Exhibit 10.35
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
AGREEMENT entered into as of the 31st day of December, 2001 between Xxxxxx
Cern (the "Employee") and Ambient Corporation, a Delaware corporation ("Ambient"
or the "Company").
W I T N E S S E T H
WHEREAS, the Company and the Employee entered into an Employment Agreement
dated as of November 20, 2000 (the "Original Agreement"); and
WHEREAS, the Company and the Employee desire to amend and restate the
Original Agreement in its entirety through execution of this Agreement.
NOW THEREFORE, in consideration of the premises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Engagement and Duties
1.1 As of the Effective Date (as defined in Section 2), the Company
shall continue to employ Employee and Employee shall continue his employment
with the Company as its Chief Engineer, upon the terms and conditions set forth
herein. The Employee shall perform faithfully and diligently the duties
customarily performed by persons in the position for which Employee is engaged.
Employee shall devote Employee's full business time and efforts to rendition of
such services and to the performance of such duties as are set forth herein.
The Employee shall further have such duties and
responsibilities commensurate with his position as may be assigned to him from
time to time by the Company. The Company agrees that it will not hire an
individual to serve as Chief Technology Officer prior to June 30, 2002.
Thereafter, the Company may hire an individual as Chief Technology Officer
without obtaining the consent of Employee, but shall seek the advice and counsel
of Employee.
1.2 The Employee shall report directly to the Company's Chief
Executive Officer.
1.3 Employee shall perform his duties hereunder primarily from the
Company's premises, presently in Brookline, Massachusetts. The parties
acknowledge and agree that the nature of the Employee's duties hereunder will
also require substantial
domestic and possible international travel. Employee shall be subject to the
same travel policy as all other members of the Company's senior management.
2. Term
2.1 Subject to the approval of the Company's Compensation Committee
which will meet at the next regularly scheduled meeting of the Board of
Directors in January 2002, this Agreement shall be deemed to have commenced on
December 31, 2001 (the "Effective Date") and shall end on the earlier of: (i)
the death or disability (as defined herein) of the Employee, (ii) termination of
Employee's employment with Cause (as defined herein); (iii) termination by the
Company without Cause; or (iv) two (2) years from the date of this Agreement.
This Agreement shall automatically renew for additional one year terms without
the need for any action by the parties unless either party gives notice of its
intention not to renew this Agreement at the end of any term at least 90 days
prior to the end of such term. Notwithstanding anything to the contrary
contained herein, this Agreement shall not be effective unless and until
approved by the Compensation Committee.
2.2 For the purpose of this paragraph 2, "disability" shall mean any
physical or mental illness or injury as a result of which Employee remains
absent from work for an aggregate of three (3) months (whether or not
consecutive) in any twelve (12) month period. Disability shall occur at the end
of any such period.
2.3 The Company shall have the right to terminate for "Cause" upon
notice to the Employee only in the event of (a) a failure by the Employee
substantially to perform his duties hereunder, or (b) a failure by the Employee
to substantially comply with the lawful and proper instructions of the Chief
Executive Officer or the Board, or (c) Employee's illegal or unethical acts or
conduct which causes material harm or loss to the Company or otherwise brings
notoriety to the Company or has a material adverse effect on the name or public
image of the Company, provided, however that with respect to clauses (a), (b)
and (c) the foregoing shall not constitute "Cause" if Employee, after being
notified in writing by the Company 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). The parties
acknowledge and agree that Employee's failure to perform duties and
responsibilities not ordinarily associated (or consistent) with the position of
Chief Engineer shall not constitute a basis for "Cause".
2.4 During the period following notice of termination until the
effective date of termination by either party for whatever reason, the Employee
shall cooperate with the Company and use his best efforts to assist the
integration into the Company the person or persons who will assume the
Employee's responsibilities.
2.5 Upon termination for Cause or upon the death or disability of
Employee, Employee shall be entitled to the compensation set forth as Gross
Salary
2
herein, prorated to the effective date of such termination, as full compensation
for any and all claims of Employee under this Agreement. Upon the termination of
this Agreement as a result of the death or disability of Employee prior to
February 1, 2002, Employee or his estate, as applicable, shall be paid the bonus
referred to in Section 3.2.
