EXHIBIT 10.31
AMBIENT CORPORATION
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made as of this September 18, 2000, by and between
AMBIENT CORPORATION, a Delaware corporation, having an office at 0000 Xxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter referred to as "Employer")
and Xxxx X. Xxxxxxxx, an individual residing at 00 Xxxxxx Xxxx, Xxxxxxxxx, XX
00000 (hereinafter referred to as "Employee");
W I T N E S S E T H:
WHEREAS, Employer employs, and desires to continue to employ, Employee as
Chief Executive Officer ("CEO") of Employer; and
WHEREAS, Employee is willing to continue to be employed as the CEO of
Employer in the manner provided for herein, and to perform the duties of the CEO
of Employer upon the terms and conditions herein set forth;
NOW, THEREFORE, in consideration of the promises and mutual covenants
herein set forth it is agreed as follows:
1. Employment of the CEO. Employer hereby employs Employee as CEO of
Employer.
2. Term.
a. Subject to Section 10 below and further subject to Section 2(b)
below, the term of this Agreement shall commence on September 1, 2000 and end on
December 31, 2005. Each 12 month period from January 1 through December 31
during the term hereof shall be referred to as an "Annual Period." During the
term hereof, Employee shall devote substantially all of his business time and
efforts to Employer and its subsidiaries and affiliates.
b. Subject to Section 10 below, unless the Board of Directors of the
Company (the "Board") of Employer shall determine to the contrary and shall so
notify Employee in writing on or before the end of any Annual Period, then at
the end of each Annual Period, the term of this Agreement shall be automatically
extended for one (1) additional Annual Period to be added at the end of the then
current term of this Agreement.
3. Duties. The Employee shall perform those functions generally performed
by persons of such title and position, 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 of $275,000 for each Annual
Period, commencing September 1, 2000; provided, however, that Employee's salary
shall be increased annually at the beginning of each Annual Period commencing
September 1, 2000 by an amount equal to the amount of his annual salary for the
immediately preceding Annual Period times 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 policies of the Employer during the term of this Agreement, but not less
than monthly.
(ii) Employee is eligible for semi-annual bonuses, if any,
which will be determined and paid in accordance with policies set from time to
time by the Board.
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b. (i) Upon execution of this agreement Employer shall grant to
Employee the option ("Option") to purchase one million three hundred fifty
thousand (1,350,000) shares of common stock of Employer (the "Shares" or
"Share") at a price of $1.00 per Share. The Option shall be evidenced by a
written stock option agreement, in form satisfactory to the Employer, executed
by the Employer the Employee. The Shares underlying the Option shall be fully
paid and non-assessable. If during the term of this agreement Employer issues
shares of its common stock ("Common Stock"), Employee shall be entitled to
receive additional options to purchase shares of Common Stock at a price to be
determined by the Board of Directors and in an amount necessary to maintain
Employee's fully diluted percentage ownership of the issued and outstanding
shares of Common Stock had the Option granted pursuant to this Section 4(b)(i)
been exercised upon its grant.
(ii) The Option may be exercised during the term in which this
agreement remains in effect by written notice delivered to the Employer at its
principal executive office stating the number of Shares with respect to which
the Option is being exercised, together with:
(A) a check or money order made payable to the Employer in the
amount of the exercise price and any applicable federal, state and local
withholding tax; or
(B) the tender to the Employer of Shares owned by Employee
having a fair market value not less than the exercise price, plus the amount of
applicable federal, state and local withholding tax; or
(C) the surrender of Shares then issuable upon the exercise of
the Option, provided the fair market value of such Shares is equal on the date
to the exercise price, or such portion thereof as Optionee elects to pay by
surrender of such stock, plus the amount of applicable federal, state and local
withholding taxes;
(iii) If, at any time within the period which this agreement
remains in effect, the Employer should file a registration statement with the
Securities and Exchange Commission (the "Commission") under the Securities and
Exchange Act of 1933, as amended (other than pursuant to Forms S-4 or S-8), it
will give written notice at least twenty (20) calendar days prior to the filing
of each such registration statement to Employee of its intention to do so. If
Employee notifies the Employer within fifteen (15) calendar days after receipt
of any such notice of its or their desire to include any of the Shares
underlying the Option(s) granted pursuant to Section 4 (b) in such proposed
registration statement, the Employer shall afford Employee the opportunity to
have any such Shares registered under such registration statement.
