, the Federal Family and Medical Leave Act, the California Family Rights Act, the federal Worker Adjustment and Retraining Notification Act, the California Worker Adjustment and Retraining Notification Act as well as any claims asserting wrongful or constructive termination or discharge; discrimination; retaliation; harassment; breach of contract, express or implied; breach of the covenant of good faith and fair dealing, express or implied; defamation; misrepresentation; fraud; negligent or intentional infliction of emotional distress; any claims under federal, state or municipal statute or ordinance; or any other claim of any sort. Released Claims also shall include, but not be limited to, claims for wages or other compensation, severance pay, bonuses, sick leave, vacation pay, life or health insurance or any other fringe benefit. 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 i