EXHIBIT 10.1
AMBIENT CORPORATION
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this "Agreement") made as of
the 21st day of May, 2004 (the "Commencement Date"), by and between AMBIENT
CORPORATION, a Delaware corporation, having an office at 00 Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as "Employer") and Xxxx X.
Xxxxx, an individual residing at 000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx Xxxxxx, XX
00000 (hereinafter referred to as "Employee");
W I T N E S S E T H:
WHEREAS, the Employer and the Employee entered into an Employment
Agreement dated the 16th of November, 2001 wherein Employer employed the
Employee in the capacity of the Chief Executive Officer of Employer (the "Prior
Agreement"); and
WHEREAS, the Employer and the Employee deem it to be in their mutual
best interests to amend, modify and restate the Prior Agreement in its entirety
as provided in this Agreement.
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth, it is agreed as follows:
1. EMPLOYMENT OF THE CEO. Employer shall continue to employ
Employee as Chief Executive Officer ("CEO") of Employer upon the terms and
conditions set forth herein
2. TERM.
a. Subject to Section 9 below, the term of this Agreement
shall commence as of the Commencement Date and end on December 31, 2007 (the
"Initial Term"), except to the extent it is extended pursuant to Section 2(b)
below (the Initial Term, as so extended, is hereinafter referred to as the
"Term"). During the Term, Employee shall devote substantially all of his
business time and efforts to Employer and its subsidiaries and affiliates.
b. Each 24-month period from January 1 through December 31
of the following year commencing January 1, 2008 shall be referred to as a
"Bi-Annual Period." Subject to Section 9 below, unless the Board of Directors of
the Employer (the "Board") shall determine not to renew this Agreement and shall
so notify Employee of this determination in writing not less than ninety (90)
days prior to the end of the Initial Term, the Initial Term shall be
automatically extended for one (1) additional Bi-Annual Period. Thereafter,
unless the Board shall determine not to renew this Agreement and shall so notify
Employee of this determination not less than ninety (90) days prior to the end
of any Bi-Annual Period, the Term shall be automatically extended for one (1)
additional Bi-Annual Period.
3. DUTIES. The Employee shall perform those functions generally
performed by chief executive officers, shall attend all meetings of the
stockholders and the Board, shall perform any and all related duties and shall
have any and all powers as may be prescribed by resolution of the Board, and
shall be available to confer and consult with and advise the officers and
directors of Employer at such times that may be required by Employer. Employee
shall report directly and solely to the Board.
4. COMPENSATION.
a. (i) Employee shall be paid a minimum salary at the
following rates: from the Commencement Date through December 2004: $285,000 per
annum; and thereafter, the Employee's salary shall be increased annually on each
January 1 commencing January 1, 2005 by a minimum amount equal to the amount of
his annual salary for the immediately preceding year multiplied by the
percentage increase in the CPIW (New York) then in effect as compared to the
previous period for which the CPIW (New York) is available. Employee shall be
paid periodically in accordance with the payroll policies of the Employer during
the Term, but not less than monthly.
b. (i) Upon execution of this Agreement, Employer shall
grant to Employee under Employer's 2000 Equity Incentive Plan: (x) 500,000
options immediately exercisable with an exercise price equal to the fair market
value of Employer's common stock, par value $.001 per share (the "Common
Stock"), determined based upon the average of the bid and ask price of the
Common Stock as reported on the OTC Bulletin Board on the Commencement Date, and
(y) 500,000 options vesting one year from the Commencement Date with an exercise
price of $0.50 per share (collectively, the "Options"). The Options shall be
evidenced by a written stock option agreement, in form satisfactory to Employer,
executed by Employer and Employee, which shall provide, among other things, that
the Options, once vested, may be exercised during the Term and for a period of
six (6) months thereafter.
