EMPLOYMENT AGREEMENT
AGREEMENT, dated as of January __, 1998 between AMBIENT
CORPORATION, ("Ambient") a Delaware corporation with offices at Jerusalem
Technological Park Building One, Malha, Jerusalem, Israel (the "Company"), and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual residing at ___________ ("Executive"):
W I T N E S S E T H
WHEREAS, the Company desires to employ Executive upon the
terms and conditions of this Employment Agreement;
WHEREAS, Executive desires to be employed by the Company upon
the terms and conditions of this Employment Agreement;
NOW, THEREFORE, in consideration of the mutual provisions,
representations and warranties set forth below, and for other good and valuable
consideration, it is hereby agreed as follows:
1. Employment. Subject to the terms and conditions of this
Agreement the Company employs Executive and Executive hereby accepts such
employment.
2. Term. Executive shall be employed under this Agreement for
a period of two years commencing on the date hereof (such period, and any
extension thereof pursuant to this Section 2, is referred to herein as the
"Term"), unless sooner terminated as hereinafter set forth. Subject to the
provisions of Section 8, after the expiration of such initial period, this
Agreement shall automatically be renewed for successive one-year periods, on all
the remaining terms and conditions set forth herein, unless either party elects
not to renew this Agreement by giving written notice to the other at least 90
days before a scheduled expiration date.
3. Position and Duties. Executive shall serve as the Chairman
of the Board of Directors, President and Chief Executive Officer of the Company
and its subsidiary, Ambient Israel (all references hereinafter to the "Company"
shall include Ambient Israel unless the context clearly requires otherwise). In
such capacity Executive shall perform the service and duties required of
Executive and shall perform such other services and duties, consistent with such
position as from time to time may be prescribed by the Board of Directors of the
Company (the "Board"). During the Term, Executive shall perform and discharge
well and faithfully all duties that may be assigned to him by the Company from
time to time in accordance with this Agreement to the reasonable satisfaction of
the Company, and Executive shall devote his best talents, efforts and abilities
to the
performance of his duties hereunder. Executive shall devote at least 75% of his
business time to the Company and, without the express prior written consent of
the Board, Executive shall have no employment or related outside business
activities whatsoever other than those activities previously disclosed to the
Board as of the date of this Agreement.
4. Compensation. (a) Executive shall be paid a base salary of
$__________ per year during the Term (the "Base Salary"), as convertible into
new Israeli shekels pursuant to the applicable exchange rate on the date of
payment. The Company shall pay the Base Salary to Executive in equal
semi-monthly installments. The Base Salary shall be reviewed periodically by the
Board and shall be subject to such increases as the Board, in its sole
discretion, from time to time may determine.
(b) In addition to the Base Salary, the
Executive shall be entitled to such bonus or bonuses as the Board in its
discretion may determine to award to Executive from time to time. The amount
of any bonus shall be prorated for a fraction of the year.
(c) All payments required to be made by the
Company to Executive under this Agreement shall be subject to withholding
taxes, social security and other payroll deductions in accordance with the
Company's policies applicable to employees of the Company, the provisions of
applicable benefit plans and applicable law.
5. Benefit Plans. During the term of this Agreement, Executive
shall be eligible to participate, subject to meeting any eligibility
requirements, in the Company's benefit plans and programs in effect from time to
time and made available by the Company to its senior employees (as the same may
be supplemented, amended or replaced, the "Benefit Plans"). The Company shall
have the right, from time to time, in its discretion, to the extent permitted by
applicable law, to supplement, amend, replace or terminate any or all of the
benefit plans and programs then in effect, reduce the benefits provided
thereunder, or increase the amount of Executive's contribution required
thereunder. Any benefits to which Executive may be entitled under the foregoing
plans shall be provided to him in accordance with the respective terms thereof.
6. Vacations; Holidays; and Sick Days. (a) Executive shall be
entitled to ___________ days paid vacation during each year of the term of this
Agreement. Such days must be taken at times mutually convenient to the Company
and Executive and are subject to the reasonable advance approval of the Company.
All requests for such days shall be made by Executive in accordance with the
Company's policies in effect from time to time. Unused vacation days may not be
carried over to succeeding years of employment.