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, becomes, or obtains the
right to become, the beneficial owner of Employer securities having 30% or more
of the combined voting power of then outstanding securities of the Employer that
may be cast for the election of directors of the 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 in which it is not the surviving
entity;
(D) Substantially all Employer's assets are sold; or
(E) Employer's stockholders approve the dissolution or liquidation
of Employer; then
(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; at an exercise price of $0.10
(cent) per share if applicable, adjusted for any stock splits and capital
reorganizations having a similar effect, subsequent to the effective date
hereof. In the event Employee owns or is entitled to receive any unregistered
securities of Employer, then Employer shall use its
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best efforts to effect the registration of all such securities as soon as
practicable, but no later than 120 days after the effective date of the
registration statement; provided, however, that such period may be extended or
delayed by Employer for one period of up to 60 days if, upon the advice of
counsel at the time such registration is required to be filed, or at the time
Employer is required to exercise its best efforts to cause such registration
statement to become effective, such delay is advisable and in the best interests
of Employer because of the existence of non-public material information, or to
allow Employer to complete any pending audit of its financial statements;
(B) Any outstanding principle and interest on loans to
Employee pursuant to Section 4 (h)(ii), below, shall be recalculated and
reconstituted as if the exercise price of the Rights financed thereby were, ab
initio, $0.10 (cent) per share.
(C) If upon said Change of Control, Employee is not retained
as CEO or substantially similar position of Employer or the surviving entity, as
applicable, under terms and conditions substantially similar to those herein,
then in addition, Employee shall be eligible to receive a one-time bonus, equal
on an after-tax basis to two times his then current annual base salary. To
effectuate this provision, the bonus shall be "grossed-up" to include the amount
necessary to reimburse Employee for his federal, state and local income tax
liability on the bonus and on the "gross-up" at the respective effective
marginal tax rates. In no event shall this bonus exceed 2.7 times Employee's
then current base salary. Said bonus shall be paid within thirty (30) days of
the Change of Control.
d. Employer shall include Employee in its health insurance program
available to Employer's executive officers.
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. (i) A bonus plan shall be instituted for Employee which shall
take account of the efforts of Employee in generating value to Employer's
shareholders. Under said plan, Employee shall be entitled to an annual bonus
payable for each 12 month period commencing September 1, 2000 in cash and/or
unregistered securities of Employer, at the option of the Compensation Committee
of the Board, equal to 2% of the increase for said 12 month period in the total
market capitalization of Employer calculated upon the excess of the total of the
average daily closing bid (if applicable) price of each class of Employer's
shares for the last 90 days of the 12 month period, multiplied by the number of
shares of each class outstanding as reported by Employer's Certified Public
Accountants, (the "90 Day Average") over the Base, which shall be the greater of
$105,000,000 or the highest previous 90 Day Average against which a bonus was
paid under this bonus plan, if any. Should the Compensation Committee elect
hereunder to pay Employee in unregistered securities, said securities shall be
valued at 60% of the most recent 90 Day Average. Should Employer's shares no
longer be publicly traded, the current 90 Day Average shall be determined by a 3
person panel, 1 person appointed each by Employer and Employee and 1 appointed
by the former 2. Employee shall be entitled to receive compensation under this
plan for five fiscal years following expiration or termination of this
employment contract, except that if Employee is terminated for cause as defined
in Section 10 (a)(i) hereof or resigns other than for reasons of disability,
then said compensation shall continue for three fiscal years.
