EXHIBIT 10.27
AGREEMENT
AGREEMENT made this 4th day of September 2000 (the "Effective Date"), between
Ambient Corporation a Delaware Corporation ("Ambient"), and Xxxxxxx Xxxxx,
Israel ID # 31788407 ("Xxxxxx").
W I T N E S S E T H
WHEREAS, Xxxxxx currently holds the position of Vice President of Ambient
(the "Position") and the position of Chief Executive Officer of Xxxxx.xxx Ltd.
("Kliks") an affiliate of Ambient and is a director of Kliks.
WHEREAS, Ambient and Xxxxxx desire to settle certain outstanding issues
including without limitation the resignation by Xxxxxx from the Position
amicably on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the terms and conditions hereafter set
forth the adequacy and sufficiency of which are hereby acknowledged, the parties
agree as follows:
1. Agreement by Xxxxxx. Subject to the terms and conditions set forth herein and
in consideration of the Settlement Amount and the releases contained herein (a)
Xxxxxx hereby resigns from the Position (b) acknowledges and agrees that his
signature hereafter set forth below and delivery of this Agreement shall serve
as notice to the Board of Directors of Ambient of such resignation.
2. Agreement by Ambient. Subject to Xxxxxx continuing to act as Chief Executive
Officer and director of Kliks, Ambient undertakes to:
2.1 issue to Xxxxxx immediately, upon and subject to the approval of
Ambient's stockholders at the 2000 annual meeting of stockholders of a proposal
to increase the number of shares of Common Stock of Ambient, options to purchase
up to an aggregate of 75,000 shares of Ambient's Common Stock (the "Options") as
follows:
2.1.1 65,000 Options exercisable at an exercise price per share of
$0.01, to vest in 4 equal, quarterly installments, on the last day
of each quarter, with the first installment vesting 3 months from
the Effective Date.
2.1.2 10,000 Options exercisable at an exercise price per share of
$1.97, to vest in 4 equal, quarterly installments on the last day of
each quarter with the first installment vesting 3 months from the
Effective Date.
The Options shall vest so long as Xxxxxx continues to serve as a director and
Chief Executive Officer of Kliks; provided that, the Options shall vest in full
immediately if Xxxxxx is terminated as CEO by Kliks without cause.
The Options issued under Section 2.1 above shall hereinafter be referred to as
the "Severance Amount".
3. Registration Rights
Xxxxxx shall have the right to have the shares underlying the Options or the
exercised portion thereof, registered with the Securities and Exchange
Commission under any subsequently filed registration statement (SB-2 or other
appropriate form) pursuant to the Securities Act of 1933, as amended respecting
the resale of securities then held by Ambient's stockholders or other
right-holders. The Company shall include shares underlying the Options or the
exercised portion thereof in the Registration Statement filed by the Company,
subject to Xxxxxx executing any lock up or other agreement being executed or
complying with any restriction or limitation imposed on or agreed to by the
majority of selling shareholders in the Registration Statement.
4. Releases.
4.1 In consideration of and contingent upon Bernie's receipt of the
Severance Amount, Xxxxxx (and each of his respective officers, directors,
employees, shareholders, attorneys, agents, heirs, successors, executors,
personal representatives and assigns) does hereby absolutely and
unconditionally waive, release and forever discharge Ambient, its
respective affiliates, officers, directors, shareholders, employees,
agents, attorneys, insurers, successors and assigns, from any claims,
demands, obligations, liabilities, rights, causes of action and damages,
whether liquidated or unliquidated, absolute or contingent, known or
unknown, arising prior to or concurrent with the date hereof. The
foregoing release shall not be construed as a waiver by Xxxxxx of the due
and full performance by Ambient of its obligations specifically undertaken
pursuant to this Agreement.
4.2 In consideration of the releases in Section 4.1 and the resignation as
set forth in Section 1 hereof, Ambient (and each of its officers,
directors, employees, shareholders, attorneys, agents, heirs, successors,
executors, personal representatives and assigns) does hereby absolutely
and unconditionally waive, release and forever discharge Xxxxxx his
respective affiliates, officers, directors, shareholders, employees,
agents, attorneys, insurers, successors and assigns, from any claims,
demands, obligations, liabilities, rights, causes of action and damages,
whether liquidated or unliquidated, absolute or contingent, known or
unknown, arising prior to or concurrent with the date hereof. The
foregoing release shall not be construed as a waiver by Ambient of the
obligations of Xxxxxx to Ambient with respect to confidentiality and
non-competition contained in the employment agreement between Kliks and
Xxxxxx dated 1 February 2000 (the "Employment Agreement") sections 7 and
8.
5. Confidentiality. Each of Xxxxxx and Ambient hereby undertakes (i) to keep
confidential and (ii) not to disclose to any party any and all matters relating
to this Agreement, unless required by applicable law or relevant regulations.
6. Reliance and Complete Agreement. The parties acknowledge and agree that in
the execution of this Agreement, neither has relied upon any representation by
any party or attorney, except as expressly stated herein. Moreover, this
Agreement shall represent the complete and entire agreement between the parties,
to the exclusion of any and all other prior or concurrent terms, written or
oral. No supplement, modification or waiver or termination of this Agreement or
any provision hereof shall be binding unless executed in writing by the parties
to be bound thereby.
7. Headings. Section and subsection headings are not to be considered part of
this Agreement and are included solely for convenience and are not intended to
be full or accurate descriptions of the content thereof.
8. Successors and Assigns. Except as otherwise provided in this Agreement, all
the terms and provisions of this Agreement shall be upon, and shall inure to the
benefit of, the parties hereto and their respective heirs, personal
representatives, successors and assigns.
9. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
10. Entire Agreement. This Agreement may be executed in counterparts. This
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and supersedes any prior or contemporaneous
understanding or agreement, written or verbal, among the parties with respect to
the subject matter hereof.
11. Governing Law; Jurisdiction and Forum This Agreement, its validity,
construction and effect shall be governed by and construed under the laws of the
State of New York without reference to the principles of conflict of laws. The
parties hereby irrevocably consent to the jurisdiction of the courts of the
State of New York venued in New York County for all actions, disputes,
controversies, differences or questions arising out of or relating to this
Agreement.
12. Representation. Each Party acknowledges that they have had the opportunity
to consult with legal counsel respecting this Agreement. Each person executing
this Agreement on behalf of a corporation hereby represents and warrants that he
has been authorized to do so by all necessary corporate action.
13. Non-Disparagement. Neither party (and their respective heirs, personal
representatives, successors) shall disparage the other party hereto or their
businesses.
IN WITNESS WHEREOF, each of the parties has set forth its/ his signature
as of the date first written above.
Ambient Corporation
s/ Xxxxxxx Xxxxx By: s/ Xxxxxxx Braunold
-------------------------- ----------------------------
Xxxxxxx Xxxxx Title: CEO