c. (i) In the event of a "Change of Control" whereby:
(A) A person (other than a person who is an
officer or a Director of Employer on the effective date hereof), including a
"group" as defined in Section 13(d)(3) of the Securities Exchange Act of 1934,
as amended, becomes, or obtains the right to become, the beneficial owner of
Employer securities having 50% or more of the combined voting power of then
outstanding securities of Employer that may be cast for the election of
directors of Employer;
(B) At any time, a majority of the
Board-nominated slate of candidates for the Board is not elected;
(C) Employer consummates a merger or
consolidation with an unrelated entity in which it is not the surviving entity;
(D) Substantially all Employer's assets are
sold or exclusively licensed in perpetuity to an unrelated entity; or
(E) Employer's stockholders approve the
dissolution or liquidation of Employer; then
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(ii) (A) All stock options, warrants and stock
appreciation rights ("Rights") granted by Employer to Employee under any plan or
otherwise prior to the effective date of the Change of Control shall become
vested, accelerate and become immediately exercisable, and notwithstanding any
provision to the contrary, Employee shall have two years from the effective date
of the Change of Control to exercise the Rights. In the event Employee owns or
is entitled to receive any unregistered securities of Employer underlying the
Rights, then Employer, if it shall be the surviving entity, shall use its best
efforts to include all such securities in the next registration statement, if
any, it files; and
(B) If upon said Change of Control, Employee
is not retained as CEO or in a substantially similar position with Employer or
the surviving entity, as applicable, under terms and conditions substantially
similar to those herein, in lieu of any other amounts payable to Employee under
Section 9 hereof, Employee shall be entitled to receive all amounts owing to him
on account of salary hereunder at his then current annual salary rate for a
period equal to the greater of (x) the balance of the Term or (y) two years,
payable in equal monthly installments commencing on the effective date of the
Change of Control.
d. Employer shall include Employee in its health insurance
program available to Employer's employees.
e. Employer shall maintain a life, accidental death and
dismemberment insurance policy on Employee for the benefit of a beneficiary
named by Employee in an amount not less than $750,000. Ownership of the policy
shall be assigned to Employee upon termination of Employee's employment under
this Agreement.
f. On or about January 1, 2005 and each January 1st
thereafter during the Term, Employer and Employee shall negotiate Employee's
annual bonus, which may include additional options and/or shares and/or cash
compensation. Any such bonus shall be at the discretion of the Compensation
Committee.
g. Employee shall have the right to participate in any
other employee benefit plans established by Employer.
5. BOARD OF DIRECTORS. Employer agrees that so long as this
Agreement is in effect, Employee will be nominated to the Board as part of
management's slate of Directors.
6. EXPENSES.
(a) Employee shall be reimbursed for all of his actual
out-of-pocket expenses incurred in the performance of his duties hereunder,
provided such expenses are approved by Employer, which approval shall not be
unreasonably withheld, for business related travel and entertainment expenses,
and provided that Employee shall submit to Employer reasonably detailed receipts
with respect thereto. Employer shall also reimburse Employee for his legal fees
in connection with the negotiation and preparation of this Agreement.
(b) The Employer shall provide an automobile for the
Employee's use, or the Employee shall receive an automobile allowance of $750
per month.
(c) Employee shall receive additional payments of $3,000 in
2004 and $2,000 in 2005 for personal legal, tax and/or other professional
consulting advice.
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7. VACATION. Employee shall be entitled to receive five (5) weeks
paid vacation. Employee shall be entitled to accumulate a maximum of two weeks
unused vacation time from year to year without the written consent of Employer.
Employee shall be entitled to receive base compensation in lieu of vacation for
a maximum three weeks annually.
8. CONFIDENTIALITY AND NON-COMPETITION AGREEMENT. Employee shall
execute the Employee Confidentiality and Non-Competition Agreement annexed
hereto as EXBIBIT A, which shall be incorporated by reference into this
Agreement and made a part hereof. All references herein to this Agreement shall
be construed to include EXHIBIT A.
9. TERMINATION.
a. Termination by Employer
(i) Employer may terminate this Agreement upon
written notice for Cause. For purposes hereof, "Cause" shall mean: (a) A failure
by Employee substantially to perform his duties hereunder, or (b) a failure by
Employee to substantially comply with the lawful and proper instructions of the
Board, or (c) Employee's illegal acts or conduct which causes material harm or
loss to Employer; provided, however, that with respect to clauses (a) and (b),
the foregoing shall not constitute "Cause" if Employee, after being notified in
writing by Employer of the particular acts or circumstances of such material
breach, cures such failure within 30 days after receipt of such notice (if such
failure is reasonably susceptible to cure).