(ii) Employee shall also be entitled to participate pari passu in
any other program established by Employer pursuant to which any executive
officers receive a share of the profits of Employer.
g. Employee shall have the right to participate in any other
employee benefit plans established by Employer.
h. Unless a pre-existing plan of Employer expressly forbids it, all
Rights which may become exercisable during the term hereof shall be paid for in
cash only if Employee so elects, otherwise they may be paid for
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(i) by the transfer by Employee to Employer of so much of Employee's
Rights which, when valued at the highest trading price of the underlying
securities of Employer during the previous six months, will offset the price of
the Rights then being exercised;
(ii) by means of a non-recourse Note with interest at the lowest
rate, if any, required to be charged by any governmental authority, to accrue
and become due and payable with the principle, in an amount no greater than the
exercise price, given by Employee to Employer and secured solely by the shares
of stock being paid for thereby, which Note shall become due and payable at the
earlier of the expiration hereof or, on a pro rata basis, the sale by Employee
of all or part of the Rights or underlying stock which constitute security for
the Note; or
(iii) by any combination of cash and (i) or (ii), above.
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. 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 acceptable to Employer, which approval shall not be
unreasonably withheld, for business related travel and entertainment expenses,
and that Employee shall submit to Employer reasonably detailed receipts with
respect thereto.
7. Vacation. Employee shall be entitled to receive four (4)weeks paid
vacation time after each year of employment upon dates agreed upon by Employer.
Upon separation of employment, for any reason, vacation time accrued and not
used shall be paid at the salary rate of Employee in effect at the time of
employment separation.
8. Secrecy. At no time shall Employee disclose to anyone any confidential
or secret information (not already constituting information available to the
public) concerning (a) internal affairs or proprietary business operations of
Employer or (b) any trade secrets, new product developments, patents, programs
or programming, especially unique processes or methods.
9. Covenant Not to Compete. Subject to, and limited by, Section 11(b),
Employee will not, at any time, anywhere in the world, during the term of this
Agreement, and for one (1) year thereafter, either directly or indirectly,
engage in, with or for any enterprise, institution, whether or not for profit,
business, or company, competitive with the business(as identified herein) of
Employer as such business may be conducted on the date thereof, as a creditor,
guarantor, or financial backer, stockholder, director, officer, consultant,
advisor, employee, member, inventor, producer, director, or otherwise of or
through any corporation, partnership, association, sole proprietorship or other
entity; provided, that an investment by Employee, his spouse or his children is
permitted if such investment is not more than four percent (4%) of the total
debt or equity capital of any such competitive enterprise or business and
further provided that said competitive enterprise or business is a publicly held
entity whose stock is listed and traded on a national stock exchange or through
the NASDAQ Stock Market. As used in this Agreement, the business of Employer
shall be deemed to include the development and implementation of individualized
television technology or programs.
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10. Termination.
a. Termination by Employer
(i) Employer may terminate this Agreement upon written notice
for Cause. For purposes hereof, "Cause" shall mean (A) engaging by the Employee
in conduct that constitutes activity in competition with Employer; (B) the
conviction of Employee for the commission of a felony; and/or (C) the habitual
abuse of alcohol or controlled substances. Notwithstanding anything to the
contrary in this Section 10(a)(i), Employer may not terminate Employee's
employment under this Agreement for Cause unless Employee shall have first
received notice from the Board advising Employee of the specific acts or
omissions alleged to constitute Cause, and such acts or omissions continue after
Employee shall have had a reasonable opportunity (at least 10 days from the date
Employee receives the notice from the Board) to correct the acts or omissions so
complained of. In no event shall alleged incompetence of Employee in the
performance of Employee's duties be deemed grounds for termination for Cause.
