Exhibit 10.6
FIRST AMENDMENT
TO
AGREEMENT
FIRST AMENDMENT TO AGREEMENT (this "Amendment"), dated as of November 12,
2001, by and between Ambient Corporation, a Delaware corporation ("Ambient" or
the "Company"), and Xxxx X. Xxxxxxxx ("Xxxxxxxx").
W I T N E S S E T H
WHEREAS, the parties hereto are parties to an Agreement, dated September
5, 2001 (the "Agreement"); and
WHEREAS, the parties hereto desire to amend the Agreement as provided in
this Amendment;
NOW, THEREFORE, in consideration of the terms and conditions hereafter set
forth, the adequacy and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Capitalized terms defined in the Agreement and not otherwise defined in
this Amendment shall have the meanings provided in the Agreement.
2. Section 3(a) of the Agreement is hereby deleted in its entirety and
replaced by the following:
"(a) In consideration for Isaascson's continuing agreements not to
compete with the business of Ambient as set forth in the Employment Agreement
(which agreements are hereby reaffirmed in this Amendment), Xxxxxxxx shall be
entitled to receive a "non-competition payment" from the Company in an amount
equal to Two Hundred and Six Thousand Two Hundred Fifty Dollars ($206,250.00)
(the "Non-Competition Payment"). Xxxxxxxx acknowledges that Ambient previously
has made advances to Xxxxxxxx in the aggregate amount of One Hundred
Twenty-Three Thousand Seven Hundred Fifty Dollars ($123,750.00), and in
addition, "Medicare" tax in the amount of Seven Thousand Four Hundred Fifty
Three Dollars ($7,453.00) is due from Xxxxxxxx to the Company, each of which is
to be credited against the Non-Competition Payment and, accordingly, Ambient
agrees to remit to counsel for Xxxxxxxx, to be held in escrow pending delivery
of all documents and completion of all matters referred to in this Amendment, by
wire transfer of immediately available funds, and simultaneously with the
execution and delivery of this Amendment, an amount equal to Seventy-Five
Thousand Forty-Seven Dollars ($75,047.00). Ambient will be responsible for
remitting all "Medicare" withholding taxes applicable to amounts that will be
reported on Xxxxxxxx'x W-2 for the 2001 year. Xxxxxxxx further agrees to execute
and to return to Ambient the Form W-4 in the form of Exhibit A hereto
simultaneously with the wire transfer. Xxxxxxxx certifies to Ambient that
Xxxxxxxx reasonably expects to be entitled to and will itemize deductions for
the tax year 2001. Xxxxxxxx further agrees that Ambient will report (i) an
additional amount of Five Hundred Fourteen Thousand Four Dollars ($514,004.00)
(above the amounts previously reported through September 1, 2001) on Xxxxxxxx'x
W-2 form for 2001 and (ii) an additional amount of Seven
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Hundred Seventy Seven Thousand Twenty Four Dollars ($777,024.00) on Form 1099
for the fiscal year of 2001."
3. Section 3(b) of the Agreement is hereby amended by the addition of the
following at the end of such Section 3(b):
"(b)...Simultaneously with the execution and delivery of this
Amendment, the parties shall execute and deliver the Stock Option Agreement in
the form of Exhibit B to this Amendment."
4. Section 8 of the Agreement is hereby deleted in its entirety and
replaced by the following:
"8. Non-Disparagement. Xxxxxxxx (on behalf of his heirs and personal
representatives), agrees not to disparage Ambient or any of its employees,
consultants, stockholders, directors, affiliates, subsidiaries or
representatives. In addition, Xxxxxxxx shall not make any statements to third
parties regarding his views with respect to the power lines telecommunication
industry and the prospective success of such industry. Ambient (on behalf of its
employees, consultants, directors, affiliates and subsidiaries), agrees not to
disparage Xxxxxxxx."
5. On or before November 16, 2001, Ambient will deliver to Xxxxxxxx that
certain Mercedes E320 automobile which is registered in the name of Xxxxxxxx, to
such location in the
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Boston, Massachusetts or New York City metropolitan areas as may be directed by
Xxxxxxxx in writing to Ambient. Xxxxxxxx agrees that if no such direction letter
is provided to Ambient, such automobile will be delivered to counsel for
Xxxxxxxx. Xxxxxxxx acknowledges that all obligations relating to such
automobile, including insurance, lease or loan payments, are the responsibility
and the obligation of Xxxxxxxx; provided that Ambient will pay for one-half of
the November 2001 lease payment.
6. Releases. Section 7 of the Agreement is hereby deleted in its entirety
and replaced with the following:
A. In consideration of Ambient's agreements, Xxxxxxxx (and each of
his respective 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.
B. In consideration of the releases in subparagraph "A" above and
Xxxxxxxx'x agreement to enter into the non-competition agreement set forth in
the Employment Agreement, Ambient (and each of its officers, directors,
employees, attorneys, agents, successors, executors and assigns) does hereby
absolutely and unconditionally waive, release and forever discharge Xxxxxxxx,
his respective affiliates, agents, attorneys, insurers, successors and assigns,
from any claims, demands, obligations, liabilities, rights, causes of action and
damages, whether liquidated
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or unliquidated, absolute or contingent, known or unknown, arising prior to or
concurrent with the date hereof.
C. The foregoing releases shall not be construed as a waiver by
Ambient or Xxxxxxxx of the obligations of Xxxxxxxx to Ambient, or Ambient to
Xxxxxxxx, respectively, with respect to confidentiality and non-competition
contained in the Employment Agreement and any undertakings of Xxxxxxxx or
Ambient pursuant to this Agreement.
7. Personal Property: Ambient and Xxxxxxxx agree that with respect to
Sections 3(e) and (f) of the Agreement, the parties have distributed such
equipment and personalty as each is entitled to retain under the terms of such
sections, and neither party shall make any claim for the return of any such
personalty from the other.
8. In all other respects, the Agreement remains in full force and effect,
and the parties reaffirm all of their respective agreements therein, including
without limitation, the provisions relating to "Continuing Obligations" in
Section 6 thereof.
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IN WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date set forth above.
AMBIENT CORPORATION
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: CEO
/s/ Xxxx Xxxxxxxx
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XXXX X. XXXXXXXX
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