(ii) Employer may terminate Employee's employment
under this Agreement if, as a result of any physical or mental disability,
Employee shall fail or be unable to perform his duties under this Agreement for
any consecutive period of 90 days or a total of 180 days during any twelve-month
period. If Employee's employment is terminated under this Section 9(a)(ii): (A)
for the first ninety (90) days after termination, Employee shall be paid $3,000
per week and thereafter Employee shall be paid $10,000 per month for a period
equal to the greater of (x) the balance of the Term or (y) two years; (B)
Employer's obligation to pay life insurance premiums on the policy referred to
in Section 4(e) shall continue in effect until five years after the date of
termination; and (C) Employee shall continue to be entitled, insofar as is
permitted under applicable insurance policies or plans or law, to such general
medical and employee benefit plans (including profit sharing or pension plans)
as Employee had been entitled to on the date of termination. Any amounts payable
by Employer to Employee under this paragraph shall be reduced by the amount of
any disability payments payable by or pursuant to plans provided by Employer and
actually paid to Employee.
(iii) Upon the death of Employee, this Agreement shall
terminate and Employee's estate shall be entitled to receive any amount accrued
and unpaid under Section 4(a) and the pro-rata amount payable under Section 4(f)
for the period prior to Employee's death and any other amounts to which Employee
was entitled of the time of his death. Upon Employee's death, all Rights granted
by Employer to Employee under any plan or otherwise prior to the date of
Employee's death shall become vested, accelerate and become immediately
exercisable, and notwithstanding any provision to the contrary, shall remain
exercisable by Employee's estate for a period of six (6) months following the
date of Employee's death. Notwithstanding the foregoing sentence, in the event
Employee owned or was entitled to receive any unregistered securities of
Employer upon exercise of Rights, then Employer shall use its reasonable best
efforts to effect the registration of all such securities as soon as practical,
and the
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estate of the Employee shall then have six (6) months after the effective date
of the registration statement to exercise said options for the previously
unregistered securities.
(iv) Employer shall have the right to terminate
Employee at any time other than for Cause or Employee's death or disability,
subject to Employee's right to receive payment as set forth in Section 9(c).
b. Termination by Employee
(i) Employee shall have the right to terminate his
employment under this Agreement upon 30 days' written notice to Employer given
within 90 days following the occurrence of any of the following events (A)
through (G):
(A) Employee is not elected or retained as
CEO of Employer.
(B) Employer acts to materially reduce
Employee's duties and responsibilities hereunder. Employee's duties and
responsibilities shall not be deemed materially reduced for purposes hereof
solely by virtue of the fact that Employer is (or substantially all of its
assets are) sold to, or is combined with, another entity, provided that Employee
shall continue to have the same duties and responsibilities with respect to
Employer's business and Employee shall report directly to the chief executive
officer and/or board of directors of the entity (or individual) that acquires
Employer or its assets.
(C) Employer acts to change the geographic
location of the performance of Employee's duties from the Boston or New York
City Metropolitan area. For purposes of this Agreement, the Boston Metropolitan
area shall be deemed to be the area within 30 miles of the Boston City limits
and the New York Metropolitan Area shall be deemed to be the area within 30
miles of Manhattan.
(D) A Material Reduction (as hereinafter
defined) in Employee's rate of base compensation, or Employee's other benefits.
"Material Reduction" shall mean a ten percent (10%) differential;
(E) A failure by Employer to obtain the
assumption of this Agreement by any successor;
(F) A material breach of this Agreement by
Employer, which is not cured within thirty (30) days of written notice of such
breach by Employer;
(G) A Change of Control.
(ii) Anything herein to the contrary notwithstanding,
Employee may terminate this Agreement for any other reason upon thirty (30) days
written notice to Employer.
c. If Employer shall terminate Employee's employment other
than due to his death or disability or for Cause, or if Employee shall terminate
this Agreement under Section 9(b)(i), Employee shall be entitled to receive: (i)
all amounts owing to him on account of salary hereunder at his then current
salary rate for a period equal to the greater of (x) the balance of the Term or
(y) two years, payable in
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equal monthly installments commencing on the effective date of termination; and
(ii) continued payment by Employer for health/medical insurance for a period of
five (5) years from the date of termination.
d. Return of Property. Upon the termination of Employee's
employment for any reason whatsoever, Employee shall at once deliver or cause to
be delivered to Employer all books, documents, effects, money, computer
equipment, computer storage media, securities or other property belonging to
Employer or for which Employer is liable to others, which are in the possession,
charge, control or custody of Employee.
e. Full and Final Release. In order to be eligible for the
payments and severance benefits after termination for any reason as set forth in
this Agreement, Employee must (i) execute and deliver to Employer a general
release, in a form reasonably satisfactory to Employer, and (ii) be and remain
in full compliance with his obligations under this Agreement.