(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 during any twelve-month period. If Employee's employment is
terminated under this Section 10(a)(ii): (A) for the first six months after
termination, Employee shall be paid 100% of his full compensation under Section
4(a) of this Agreement at the rate in effect on the date of termination, and in
each successive 12 month period thereafter Employee shall be paid an amount
equal to 67% of his compensation under Section 4(a) of this agreement at the
rate in effect on the date of termination; (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, 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) This agreement automatically shall terminate upon the
death of Employee, except that Employee's estate shall be entitled to receive
any amount accrued 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 amount to
which Employee was entitled of the time of his death.
b. Termination by Employee
(i) Employee shall have the right to terminate his employment
under this Agreement upon 30 days' notice to Employer given within 90 days
following the occurrence of any of the following events (A)through (F) or within
three years following the occurrence of event (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;
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(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 upon thirty (30) days written notice.
c. If Employer shall terminate Employee's employment other than due
to his death or disability or for Cause (as defined in Section 10(a)(i) of this
Agreement), or if Employee shall terminate this Agreement under Section
10(b)(i), Employer's obligations under Section 4 shall be absolute and
unconditional and not subject to any offset or counterclaim and Employee shall
continue to be entitled to receive all amounts provided for by Section 4 and all
additional employee benefits under Section 4 regardless of the amount of
compensation he may earn with respect to any other employment he may obtain.
11. Consequences of Breach by Employer; Employment Termination
a. If this Agreement is terminated pursuant to Section 10(b)(i)
hereof, or if Employer shall terminate Employee's employment under this
Agreement in any way that is a breach of this Agreement by Employer, the
following shall apply:
(i) Employee shall receive as a bonus, and in addition to his salary
continuation pursuant to Section 10.c., above, a cash payment equal to the
Employee's total base salary as of the date of termination hereunder for the
remainder of the term plus an additional amount to pay all federal, state and
local income taxes thereon on a grossed-up basis as heretofore provided, payable
within 30 days of the date of such termination; except that if this Agreement is
terminated pursuant to Section 10(b)(i)(G),then Employee shall not be entitled
to receive a bonus under this Section 11(a)(i) but shall instead receive a
lump-sum payout of Employee's total base salary for the remainder of the term
plus an additional amount to pay all federal, state and local income taxes
thereon on a grossed-up basis as heretofore provided, payable within 30 days of
the date of such termination.
(ii) Employee shall be entitled to payment of any previously
declared bonus and additional compensation as provided in Section 4(a), (b) and
(f) above.
b. In the event of termination of Employee's employment pursuant to
Section 10(b)(i) of this Agreement, the provisions of Section 9 shall not apply
to Employee.
12. Remedies. Employer recognizes that because of Employee's special
talents and stature, in the event of termination by Employer hereunder (except
under Section 10(a)(i) or (iii), or in the event of termination by Employee
under Section 10(b)(i) before the end of the agreed term), Company 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.
13. Excise Tax. In the event that any payment or benefit received or to be
received by Employee in connection with a termination of his employment with
Employer would constitute a "parachute payment" within the meaning of Code
Section 280G or any similar or successor provision to 280G and/or would be
subject to any excise tax imposed by Code Section 4999 or any similar or
successor provision then Employer shall assume all liability for the payment of
any such tax and Employer shall immediately reimburse Employee on a "grossed-up"
basis for any income taxes attributable to Employee by reason of such Employer
payment and reimbursements.
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14. 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 Sections 8 and 9
hereof, shall on the written request of either party served on the other be
submitted to arbitration. Such arbitration 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.
15. Attorneys' Fees and Costs. If any action at law or in equity is
necessary to enforce or interpret the terms of this Agreement, the prevailing
party shall be entitled to reasonable attorney's fees, costs and necessary
disbursements in addition to any other relief to which he may be entitled.
16. 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. 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 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 8, 9, 12, 13, 14, 15, 18, 19 and 20
shall survive the termination of this Agreement.
17. Assignment. This Agreement shall not be assigned to other parties.
18. 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 state of New York, without regard to the conflicts of laws principles
thereof.
19. 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:
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(i) if to the Employer:
Ambient Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Telefax:
Telephone:
Xxxxxxx, Savage& Xxxxxxxxx, LLP
000 Xxxx 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esq.
Telefax: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to the Employee:
Xxxx X. Xxxxxxxx
00 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
20. 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.
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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: s/ Xxxxxxx Xxxxxxxxxx
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EMPLOYEE
s/ Xxxx X. Xxxxxxxx
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Xxxx X. Xxxxxxxx