2.6 If this Agreement is terminated by the Company pursuant to
Section 2.1(i) or (iii), then Employee shall be entitled to full payment of the
Bonus defined under Section 3.2 (unless such Bonus has been previously paid to
Employee) in one lump sum within ten (10) days following the effective date of
such termination and severance payment as follows: three months of his Gross
Salary if such termination occurs prior to January 1, 2002; six months of his
Gross Salary if such termination occurs between January 1, 2002 and June 30,
2002; one year of his Gross Salary if such termination occurs after June 30,
2002; provided however, that Employee shall not receive any severance if he is
terminated pursuant to Section 2.1(i) after December 31, 2002 . Any such
termination payment shall be payable over twelve (12) months in equal bi-monthly
installments. If this Agreement is terminated by the Employee after the end of
the initial two (2) year term, Employee shall be entitled to receive severance
equal to twelve (12) months of his then current salary payable in equal
bi-monthly installments over the one (1) year period following the effective
date of termination; provided, that, Employee makes himself available for
consulting services to the Company for twelve weeks during such one year period
subject to reasonable vacation as agreed to by the Employee and the Company.
3. Remuneration
3.1 Salary. During the term hereof, the Company shall pay to the
Employee for all services rendered hereunder as salary for the period from the
Effective Date through the first anniversary thereof, payable in accordance with
the Company's normal payroll practices, the amount of $150,000 per annum (the
"Gross Salary"), less required deductions for state and federal withholding tax,
social security and other employee taxes. Employee's Gross Salary shall be
subject to annual review on or about March 31, 2002 (and adjustments, if any,
will be retroactive to October 1, 2001) and each December thereafter during the
term hereof and the Company may, in its full discretion based on such review,
increase (but not decrease) Employee's Gross Salary as the Company may
determine. Such review shall be held no later than thirty (30) days preceding
the anniversary of each employment year and the Gross Salary adjustment, if any,
shall go into effect on the anniversary of the employment.
3.2 Bonus as specified in the Original Agreement. The Company shall
pay to the Employee a bonus of $50,000 on February 1, 2002, less required
deductions for state and federal withholding tax, social security and other
employee taxes. In the event the Company does not make payment of such bonus to
Employee on or about February 1, 2002, the Employee shall be entitled to
interest on the full bonus amount at the rate of prime (as published by XX
Xxxxxx Xxxxx, or such other institution as the parties may agree) plus one
percent. The Company shall offset such interest payments against interest due to
the Company under the Note (as defined below).
3
3.3 On the date of signing of this Agreement, the Employee shall
purchase 1,000,000 shares of the Company's Common Stock at a purchase price of
$0.20 per share (the "Shares"). The Employee will pay for such shares by the
issuance to the Company of a $200,000 non-recourse promissory note bearing
interest at the rate of prime (as published by XX Xxxxxx Chase, or such other
institution as the parties may agree) plus one percent (the "Note"). The
principal and interest on the Note shall be payable in three (3) equal
installments on February 15, 2003, March 15, 2003 and April 15, 2003; provided,
however, that in lieu of repaying the principal amount due under the Note, the
Employee, at his option and upon notice to the Company, shall have the right to
require the Company to repurchase all or any portion of the Shares at a purchase
price of $0.20 per Share and the amount owed to the Employee upon such
repurchase shall be applied against the principal otherwise due under the Note.
The Note will be secured by a pledge of the Shares pursuant to a separate pledge
and security agreement. Upon payment (or pre-payment) of all or any portion of
the Note, the Employee will receive the pro-rata amount of Shares. The Shares
will be subject to a lock-up until the later of: (i) the date the purchase price
for such Shares is paid in full; or (ii) December 31, 2002.
3.4 Options. Employee shall be granted options to purchase up to
1,900,000 of the Company's Common Stock (the "Options") at the exercise prices
and upon the vesting schedule set forth in Schedule A. In addition, in the event
this Agreement is terminated by Employee or Employer (other than pursuant to
Section 2.1(iii)), Employee shall forfeit all Options that have not vested as of
the effective date of termination. The terms of such Options shall be reflected
in a separate option agreement to be entered into by the parties. All Shares and
Options referred to herein shall be adjusted proportionately in the event of any
stock split, stock dividend, reclassification or recapitalization.