10. REMEDIES. Employer recognizes that because of Employee's special
talents and stature, in the event of termination by Employer hereunder (except
under Section 9(a)(i) or (iii), or in the event of termination by Employee under
Section 9(b)(i) before the end of the Term), Employer acknowledges and agrees
that the provisions of this Agreement regarding further payments of base salary,
bonuses and the exercisability of Rights constitute fair and reasonable
provisions for the consequences of such termination, do not constitute a
penalty, and such payments and benefits shall not be limited or reduced by
amounts Employee might earn or be able to earn from any other employment or
ventures during the remainder of the agreed term of this Agreement.
11. ARBITRATION. Any controversies between Employer and Employee
involving the construction or application of any of the terms, provisions or
conditions of this Agreement, save and except for any breaches arising out of
the Employer Confidentiality and Non-Competition Agreement annexed hereto as
EXHIBIT A, shall on the written request of either party served on the other be
submitted to arbitration. Such arbitration shall take place in Nassau County,
New York and shall comply with and be governed by the rules of the American
Arbitration Association. An arbitration demand must be made within one (1) year
of the date on which the party demanding arbitration first had notice of the
existence of the claim to be arbitrated, or the right to arbitration along with
such claim shall be considered to have been waived. An arbitrator shall be
selected according to the procedures of the American Arbitration Association.
The cost of arbitration shall be born by the losing party or in such proportions
as the arbitrator shall decide. The arbitrator shall have no authority to add
to, subtract from or otherwise modify the provisions of this Agreement, or to
award punitive damages to either party.
12. ATTORNEYS' FEES AND COSTS.If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the employee
shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
13. ENTIRE AGREEMENT; SURVIVAL.
a. This Agreement contains the entire agreement between the
parties with respect to the transactions contemplated herein and supersedes,
effective as of the date hereof any prior agreement or understanding between
Employer and Employee with respect to Employee's employment by Employer
including the Prior Agreement. The unenforceability of any provision of this
Agreement shall not effect the enforceability of any other provision. This
Agreement may not be amended except by an agreement in writing signed by the
Employee and the Employer, or any waiver, change, discharge or modification as
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sought. Waiver of or failure to exercise any rights provided by this Agreement
and in any respect shall not be deemed a waiver of any further or future rights.
b. The provisions of Sections 11, 12, 13, 16, 17 and 18 and
EXHIBIT A shall survive the termination of this Agreement.
14. ASSIGNMENT. This Agreement may not be assigned to other parties
except for an assignment by operation of law.
15. GOVERNING LAW. This Agreement and all the amendments hereof, and
waivers and consents with respect thereto shall be governed by the internal laws
of the Commonwealth of Massachusetts, without regard to the conflicts of laws
principles thereof.
16. NOTICES. All notices, responses, demands or other communications
under this Agreement shall be in writing and shall be deemed to have been given
when
a. delivered by hand;
b. sent be telex or telefax, (with receipt confirmed),
provided that a copy is mailed by registered or certified mail, return receipt
requested; or
c. received by the addressee as sent be express delivery
service (receipt requested) in each case to the appropriate addresses, telex
numbers and telefax numbers as the party may designate to itself by notice to
the other parties:
(i) if to Employer:
Ambient Corporation
00 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chairman of the Board
(ii) if to Employee:
Xxxx X. Xxxxx
000 X. Xxxxxxx Xxx.
Xxxxxxxxx Xxxxxx, Xxx Xxxx 00000
17. SEVERABILITY OF AGREEMENT. Should any part of this Agreement for
any reason be declared invalid by a court of competent jurisdiction, such
decision shall not affect the validity of any remaining portion, which remaining
provisions shall remain in full force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties that they would have executed the remaining
portions of this Agreement without including any such part, parts or portions
which may, for any reason, be hereafter declared invalid.
18. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of, and be binding upon, the respective successors and permitted assigns
of the parties hereto.
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IN WITNESS WHEREOF, the undersigned have executed this agreement as of
the day and year first above written.
