Exhibit 10.12
SEPARATION AGREEMENT AND
RELEASE
This Separation Agreement and Release (the
“ Agreement ”) is between VYYO INC .
(“ Vyyo ”) and Avner Kol (“
Mr. Kol ”). The terms “ Avner
Kol ” and “ Mr. Kol ” include
Avner Kol 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 ”).
RECITALS
·
Effective January 30, 2008 (the “ Termination
Date ”), Mr. Kol’s employment with Vyyo
terminated.
·
Even though Mr. Kol has made no claims against Vyyo,
Mr. Kol and Vyyo desire to resolve any and all claims and
potential claims Mr. Kol may have against Vyyo.
·
This Agreement supersedes all previous agreements and
understandings regarding Mr. Kol’s employment with Vyyo
or his termination of employment with Vyyo, including, but not
limited to, the offer letter dated November 1, 2005 and any
prior severance agreements. This Agreement is also an
amendment of the offer letter for purposes of compliance with
Section 409A of the Internal Revenue Code (“
Section 409A ”).
ACCORDINGLY, the parties agree as
follows:
1.
Termination of
Employment . Mr. Kol’s employment with
Vyyo terminated on the Termination Date in a manner that
constituted a “separation from service” under
Section 409A. As of the Termination Date,
Mr. Kol’s duties at Vyyo ceased.
2.
Separation
Consideration .
(a)
Severance . In exchange for this Agreement, Vyyo will
pay to Mr. Kol as severance One Hundred Four Thousand One
Hundred Sixty-Six Dollars and Sixty-Seven Cents ($104,166.67),
which amount constitutes five (5) month’s salary,
subject to applicable tax withholding (“ Severance
Payment ”). The Severance Payment consists of the
severance payments set forth in Mr. Kol’s offer letter
dated November 1, 2005, and is inclusive of all amounts due
and/or payable by Vyyo to Mr. Kol however classified,
including any accrued paid-time off and any relocation
expenses. The Severance Payment will be made in the form of
salary continuation payments and will be paid on regular Vyyo
paydays. Payments hereunder will commence the first payday as soon
as administratively possible after this Agreement has been fully
executed and received by Vyyo’s Legal Department and the
applicable revocation periods described in this Agreement have
expired. Mr. Kol understands that Vyyo may change
payroll dates or schedules, or otherwise modify its payroll plans
for its active employees, and that to the extent he is entitled to
any such coverage after the Termination Date, those changes will be
applied to him as well, unless the change would violate
Section 409A. Except as required by applicable law or
provided in this Agreement, as of the Termination Date,
Mr. Kol will cease to be eligible to participate under, or
covered by, any insurance or self-insured welfare benefit, bonus,
incentive compensation, commission, life insurance, retirement or
other compensation or benefit plans, and has no rights under any of
those plans, unless the terms of the plan provide for coverage
following separation from employment. The Severance Payment
will be paid in full no later than December 31,
2008.
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(b)
COBRA . If Mr. Kol elects COBRA coverage under
Vyyo’s health insurance plans, Vyyo shall pay to Vyyo’s
health insurance provider One Thousand Six Hundred Ninety-One
Dollars and Seventy Cents ($1,691.70) per month, constituting the
cost of Mr. Kol’s health insurance premiums for the
period beginning on the Effective Date and continuing through the
earlier of the date that Mr. Kol is covered under a health
insurance program other than through Vyyo or December 31,
2008, subject to applicable tax and paid on regular Vyyo
paydays. If Mr. Kol elects COBRA coverage under
Vyyo’s health insurance plans, Mr. Kol shall have an
affirmative obligation to promptly advise Vyyo when he is covered
under another health insurance program or plan, after which time
Vyyo’s obligation to make the payments in this
Section 2(b) shall immediately cease.