In the event of a "Change of Control" subsequent to January 1, 2002
whereby:
(A) A person (other than a person who is an officer or a
Director of the Company 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 the Company
securities having 50% or more of the combined voting power of then outstanding
securities of the Company that may be cast for the election of directors of the
Company;
(B) At any time, a majority of the Board-nominated slate of
candidates for the Board is not elected;
(C) The Company consummates a merger in which it is not the
surviving entity;
4
(D) Substantially all of the Company's assets are sold; or
(E) The Company's stockholders approve the dissolution or
liquidation of the Company; then
(i) All Options granted by the Company to Employee
pursuant to Section 3.4, shall become vested, accelerate and become immediately
exercisable.
4. Fringe Benefits.
4.1 Vacation. Employee shall be entitled to an aggregate of 15
business days of paid vacation per year, during the term hereof, prorated for
any portion of a year to date of termination. The timing and duration of any
vacation shall be as agreed upon by the parties. In addition to the foregoing,
the Employee shall be entitled to paid vacation for the following legal holidays
in the United: New Year's, President's Day, Memorial Day, July 4, Labor Day,
Thanksgiving Day (Thursday and Friday), and Christmas; and during the holidays
of Rosh Hashana, Yom Kippur, first two days and last two days of Succot,
Passover and Shavuot.
4.2 No Accumulation. The Employee shall not be entitled to
accumulate unused vacation or other fringe benefits from year to year without
the written consent of the Company. Further, Employee shall not be entitled to
receive payments in lieu of any compensation or payment for or in lieu of said
fringe benefits prorated to the date of termination of this Agreement.
4.3 Vehicle. Company shall provide Employee with use of a medium
size automobile or, alternatively, at the Company's option, reimburse employee
for all outlays incurred by Employee with respect to the leasing of such
automobile. Employee shall pay for registration, gas, maintenance and insurance
costs regarding such vehicle. Employee shall be solely responsible for all taxes
payable in connection with use of such automobile.
4.4 Health Insurance. The Company intends to establish a
Company-wide health insurance plan under which its employees may participate.
Pending the establishment of such plan, the Employee shall be entitled to be
reimbursed quarterly, for medical and dental insurance payments made by the
Employee to a bona fide health insurance provider, in accordance with the
Company's policy as it might change from time to time, up to a maximum monthly
amount of $500 payable by the Company. The Company may in its sole discretion
and at any time during the course of this agreement and in compliance with
applicable law, substitute a Company sponsored health insurance program
including without limitation, medical insurance and dental insurance plans for
the medical and dental insurance reimbursement payments specified herein. The
employee's participation in such plans shall be on the same terms and conditions
as other employees' of the Company.
5
5. Development Rights
The Employee agrees and declares that all proprietary information
including but not limited to trade secrets, know-how, patents and other rights
in connection therewith developed by or with the contribution of Employee's
efforts during his employment with the Company shall be the sole property of the
Company. Upon the Company's request (whenever made), Employee shall execute and
assign to the Company all the rights in the proprietary information.
6. Future Companies/Sale of Technology
In the event that management of the Company elects, in its sole
discretion, to form or organize a company or other entity in which the Company
will hold a majority of the initial outstanding capital (hereinafter, a "New
Company") for the purpose of exploiting any technology, know-how or other
process developed (or any such technology, know-how or process that is yet
in-process but is substantially completed) by Employee in the course of his
employment hereunder (the "Subsequently Developed Technology"), then Employee
shall receive 5% of such New Company's initial equity at the time of its
incorporation; provided that Employee agrees that such equity may be diluted if
there are additional issuances of New Company equity after incorporation, so
long as all stockholders are diluted equally. Nothing contained herein shall,
however, be deemed, construed or interpreted to obligate the Company to
undertake any activity to exploit any Subsequently Developed Technology. In any
circumstance where no New Company is established but the Company is
contractually entitled to derive any royalties or future payments directly from
the exploitation of Subsequently Developed Technology, then the Company and
Employee agree to enter into good faith negotiations that are intended to enable
Employee to participate in or share in such payments to which the Company may be
so entitled, it being understood that Employee's participation in or share of
any amounts to which the Company may so entitled shall not in any event exceed
5% of such amount.
If the Company incorporates a New Company as a result of the
Employee's substantial initiatives, then the Employee shall receive 2.5% of such
New Company's equity at the time of its incorporation.