AMBIENT CORPORATION
By: _____________________
EMPLOYEE
------------------------
Xxxx X. Xxxxx
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EXHIBIT A
AMBIENT CORPORATION
EMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT
THIS EMPLOYEE CONFIDENTIALITY AND NON-COMPETITION AGREEMENT (this
"Agreement") entered into as of the 21st day of May, 2004, by and between
AMBIENT CORPORATION, a Delaware corporation with its principal place of business
at 00 Xxxxxx Xxxxxx, Xxxxxx, XX 00000 (hereinafter called the "COMPANY") and
Xxxx X. Xxxxx (hereinafter called "EMPLOYEE").
WITNESSETH:
WHEREAS, in pursuing its power line telecommunications business, COMPANY
has developed and acquired valuable proprietary information, technology,
intellectual property, inventions, trade secrets, production and marketing
plans, equipment, business methods and strategic plans; and
WHEREAS, the secrecy of COMPANY's proprietary information, trade secrets
and inventions, and the protection of its patents, are essential, because
COMPANY is engaged in a highly competitive industry which requires a substantial
continuing commitment to research, development and innovation to remain
competitive; and
WHEREAS, it has been and will continue to be necessary for COMPANY to
impart to EMPLOYEE knowledge of its proprietary information, inventions and
trade secrets and to involve EMPLOYEE in various aspects of research,
development, business methods and business plans, during which involvement, of
necessity, EMPLOYEE will gain additional knowledge of COMPANY's inventions,
trade secrets and other confidential information, all for the purpose of
equipping and enabling EMPLOYEE to discharge his duties effectively to the
mutual advantage of himself and Company; and
WHEREAS, EMPLOYEE recognizes that COMPANY must, for its protection,
place reasonable limitations on Employee's ability to use and disclose COMPANY's
proprietary information, inventions and trade secrets and, further, that
COMPANY, in order that such limitations shall be effective, must have the right
to enforce such limitations by way of injunctive relief, both temporary and
permanent;
NOW THEREFORE, in consideration for the employment of EMPLOYEE by the
Company and in consideration of the mutual covenants and agreements hereinafter
contained, the parties hereto agree as follows:
Section 1. INVENTIONS.
1.1 Any and all inventions, ideas, improvements, processes, formula
and discoveries, whether or not patentable, conceived, devised, made, acquired
or reduced to practice by EMPLOYEE, either alone or in conjunction with others,
during the period of EMPLOYEE's employment by COMPANY (including, without
limitation, prior employment by COMPANY and/or its subsidiaries) which relate or
reasonably appertain to the business engaged in by COMPANY or its subsidiaries,
or to any products now manufactured, advertised or sold by COMPANY or its
subsidiaries, or to any products in the process of
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development by COMPANY or its subsidiaries, or to any similar or competitive
products, or to the method or process of making or using any such products, or
which result from duties or tasks assigned to EMPLOYEE by COMPANY, whether so
devised, made, acquired or reduced to practice during working hours or
otherwise, with the materials and tools of COMPANY or its subsidiaries or
otherwise, and (except as provided in Section 1.2) whether done before or after
the execution of this Agreement, shall be the sole and exclusive property of
COMPANY; and EMPLOYEE shall, without further compensation or consideration, but
at the expense of COMPANY:
(a) fully and promptly disclose to COMPANY all information
with respect to such inventions, ideas, improvements, processes, formulae and
discoveries;
(b) whenever requested by COMPANY, promptly execute and
cooperate in the filing and prosecution of any and all applications, assignments
and other instruments which COMPANY shall deem necessary in order to apply for
and obtain Letters Patent of the United States and of foreign countries for such
inventions, ideas, improvements, processes, formulae and discoveries, and in
order to assign and convey to COMPANY, or to Company's nominee, the sole and
exclusive right, title and interest in and to such inventions, ideas,
improvements, processes, formula and discoveries or any applications or patents
thereon; and
(c) whenever requested by COMPANY, promptly deliver to
COMPANY evidence with respect to such inventions, ideas, improvements,
processes, formulae and discoveries for the purpose of any legal proceedings and
testify with respect thereto in any legal proceedings.
1.2 EMPLOYEE has, on ATTACHMENT A hereof, listed and provided a
complete description of all inventions, ideas, improvements, processes, formulae
and discoveries, both patented and unpatented, which EMPLOYEE has conceived,
devised, made, acquired or reduced to practice prior to entering the employ of
COMPANY and in which EMPLOYEE claims a proprietary interest. EMPLOYEE represents
that said list is complete and agrees that only those items listed and fully
described and identified on ATTACHMENT A are to be excluded from this Agreement.
