Exhibit 10.4
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT entered into as of October 29, 2001, by and between
AMBIENT CORPORATION, a Delaware corporation with its principal offices at 0000
Xxxxxx Xxxxxx, Xxxxxxxxx XX (hereinafter, the "Company") and XXXXX XXXXXXXX , of
0000 Xxxxxxxxxx Xx. Xxxxxxxxxxxx, XX (hereinafter, "Xxxxxxxx").
W I T N E S S E T H
WHEREAS, Xxxxxxxx formerly served as Chief Financial Officer of each of
the Company and certain of its subsidiaries as well as a director of the
Company;
WHEREAS, Xxxxxxxx'x employment and directorship were terminated by mutual
agreement between Xxxxxxxx and the Company, and the terms relating to such
agreement were reflected in that certain Termination Agreement between Xxxxxxxx
and the Company dated as of September 4, 2000 ("Termination Agreement");
WHEREAS, certain disputes arose between Xxxxxxxx and the Company with the
terms and the conditions of the Termination Agreement; and
WHEREAS, the parties desire to set forth their agreement respecting the
resolution of these disputes, all as hereinafter set forth.
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein, Xxxxxxxx and the Company hereby agree as follows:
1. Undertaking by Company
1.1 In consideration of the releases contained in Section 2 hereof,
(i) the Company shall immediately place in escrow with Xxxxxxxx'x attorney
for release to Xxxxxxxx (upon Xxxxxxxx'x execution of this Agreement), an
amount equal to$74,000 less, corrected withholdings and other deductions
customarily withheld by the Company with respect to salary paid in 2000,
as well as value added tax and other taxes payable under Israeli law with
respect to the transfer to Xxxxxxxx of title to the Company automobile
pursuant to sub-paragraph (iv) below, such deductions to be in an
aggregate amount of $9,784.41;
(iii) Notwithstanding anything to the contrary contained in the Company
1998 Stock Option Plan (hereinafter, the "1998 Plan"), Xxxxxxxx shall be
entitled to exercise through December 31, 2003 options granted to him
under the 1998 Plan prior to the date hereof comprised of options for
51,000 shares of Common Stock, par value $0.001 of the Company
(hereinafter, the "Common Stock") exercisable at an exercise price per
share of $0.81 and options for 30,000 shares of Common Stock at an
exercise price per share of $0.01; and
(iv) forthwith take all actions and execute instruments necessary or
desirable to transfer to Xxxxxxxx title to the Automobile (all loans
thereon having paid by Ambient)currently used by Xxxxxxxx.
The parties acknowledge and agree that the amounts payable under
sub-sections (i) above are remitted to Xxxxxxxx in consideration of Xxxxxxxx'x
compliance with the non-compete and confidentiality provisions of the Employment
Agreement. The Company
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anticipates that the amounts payable under sub-sections (i) above will be
reported on a Form 1099.
Additionally, the Company acknowledges to Xxxxxxxx that it anticipates
that it will be filing in the course of calendar year 2002 a registration
statement under the Securities Act of 1933, as amended, on Form S-8 (or such
other appropriate form) relating to the stock options issued or issuable with
respect to the Company's 1998 stock Option plan and the 2000 Equity Incentive
Plan, though no undertaking is hereby assumed to so file such registration
statement.
2. Release
2.1 In consideration of the Company's undertakings under Section 1 above,
Xxxxxxxx (and each of his heirs, successors, executors, attorneys, personal
representatives and assigns) does hereby absolutely and unconditionally waive,
release and forever discharge each of the Company and Xxxxx.xxx Ltd, an Israeli
affiliate of the Company, Ambient Ltd. and Insulated Connection Corporation,
each being Israeli subsidiaries of the Company and PLT Solutions, Inc., a
Delaware subsidiary of the Company (referred to collectively hereinafter as the
"Companies"), their 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 including specifically, but without
limiting the generality of the foregoing, claims relating to or arising under
the Employment Agreement or the Termination Agreement, provided, that,
notwithstanding anything to the contrary contained herein, the foregoing release
shall not be construed to apply with respect to any continuing obligation or
duty of Xxxxxxxx under Section 7 (Confidentiality) and Section 8 (Non-compete)
in the Employment Agreement. The foregoing release shall not be construed as a
waiver by Xxxxxxxx of the due and full performance by the Company of its
obligations specifically undertaken pursuant to this Agreement.