(b) Executive shall also be entitled, with pay,
to those holidays regularly celebrated in Israel and for which the Israeli
office of the Company shall be closed.
(c) Executive shall be entitled to ______ (__)
days paid time due to Executive's illness in each year of the Executive's
employment. All requests for sick days
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shall be made by Executive in accordance with the Company's policies in effect
from time to time.
7. Expenses. During the term of this Agreement, the
Company shall pay or reimburse Executive promptly for all reasonable business
expenses actually incurred or paid by Executive in the performance of his
services hereunder in accordance with the Company's policy for reimbursements.
8. Termination. The employment of Executive may be
terminated prior to the expiration of the Term in the manner described in this
Section 8.
(a) Certain Definitions. For purposes of this
Agreement, the following terms shall have the following meanings:
(i) An "Affiliate" of any Person means
any other Person directly or indirectly through one or more intermediary
Persons, controlling, controlled by or under common control with such Person.
For purposes of this definition, "control" shall mean the power to direct the
management and policies of such Person, directly or indirectly, by or through
stock ownership, agency or otherwise, or pursuant to or in connection with an
agreement, arrangement or understanding (written or oral) with one or more other
Persons by or through stock ownership, agency or otherwise; and the terms
"controlling" and "controlled" shall have meanings correlative to the foregoing.
(ii) "Cause" means the occurrence of any
of the following events:
a. Executive neglects to
perform any of his material duties hereunder, breaches any of the other material
terms of this Agreement, or fails or refuses to comply with reasonable
directives given to him from time to time by the Board of the Company and fails
to cure such breach within the time period given to him by the Board, if any, to
cure such breach;
b. Executive is convicted of
a crime involving moral turpitude whether or not committed in the course of
performing services for the Company;
c. Executive is determined,
by the Board in its reasonable determination, to be dependent on the use of
drugs and alcohol;
d. Executive commits an act of
fraud, embezzlement, dishonesty, misappropriation, disloyalty or breach of
fiduciary duty against the Company or any Affiliate in the reasonable
determination of the Board;
e. Executive is convicted of
any felony under applicable law or has entered a plea of guilty or nolo
contendere with respect thereto or Executive is convicted of another crime which
in the reasonable determination of the Board
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adversely affects Executive's performance of his duties and responsibilities
under this Agreement or adversely affects the reputation of the Company or any
of its Affiliates; or
f. Executive shall breach his
obligations under Sections 9 and 11 hereunder.
(iii) "Person" means any individual,
corporation, partnership, association, joint-stock company, trust,
unincorporated organization, joint venture, entity, court or government (or
political subdivision or agency thereof).
(b) Termination by the Company for Cause.
The Company shall have the right to terminate the employment of Executive for
Cause by written notice to Executive specifying the particulars of the conduct
of Executive forming the basis for such termination.
(c) Termination upon Death. The employment of
Executive hereunder shall terminate immediately upon his death.
(d) The Company's Options upon Disability.
If Executive becomes physically or mentally disabled during the Term so that he
is unable to perform the services required of him pursuant to this Agreement for
a period of six successive months, or an aggregate of six months in any
twelve-month period (the "Disability Period"), the Company shall have the
option, in its discretion, by giving written notice thereof, either to (i)
terminate Executive's employment hereunder; or (ii) continue the employment of
Executive hereunder upon all the terms and conditions set forth herein except
that for the balance of the Term the Executive shall receive a Base Salary equal
to 50% of the Base Salary then in effect. Regardless of which option the Company
exercises or shall be deemed to have exercised, during the Disability Period,
Executive shall continue to receive his full compensation and other benefits
provided herein net of any payments received under any disability policy or
program of which Executive is a beneficiary or recipient.
(e) Termination Date. Any notice of termination
given pursuant to the provisions of this Agreement shall specify therein the
effective date of such termination (the "Termination Date").
(f) Obligation on Termination. The Company's
sole obligations on termination of Executive's employment shall be as follows:
(i) Upon termination of Executive's
employment for any reason, the Company shall pay to Executive: (a) all accrued
and unpaid amounts earned, and all expenses properly incurred, at the time of
termination, which payment shall be made in such manner and at such time as
otherwise payable hereunder and shall be subject to the other terms and
conditions of this Agreement; and (b) all amounts otherwise required to be paid
under applicable law governing the employment relationship.