Section 2. CONFIDENTIAL INFORMATION.
2.1 EMPLOYEE shall exercise utmost diligence to protect and guard
the secret and confidential proprietary information, technology, intellectual
property, inventions, trade secrets, production and marketing plans, equipment,
business methods and strategic plans of COMPANY and its subsidiaries, relating
to the business engaged in by COMPANY and its subsidiaries (hereinafter
collectively referred to as "Confidential Information"). Confidential
Information shall not include any information that: (a) was in EMPLOYEE's
possession prior to Employee's employment with COMPANY; (b) is or becomes a
matter of public knowledge through no fault of EMPLOYEE or COMPANY; (c) is
rightfully received by EMPLOYEE from a third party that is not under any duty of
confidentiality with respect to such information; or (d) is generally made
available to third parties by COMPANY without any restrictions on disclosure.
2.2 Neither during EMPLOYEE's employment by COMPANY nor thereafter
shall EMPLOYEE, directly or indirectly, use for himself or another, or disclose
to another, any Confidential Information which has in any manner come into the
EMPLOYEE's knowledge, except as such disclosure or use may be reasonably
required in connection with his employment by COMPANY or may be consented to in
advance in writing by COMPANY.
2.3 Each of the foregoing obligations of EMPLOYEE regarding
Confidential Information shall
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also apply with respect to Confidential Information of customers, suppliers,
contractors, joint venturers, affiliates and others with whom COMPANY or any of
its subsidiaries has a business relationship.
Section 3. NON-COMPETITION.
3.1 During the Non-Compete Period (as defined below), EMPLOYEE shall
not, without the prior unanimous written approval of the President of COMPANY,
perform any of the following acts:
(A) accept employment with any business wherever
located which engages in any business in the Territory (as hereinafter defined)
which competes with COMPANY or any of its subsidiaries if the employment in
question either would include the performance of duties similar to those
performed by EMPLOYEE for COMPANY or would place him in a working relationship
with persons performing such duties; or
(B) directly or indirectly, for himself or an behalf
of others, as an individual on his own account or as an employee, agent or
representative for any person, partnership, firm or corporation, engage in, aid
in the operation of, contribute his knowledge to, or own, manage, operate or
participate in the ownership, management or control of any business wherever
located which competes with COMPANY or any of its subsidiaries in the Territory.
Nothing contained in this Section 3 shall be construed to prohibit EMPLOYEE from
owning, either of record or beneficially, not more than five percent (5%) of the
shares or other equity interest of any publicly traded entity, even if that
entity is in the business engaged in by COMPANY or any of its subsidiaries.
3.2 EMPLOYEE and COMPANY agree that, in view of the character of
EMPLOYEE's work and of the business engaged in by COMPANY and its subsidiaries,
in view of the nature of the market in which COMPANY and its subsidiaries
compete, it is reasonable and necessary for the protection of COMPANY and its
subsidiaries that the "Territory" referred to in Section 3.1 include the United
States of America.
3.3 The provisions of this Section 3 shall not in any way or to any
extent limit the obligations of EMPLOYEE under any other Section of this
Agreement.
3.4 For purposes of this Agreement, (i)the Non-Compete Period shall
be two (2) years after the effective date of the termination of EMPLOYEE's
employment by COMPANY or any of its subsidiaries (the "Termination Date") or, if
ordered by a court of competent jurisdiction, one of the periods of time listed
in clause (ii).
(ii) If ordered by a court of competent jurisdiction, the
Non-Compete Period shall be one of the following periods of time:
(A) one (1) year and six (6) months from the
Termination Date;
(B) one (1) year from the Termination Date; or
(C) six (6) months from the Termination Date.
Section 4. EMPLOYEE, CUSTOMER OR SUPPLIER INTERFERENCE. During the term
of his employment with the Company and for two (2) years after the Termination
Date, EMPLOYEE shall not, directly or indirectly, for himself or on behalf of
others, (a) induce or attempt to induce any other employee to quit COMPANY's
employ or the employ of any COMPANY subsidiary, interfere with or disrupt
COMPANY's or the subsidiary's relationship with any other employee or solicit,
entice, take or employ any other
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employee of COMPANY or the subsidiary; and/or (b) call upon, solicit, divert or
attempt to solicit or divert from COMPANY or its subsidiaries any of their
customers or suppliers, or potential customers or suppliers whose business was
solicited by COMPANY or one of its subsidiaries, or who were identified in
writing by COMPANY or one of its subsidiaries as a potential customer or
supplier, during EMPLOYEE's employment with COMPANY; provided, however, that
nothing in this Section 4.1 shall be deemed to prohibit EMPLOYEE from calling
upon or soliciting a customer or supplier if such action relates solely to a
business or matter that is not competitive with COMPANY and its subsidiaries.