2.2 In consideration of Xxxxxxxx'x release, each of the Companies (and
each of their respective affiliates, officers, directors, shareholders,
employees, agents, attorneys, insurers, successors and assigns) does hereby
absolutely and unconditionally waive, release and forever discharge Xxxxxxxx
(and each of his heirs, successors, executors, attorneys, personal
representatives 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 including specifically, but without limiting the
generality of the foregoing, claims relating to or arising under the Employment
Agreement or the Termination Agreement. The foregoing release shall not be
construed as a waiver by Companies of the due and full performance by Xxxxxxxx
of his obligations specifically undertaken pursuant to this Agreement.
3. Continuing Obligations
Notwithstanding the Company's releases contained in Section 3.1 hereof,
Xxxxxxxx hereby acknowledges and agrees that the provisions of Section 7
(Confidentiality) and Section 8 (Non-Compete) of the Employment Agreement shall
continue in full force and effect in accordance with their terms and nothing
contained herein shall be construed or interpreted as a waiver by the Company or
any of the other Companies of any right or remedy available to any thereof in
respect of the breach or non compliance by Xxxxxxxx of his obligation
thereunder.
4. Miscellaneous
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4.1 Assignment and Succession. The rights and obligations of the Company
under this Agreement shall inure to the benefit of and be binding upon its
successors and assigns. Xxxxxxxx'x rights and obligations hereunder are personal
and may not be assigned.
4.2 Headings. The Article, Section , paragraph and subparagraph headings
are for convenience of reference only and shall not define or limit the
provisions hereof.
4.3 Invalidity. If any provision of this Agreement is or becomes invalid,
illegal or unenforceable in any respect under any law, the validity, legality or
enforceability of the remaining provisions hereof shall not in any way be
affected or impaired.
4.4 Waivers. No omission or delay by either party hereto in exercising any
right, power or privilege hereunder shall impair such right, power or privilege,
nor shall any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof, or the exercise of any other right, power
or privilege.
4.5 Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
4.6 Entire Agreement. This Agreement contains the entire understanding of
the parties and supersedes all prior agreements and understandings relating to
the subject matter hereof. No representation, promise or inducement has been
made by either party hereto that is not embodied in this Agreement and neither
party shall be bound by or liable for any alleged representation, promise or
inducement not set forth herein. This Agreement may not be amended, except by a
written instrument hereafter signed by each of the parties hereto. The parties
agree that a fully executed faxed copy shall serve as an original. Upon full
execution of this agreement, attorney for Xxxxxxxx shall prepare a Stipulation
of Settlement and forward same to Ambient's attorney for filing in Supreme
Court, New York County, under Index NO. 114815-01
Interpretation. The parties hereto acknowledge and agree that each party
and its or his counsel reviewed and negotiated the terms and provisions of
this Agreement.
4.8 Governing Law; Dispute Resolution and Jurisdiction. This Agreement and
the performance hereof shall be construed and governed in accordance with the
internal laws of the State of New York without reference to principles of
conflict of laws. Each party hereby irrevocably consents to the jurisdiction of
the appropriate New York State Court venued in the County of Manhattan for any
dispute or action relating to this Agreement.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officer and Xxxxxxxx has signed this Agreement as of the day
and year first above written.
AMBIENT CORPORATION
By: /s/ XXxxxxx Kopecowrit
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Title
/s/ Xxxxx Xxxxxxxx
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XXXXX XXXXXXXX
