This Release Agreement involves
Title: EXHIBIT 10.9 SEPARATION AGREEMENT AND RELEASE
Governing Law: California Date: 3/31/2006
Industry: Communications Equipment Sector: Technology
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This Separation Agreement and Release (the "Agreement") is between VYYO INC. ("Vyyo") and ANDREW FRADKIN ("Mr. Fradkin"). The terms "Andrew Fradkin" and "Mr. Fradkin" include Andrew Fradkin 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. Fradkin has been employed by Vyyo in the capacity as Secretary and General Counsel (the "Employment").
• Mr. Fradkin and Vyyo agree that the Employment is hereby terminated on and as of February 17, 2006 (the "Termination Date").
• Even though Mr. Fradkin has made no claims against Vyyo, Mr. Fradkin and Vyyo desire to resolve any and all claims and potential claims Mr. Fradkin may have against Vyyo.
ACCORDINGLY, the parties agree as follows:
1. Termination of Employment.
(a) Except as set forth herein, Mr. Fradkin's Employment with Vyyo shall terminate on the Termination Date.
(b) As of the Termination Date, and except as provided herein, Mr. Fradkin's duties at Vyyo shall cease. Effective as of that date Mr. Fradkin 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. Fradkin as severance the amount of One Hundred Ten Thousand Dollars ($110,000.00), which amount constitutes six (6) months salary, subject to applicable tax withholding and in accordance with Vyyo's usual payroll practices.
(b) Bonus. Vyyo will pay to Mr. Fradkin a bonus in the amount of Fifty Thousand Dollars ($50,000.00) upon the closing by Vyyo of a "Financing Event," provided the Financing Event occurs on or before May 31, 2006. For purposes of this paragraph, the term "Financing Event" shall mean the receipt of $10,000,000 or more by Vyyo in one or more related transactions of equity or debt, or a combination of equity or debt.
(c) Reimbursable Expenses. To the extent Mr. Fradkin has not already done so, Mr. Fradkin will promptly submit to Vyyo, and Vyyo will promptly reimburse Mr. Fradkin for all of Mr. Fradkin'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.
(d) Consultancy Engagement. Commencing February 18, 2006 and continuing until December 31, 2006 (the "Consulting Period"), Mr. Fradkin shall be engaged by Vyyo as a consultant to perform such services as shall be agreed to by and between Vyyo and Mr. Fradkin from time to time. In consideration of Mr. Fradkin's consulting services hereunder, Vyyo shall pay
to Mr. Fradkin (i) Forty Two Thousand Dollars ($42,000), payable in one installment of $2,000 (for the period February 18 through February 28, 2006) and ten equal monthly installments each in the amount of Four Thousand Dollars ($4,000), and (ii) One Thousand Two Hundred Ninety-Five Dollars Fifty-Five Cents ($1,295.55) per month during the Consulting Period, constituting the cost of health insurance premiums for the Consulting Period, as may be adjusted to account for rate changes (which amount may be paid directly to the health insurance provider in Mr. Fradkin's sole discretion), subject to applicable tax and in accordance with Vyyo's usual payroll practices.
(e) Options Status. During the Consulting Period Mr. Fradkin's outstanding stock options under Vyyo's stock option plan(s) shall continue to vest according to their terms. For the avoidance of doubt, Mr. Fradkin will be allowed to exercise his stock options (that shall be vested on or before December 31, 2006) no later than 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. Fradkin acknowledges that he is bound by the Employee Proprietary Information and Inventions Agreement executed in connection with Mr. Fradkin's commencement of employment, and as a result of such employment with Vyyo Mr. Fradkin had access to Vyyo's proprietary information and trade secrets. Mr. Fradkin 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. Fradkin 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. Fradkin 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 indemnification obligations created by or reaffirmed in any indemnification agreement between the parties hereto, in the Bylaws or Certificate of Incorporation of Vyyo, or under applicable state laws and regulations; or (c) any claims, rights, demands, actions, obligations, liabilities and causes of action of every kind and character which Vyyo has or may have in the future as a result of the gross negligence or willful
misconduct of Mr. Fradkin. Moreover, the release in this Agreement shall not interfere with Mr. Fradkin's ability to participate in any manner in an investigation, proceeding or hearing conducted by the federal Equal E