Section 5. MISCELLANEOUS.
5.1 Each covenant set forth in this Agreement is separate and
distinct from every other covenant and, if any such covenant, or any part of any
such covenant, is declared to be invalid by a court of competent jurisdiction,
the remaining obligations of this Agreement shall be deemed to be independent
and divisible and shall remain in full force and effect as if the invalid
covenant or covenants never were part of this Agreement. In the event that a
court of competent jurisdiction shall determine that any provision of this
Agreement or the application thereof is unenforceable in whole or in part, the
parties hereto agree that said court in making such determination shall have the
power to reduce the duration and scope of such provision or otherwise modify
such provision to the extent necessary to make it enforceable, and that the
Agreement in its modified form shall be valid and enforceable to the full extent
permitted by law.
5.2 Failure on COMPANY's part to exercise any rights or privileges
granted to it by this Agreement or to insist upon the full performance of all
obligations or duties assumed by EMPLOYEE shall not be construed as waiving any
such rights, privileges, obligations or duties, or as creating any custom
contrary thereto.
5.3 If EMPLOYEE shall violate any of the terms of this Agreement,
COMPANY, in addition to any other remedies it may have, shall be entitled to an
injunction (including a temporary restraining order and/or a temporary and/or a
preliminary injunction), without the necessity of proving actual damages and
without the posting of a bond, to be issued by any court of equity of competent
jurisdiction, enjoining and restraining EMPLOYEE from such wrongful acts, and
EMPLOYEE shall reimburse COMPANY for all reasonable attorneys' fees and expenses
incurred by it to enforce this Agreement.
5.5 The provisions hereof shall survive and continue in full force
and effect after termination of EMPLOYEE's employment with COMPANY, whether such
termination is with or without cause, or is voluntary or involuntary.
5.6 Whenever written notice is required to be given by this
Agreement, adequate notice shall be deemed to have been given if the written
notice is sent by first class mail addressed as follows:
(a) To EMPLOYEE at either his last known residence or his
place of business as noted on the records of COMPANY;
(b) To COMPANY as shown below:
AMBIENT CORPORATION
00 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Chairman of the Board
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5.7 The validity of this Agreement shall be determined under and
shall be governed in all respects by, the laws of the State of Massachusetts,
even though all or a substantial part of EMPLOYEE's duties may be performed
elsewhere. The parties agree to submit to the jurisdiction of any appropriate
state court of record or federal district court in the district in which the
Company's offices are located for purposes of resolving any dispute arising
under this Agreement.
5.8 This Agreement shall be binding upon and inure to the benefit of
the parties, their successors and assigns.
5.9 This Agreement contains the entire agreement between the parties
and EMPLOYEE agrees that no other promises or inducements have been made unless
contained in writing, attached hereto or incorporated herein by reference.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement in
duplicate as of the date first above written.
EMPLOYEE AMBIENT CORPORATION
____________________________ By __________________________
Xxxx X. Xxxxx Name:
Title:
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EXHIBIT A
TO
EMPLOYEE CONFIDENTIALITY AND NONCOMPETITION AGREEMENT
Ambient Corporation
__________________________
__________________________
Att: President
1. The following is a complete list of all inventions or
improvements relevant to the subject matter of employment by COMPANY which have
been made or conceived or first reduced to practice by me alone or jointly with
others prior to the date hereof.
__ No Inventions __ See Below (__ Additional sheets attached)
________________________________________________________________________________
________________________________________________________________________________
2. I propose to bring to my employment by COMPANY the following
material and documents of a former employer which are not personally available
to the public, which materials and documents may be used in my employment.
__ No Inventions __ See Below (__ Additional sheets attached)
________________________________________________________________________________
________________________________________________________________________________
The signature below confirms that my continued possession and use of
these materials is authorized.
Very truly yours,
__________________________
EMPLOYEE
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