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(ii) Upon termination of Executive's
employment by the Company for any reason other than death, disability pursuant
to Section 8(d), Cause or voluntary resignation, the Company shall pay Executive
an additional amount equal to the Base Salary in effect during the Term year
that his employment is terminated; provided, however, that in the event the
aggregate amount of all payments to be received by Executive on account of
salary, stock options or other compensation would constitute an "excess
parachute payment" under the Internal Revenue Code and applicable regulations as
then in effect, then such amounts shall be reduced accordingly so as to not
constitute an "excess parachute payment" (collectively, the "Severance
Payment").
(iii) Upon the termination of Executive's
employment with the Company other than for death, Cause, voluntary resignation
or disability (which shall be governed by Section 8(d)), to the extent permitted
by applicable law, the Company shall continue to provide Executive, at his cost,
with medical and hospitalization insurance coverage for a period of not longer
than one year.
9. Trade Secrets; Confidentiality. Executive recognizes and
acknowledges that, in connection with his employment with the Company, he will
have access to valuable trade secrets, confidential information and other
proprietary information of the Company and their respective Affiliates
(collectively, "Confidential Information"), including, but not limited to,
software codes, operating and technical methods, technology, customer lists,
business methods and processes and marketing, pricing, promotional and financial
information, and that these are special and unique assets of the Company and/or
for their respective Affiliate's businesses that are made available to Executive
only in connection with the furtherance of his employment with the Company.
Executive agrees that he shall not at any time disclose any of such Confidential
Information to any Person, directly or indirectly, or use same for any reason or
purpose whatsoever, except: (i) in connection with the performance of his duties
under this Agreement; or (ii) with the express prior written consent of the
Company; or (iii) as required by law with prior written notice to the Company.
The provisions of this Section 9 shall survive the termination of this
Agreement.
10. Return of Property. In the event of the termination of
Executive's employment with the Company, regardless of the reason for such
termination, Executive shall immediately: (i) return to the Company all
documents, material, information and other property of the Company or any
Affiliate (including, but not limited to, keys, records, notes, data, memoranda,
models and equipment) whether or not such property constitutes Confidential
Information and (ii) purge or destroy any computerized, duplicated, copied or
other records, extracts or summaries of any such information. The provisions of
this Section 10 shall survive the termination of this Agreement.
11. Restrictive Covenants; Equitable Relief. (a) During the
Term and for a period of two years immediately following the termination of
Executive's employment for any reason, Executive agrees that he will not engage
in or have any financial interest in any business enterprise in competition with
the Company. For purposes of this Section 11(a):
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(i) A business enterprise in competition
with the Company shall mean any enterprise which engages in any business similar
to that conducted by the Company or Ambient Israel or any of future direct or
indirect subsidiary of the Company during the 12 months preceding the date of
Executive's termination of employment which enterprise operates anywhere within
a radius of [___] miles of any office maintained by the Company, Ambient Israel
or any direct or indirect future subsidiary of the Company as of the date of
termination of employment; and
(ii) Executive shall be deemed to be
engaged in or to have a financial interest in such business enterprise if he is
an employee, officer, director, trustee, agent, consultant or partner of any
Person which is engaged in such business or if he owns, directly or indirectly,
stock, partnership, member interests or other securities of such Person or any
securities convertible into or exchangeable for any of the foregoing or
otherwise has any equity or beneficial interest in such Person; provided,
however, that the ownership of 1% or less of the outstanding shares of a class
of security, which is regularly traded on a national securities exchange or
quoted in an automated inter-dealer quotation system, shall not be deemed to be
engaging or having a financial interest in the business of such Person.
(b) During the Term and for a period of two
years immediately following the termination of Executive's employment, Executive
agrees that he will not directly or indirectly hire or solicit any employee of
the Company or any Affiliate or who was an employee of the Company or any
Affiliate at any time within the three-month period immediately prior thereto or
encourage an employee or agent of the Company to terminate such employment or
agency relationship.
