EXHIBIT 10.38
STOCK PURCHASE AGREEMENT & MERGER AGREEMENT
STOCK PURCHASE AGREEMENT & MERGER AGREEMENT entered into as of January 10,
2001, by and among Xxxxxx Cern ("Cern"), Ambient Corporation a Delaware
corporation ("Ambient"), PLT Solutions Inc., a Delaware corporation ("PLT"),
Insulated Connection Corporation Ltd., an Israeli company (ICC") and Ambient
Ltd., an Israeli company.
W I T N E S S E T H
WHEREAS, Cern holds as of record (and is the beneficial owner thereof) 99
shares of the common stock of PLT , representing 9.9% of the issued and
outstanding shares of common stock of PLT, and Ambient holds as of record the
remaining 90.01% of the issued and outstanding shares of common stock of PLT;
WHEREAS, Cern and Ambient desire to merge PLT with and into Ambient so
that Ambient shall be the surviving entity of such merger;
WHEREAS, for federal income tax purposes, it is intended that the merger
shall qualify as a reorganization pursuant to Section 368(a) of the Internal
Revue Code of 1986, as amended; and
WHEREAS, in anticipation of and in connection with such merger, Cern and
Ambient desire to set forth their agreement respecting the transfer by Cern to
Ambient of all of the issued and outstanding shares of PLT held by Cern, all on
the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein, the Parties hereby agree as follows:
1. Share Transfer.
In consideration for the issuance of the Purchased Shares (as defined in
Section 2) referred to below, Cern hereby transfers, on an as is basis and
without any representation or warranty, to Ambient all of the shares of Common
Stock which Cern owns in PLT (the "PLT Transfer"). In evidence of such transfer,
Cern shall execute, sign and deliver to Ambient, on the Closing Date (as defined
in Section 5), the irrevocable stock power attached hereto as Schedule I (the
"Stock Power").
2. Issuance of Shares; Representations Relating to Purchased Shares
2.1 Issuance of Purchased Shares. In consideration of the PLT Transfer and
the releases contained in Section 4.1 hereof, subject to and in
accordance with the terms and conditions set forth herein, Ambient hereby issues
to Cern, initially in escrow in accordance with the provisions of Section 2.2
hereof, as is and without any representation or warranty, 400,000 shares of
Ambient's Common Stock, par value $0.001 (hereinafter, the "Common Stock"; such
shares of Common Stock transferred hereunder to Cern hereinafter referred to as,
the "Purchased Shares").
2.1.1 Cern shall be responsible for any and all taxes and duties owing in
respect of the Purchased Shares.
2.2 Escrow. Subject to the terms and conditions set forth herein, by his
signature below, Cern hereby agrees that the Purchased Shares shall be
represented by two (2) stock certificates, each for 200,000 Purchased Shares
(hereinafter, collectively, the "Stock Certificates") which, upon issuance,
shall be deposited with Xxxxx Xxxx, Esq., of ____________, with an address at
____________________, Massachusetts, and Xxxxx Xxxxxx, Esq., of Aboudi &
Xxxxxxxxxx, with an address at 0 Xxxxxx Xxxxxx, Xxxx Xxxx (Industrial Zone),
Israel (collectively, the "Escrow Agent") in escrow pursuant to the terms and
conditions set forth in the escrow agreement attached hereto as Schedule II
hereof (the "Escrow Agreement"), pending the satisfaction of the Release
Conditions (as defined in the Escrow Agreement). Upon the satisfaction of the
Release Conditions, the Stock Certificates will be released to Cern.
2.3 Representations and Warranties. Cern (i) represents, warrants,
covenants and agrees that the Purchased Shares are being acquired by Cern for
Cern's own account, for investment purposes only, and not with a view to any
public distribution thereof; (ii) understands (A) that if he should thereafter
decide to dispose of such Purchased Shares (which he does not contemplate at
such time) he may do so only in compliance with the Securities Act of 1933, as
amended (the "Securities Act"), (B) the Purchased Shares are not registered
under the Securities Act; and (iii) acknowledges that, as of the date hereof, he
has been given a full opportunity to ask questions of and to receive answers
from Ambient concerning the Purchased Shares and the business of Ambient and to
obtain such information as he desired in order to evaluate the acquisition of
the Purchased Shares and the Transfer, and all questions have been answered to
his full satisfaction.