(c)
Reimbursable Expenses . To the extent Mr. Kol has
not already done so, he will promptly submit to Vyyo, and Vyyo will
promptly reimburse him for, all of his 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)
Status of Stock Options . As of
December 31, 2008, Mr. Kol shall hold fully-vested stock
options to purchase 237,334 shares of Vyyo common stock (being
40,000 shares vested under grant number 880, the exercise period of
which shall be extended to March 31, 2009 as set forth below
in this section; 12,643 shares vested under grant number 1360;
53,233 shares vested under grant number 1361; 80,000 shares vested
under grant number 1444; and 51,458 shares vested under grant
number 1497) (the “ Vested Options ”). The
remaining unvested stock options under grant numbers 1185, 1186,
1194, 1195, 1202, 1203, 1360, 1361, 1496 and 1497 shall be
forfeited and Mr. Kol shall have no further rights in such
grants. As of the Termination Date and
December 31, 2008, Mr. Kol does not and will not hold any
other stock options, exercisable and outstanding or
otherwise. For the avoidance of doubt, Mr. Kol will be
allowed to exercise the Vested Options (and only the Vested
Options) as set forth above no later than three (3) months
after December 31, 2008, being March 31, 2009. In
the event of any inconsistency between any stock option agreement
and this Agreement, the provisions of this Agreement shall
control.
(e)
Delay in Payment . Notwithstanding any other timing
provision in this Agreement, if, at the time the Severance Payment
would commence, Mr. Kol is a “specified employee”
as defined by Section 409A, then to the extent necessary to
avoid the imposition of excise taxes or other penalties under
Section 409A, no payment may be paid before the date that is
six months after the termination of Mr. Kol’s
employment. Payments to which Mr. Kol would otherwise
have been entitled during that six months will be accumulated and
paid on the first day after six months following the date of
Mr. Kol’s termination of employment. All payments
that would otherwise be made more than six months following the
date of Mr. Kol’s termination of employment will be made
in accordance with the general timing provisions described
above.
3.
Employee Proprietary
Information and Inventions Agreement . Mr. Kol acknowledges that he
is bound by the Employee Proprietary Information and Inventions
Agreement executed in connection with his commencement of
employment, and as a result of such employment with Vyyo,
Mr. Kol had access to Vyyo’s proprietary information and
trade secrets. Mr. Kol 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. Kol 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.
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4.
Release . Except as set forth in the second paragraph
of this Section, Mr. Kol and Vyyo (each, a “
Releasing Party ”) hereby unconditionally, irrevocably
and 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 (a) Title VII of the Civil Rights Act of 1964 or the
Civil Rights Act of 1991, which prohibit discrimination based on
race, color, national origin, ancestry, religion or sex;
(b) the Age Discrimination in Employment Act, which prohibits
discrimination based on age; (c) the Equal Pay Act, which
prohibits paying men and women unequal pay for equal work;
(d) the Americans with Disabilities Act and Sections 503 and
504 of the Rehabilitation Act of 1973, which prohibit
discrimination based on disability; (e) the federal Worker
Adjustment and Retraining Notification Act (WARN) and any similar
applicable state statute or regulation, which require that advance
notice be given of certain workforce reductions; (f) the
Employee Retirement Income Security Act and any similar applicable
state statute or regulation, which, among other things, protects
employee benefits; (g) the Fair Labor Standards Act of 1938
and any similar applicable state statute or regulation, which
regulate wage and hour matters; (h) the Family and Medical
Leave Act and any similar applicable state statute or regulation,
which require employers to provide leaves of absence under certain
circumstances; (i) the Sarbanes-Oxley Act of 2002, which,
among other things, provides whistleblower protection; (j) the
labor and civil codes and constitution of any applicable state; or
(k) any other law prohibiting retaliation based on exercise of
a Released Party’s rights under any law, providing
whistleblowers protection or otherwise prohibiting retaliation;
providing workers’ compensation benefits; protecting union
activity; mandating leaves of absence; prohibiting discrimination
based on veteran status, military service or any other factors;
restricting an employer’s right to terminate employees or
otherwise regulating employment; enforcing express or implied
employment contracts; requiring an employer to deal with employees
fairly or in good faith; providing recourse for alleged wrongful or
constructive termination or discharge; tort, physical or personal
injury, emotional distress, fraud, negligent misrepresentation,
defamation and similar or related claims and any other law relating
to salary, commission, compensation, benefits and other
matters. Mr. Kol specifically represents that he has not
been treated adversely on account of age,
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