(c) Executive acknowledges and agrees that the
restrictive covenants set forth in Sections 9, 10 and 11 (the "Restrictive
Covenants") are reasonable and valid in geographical and temporal scope and in
all other respects. If any court of competent jurisdiction determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable,
the remainder of the Restrictive Covenants shall not thereby be affected and
shall be given full force and effect, without regard to the invalid or
unenforceable parts. If any court of competent jurisdiction determines that any
of the Restrictive Covenants, or any part thereof, is invalid or unenforceable
for any reason, such court shall have the power to modify such Restrictive
Covenant, or any part thereof, and, in its modified form, such Restrictive
Covenant shall then be valid and enforceable. Executive acknowledges that any
breach by him of Sections 9, 10 or 11 hereof will cause the Company irreparable
harm for which there is no adequate remedy at law. As a result, the parties
acknowledge and agree that in the event of a breach by Executive of any of the
covenants contained in Sections 9, 10 or 11 hereof, the Company shall be
entitled to the issuance of a temporary restraining order, a preliminary
injunction, a permanent injunction restraining Executive from breaching or
continuing to breach any of said covenants and/or any other equitable remedy or
relief. Nothing herein contained shall be construed as prohibiting the Company
from pursuing any other remedies that may be available to it, whether at law or
in equity, for such breach including the recovering of damages. The provisions
of this Section 11 shall survive the termination of this Agreement.
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12. Severability. Should any provision of this Agreement be
held, by a court of competent jurisdiction, to be invalid or unenforceable, such
invalidity or unenforceability shall not render the entire Agreement invalid or
unenforceable, and this Agreement and each individual provision hereof shall be
enforceable and valid to the fullest extent permitted by law.
13. Successors and Assigns. This Agreement and the benefits
hereunder are personal to the Company and are not assignable or transferable by
Executive. The services or any specified portion thereof to be performed by
Executive hereunder may be assigned by the Company to any of its Affiliates.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the Company and it successors and assigns and Executive and his heirs
and legal representatives.
14. Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to the conflicts of the laws and rules thereof.
15. Notices. (a) Any notice or other communication
required or permitted hereunder shall be in writing and shall be delivered
personally by hand or by recognized overnight courier, telecopied or mailed as
follows:
(i) If to the Company, to:
Ambient Israel
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Telecopier: 011-972-2-649-0612
Attn: Chief Financial Officer
with a copy to:
▇▇▇▇ Marks & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(ii) If to Executive, to:
---------------
----------------
----------------
Telecopier: ________________
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(b) Each such notice or other communication
shall be effective (i) if given by telecopier, when such telecopy is transmitted
to the telecopier number specified in Section 15(a) (with confirmation of
transmission) (ii) if mailed by registered or certified mail, postage prepaid,
three (3) business days after deposit in the mails or (iii) if given by any
other means, when delivered at the address specified in Section 15(a). Any party
by notice given in accordance with this Section 15 to the other party may
designate another address (or telecopier number) or person for receipt of
notices hereunder. Notices by a party may be given by counsel to such party.
16. Complete Understanding. This Agreement supersedes any
prior contracts, understandings, discussions and agreements relating to
employment between Executive and the Company and constitutes the complete
understanding between the parties with respect to the subject matter hereof. No
statement, representation, warranty or covenant has been made by either party
with respect to the subject matter hereof except as expressly set forth herein.
17. Modification; Waiver. This Agreement may be amended or
waived if, and only if, such amendment or waiver is in writing and signed, in
the case of any amendment, by the Company and Executive or, in the case of a
waiver, by the party against whom the waiver is to be effective. Any such waiver
shall be effective only to the extent specifically set forth in such writing. No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege.
18. Representations. Executive represents and warrants to the
Company that he has full power to enter into this Agreement and to perform his
obligations hereunder and that the execution and delivery of this Agreement and
the fulfillment of the terms hereof (i) do not constitute a default under or
conflict with any agreement or other instrument or arrangement whether written
or oral to which he is a party or by which he is bound and (ii) do not require
the consent of any Person.
19. Headings. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of this Agreement.
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20. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. This Agreement
shall become effective when each party hereto shall have received counterparts
hereof signed by the other party hereto.
IN WITNESS WHEREOF, the Company has caused this Employment
Agreement to be duly executed in its corporate name by one of its officers duly
authorized to enter into and execute this Agreement, and Executive has manually
signed his name hereto, all as of the day and year first above written.
AMBIENT CORPORATION
By:
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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