3. Restrictions on Transfer of the Purchased Shares
3.1 Cern hereby agrees that he will not, directly or indirectly, sell,
hypothecate, dispose of or otherwise transfer any of the Purchased Shares until
April 1, 2001. Thereafter and continuing through April 1, 2002, Cern shall be
entitled to transfer no more than 50% of the Purchased Shares hereunder. The
restrictions contained in this Section 3.1 shall terminate on April 1, 2002.
Notwithstanding the foregoing, Cern shall be entitled to effect a private
transfer of the Purchased Shares without compliance with the provisions of this
Section 3.1 so long as the transferee of such Purchased Shares agrees in writing
to be bound by all of the terms of the restrictions contained in this
Section 3.1. Additionally, notwithstanding the foregoing, the provisions of this
Section 3.1 shall terminate upon the occurrence of a Change in Control (as
defined in the Escrow Agreement).
3.2 Cern understands, acknowledges and agrees that unless an exemption is
provided under the Securities Laws or the rules promulgated thereunder, the
Stock Certificates shall bear the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, PURSUANT TO A REGISTRATION
STATEMENT. ACCORDINGLY, SUCH SHARES MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO A REGISTRATION STATEMENT UNDER SUCH ACT, OR AN EXEMPTION FROM
REGISTRATION UNDER SUCH ACT."
4. Releases
4.1 In consideration of Ambient's undertakings hereunder, Cern (and each
of his heirs, successors, executors, attorneys, personal representatives and
assigns) does hereby absolutely and unconditionally waive, release and forever
discharge each of PLT, Ambient, ICC and Ambient Ltd. and each of their
respective subsidiaries, 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. Cern's release hereunder shall not
be construed or interpreted to release Ambient form it' s undertakings under
this Agreement.
4.2 In consideration of the PLT Transfer and Cern's release, each of
Ambient, PLT, ICC and Ambient Ltd. (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 Cern (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. The release provided to Cern
hereunder shall not be construed or interpreted to release Cern from his
undertakings under this Agreement.
5. Closing.
The Closing shall take place on December 18, 2000 or such other subsequent
date acceptable to the parties (the "Closing"). At the Closing, Cern shall
deliver a duly signed copy of this Agreement, a duly signed and undated Stock
Power and a duly signed Escrow Agreement. At the Closing,
Ambient shall deliver an originally signed copy of this Agreement and a duly
signed Escrow Agreement.
6. Merger
Immediately following the consummation of the Closing, Ambient shall take
all actions and steps necessary to cause PLT to be merged with and into Ambient
(hereinafter the "Merger"). Following the Merger, Ambient shall continue as the
surviving corporation (the "Surviving Corporation") and the separate corporate
existence of PLT shall cease. Upon and subject to the consummation of the
Closing, Ambient and PLT shall duly execute a merger agreement in the form
attached hereto as Schedule III (the "Merger Agreement")
7. Miscellaneous
7.1 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. Seller's rights and obligations hereunder are personal
and may not be assigned.
7.2 Headings. The Article, Section , paragraph and subparagraph headings
are for convenience of reference only and shall not define or limit the
provisions hereof.
7.3 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.
7.4 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.
7.5 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.
7.6 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.
7.7 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.
7.8 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 Delaware without reference to principles of
conflict of laws. Each party hereby irrevocably consents to the jurisdiction of
the appropriate Massachusetts State Court venued in the City of Boston for any
dispute or action relating to this Agreement.
IN WITNESS WHEREOF, ICC, PLT, Ambient Ltd. and Ambient have caused this
Agreement to be signed by its duly authorized officers and Cern has signed this
Agreement as of the day and year first above written.
Ambient Corporation
By:________________________________ ________________________________________
Xxxxxx Cern
Title:_____________________________
Ambient Ltd. PLT Solutions Inc.
By:________________________________ By:_____________________________________
Title:_____________________________ Title: _________________________________
Insulated Connection Corporation Ltd.
By:________________________________
Title:_____________________________
Schedule I
IRREVOCABLE STOCK POWER
For value received, the undersigned hereby sells, assigns and transfers
unto Ambient Corporation ("Transferee") all interest, title and rights in Ninety
Nine (99) shares of the common stock of PLT Solutions Inc. and does hereby
irrevocably constitute and appoint ___________________, attorney to transfer the
said stock on the books of the said Company with full power of substitution in
the premises.
Dated this ___ day of _____________
Signed by the Transferor
___________________________________
Xxxxxx Cern
___________________________________
Witness
Signed by the Transferee
Ambient Corporation
___________________________________