If the Company either ceases operations or changes its business
focus such that the Company no longer intends to utilize the technology set
forth on Exhibit A hereto (the "Existing Technology"), the Company shall sell
the Existing Technology to Employee for ninety percent (90%) of its then current
fair market value as determined by an independent appraiser mutually selected by
the Company and Employee.
7. Employee Representations
The Employee represents and warrants to the Company that the
execution and delivery of this Agreement and the fulfillment of the terms hereof
(i) will not
6
constitute a breach of any agreement or other instrument to which Employee is
party, (ii) does not require the consent of any person, and (iii) shall not
utilize during the term of his employment any proprietary information of any
third party, including prior employers of the Employee.
8. Confidentiality
8.1 The term "Information" as used in this section means any and all
confidential and proprietary information including but not limited to any and
all specifications, formulae, prototypes, software design plans, computer
programs, and any and all records, data, methods, techniques, processes and
projections, plans, marketing information, materials, financial statements,
memoranda, analyses, notes, and other data and information (in whatever form),
as well as improvements and know-how related thereto, relating to the Company or
its products. Information shall not include information that (a) was already
known to or independently developed by the Employee prior to its disclosure as
demonstrated by reasonable and tangible evidence satisfactory to the Company;
(b) shall have appeared in any printed publication or patent or shall have
become part of the public knowledge except as a result of breach of this
Agreement by the Employee or similar agreements by other Company employees (c)
shall have been received by the Employee from another person or entity having no
obligation to the Company or (d) is approved in writing by the Company for
release by the Employee.
8.2 The Employee agrees to hold in trust and confidence all
Information disclosed to Employee and further agrees not to exploit or disclose
the Information to any other person or entity or use the Information directly or
indirectly for any purpose other than for Employee's work with the Company.
8.3 The Employee agrees to disclose the Information only to persons
necessary in connection with Employee's work with the Company and who have
undertaken the same confidentiality obligations set forth herein in favor of the
Company. The Employee agrees to assume full responsibility for the
confidentiality of the Information disclosed to Employee and to prevent its
unauthorized disclosure, and shall take appropriate measures to ensure that such
persons acting on his behalf are bound by a like covenant of secrecy.
8.4 The Employee acknowledges and agrees that the Information
furnished hereunder is and shall remain proprietary to the Company. Unless
otherwise required by statute or government rule or regulation, all copies of
the Information, shall be returned to the Company immediately upon request
without retaining copies thereof.
9. Non-Compete.
9.1 Employee will not, directly or indirectly, for his own account
or as an employee, officer, director, consultant, joint venturer, shareholder,
investor, or otherwise (except of as an investor in a corporation whose stock is
publicly traded and in
7
which the Employee holds less than 5% of the outstanding shares) engage,
directly or indirectly, in the design, development, production, sale or
distribution of any product or component that directly or indirectly competes
with a product or component (i) being designed, produced, sold or distributed by
the Company or any of its affiliates or (ii) to which the Company or any of its
affiliates shall then have proprietary rights; provided such affiliates operate
in a field directly related to the business of the Company or involve
distribution or promotion of the Company's products or technology.
9.2 Employee will not hire or otherwise contract the services of,
whether directly or indirectly (i) an employee of the Company, (ii) a former
employee of or Consultant to the Company whose employment or consultancy with
the Company ended less than six months prior to the date of such hiring, or
(iii) any corporation or entity in which such employee, consultant or former
employee or former consultant is an officer, director or shareholder holding 25%
of the equity or is employed providing service to that corporation or entity.
9.3 Employee's undertakings herein under Section 9 shall be binding
upon Employee's successors, heirs or assigns, and shall continue until the later
of (i) the expiration of one year from the date of execution of this Agreement
or (ii) the expiration of one year. Notwithstanding the foregoing, in the event
the Company fails to make any severance payment due to Employee pursuant to
Section 2.1 and the Company fails to cure such payment default within ten (10)
business days of receipt of written notice from the Employee notifying the
Company of such payment default, the provisions of Section 9.1 shall expire and
be of no further force and effect.
9.4 Employee acknowledges that the restricted period of time
specified under this Section 9 is reasonable, in view of the nature of the
business in which the Company is engaged and Employee's knowledge of the
Company's business and products. If such a period of time or the lack of any
geographic restrictions should be determined to be unreasonable in any judicial
proceeding, then the period of time shall be reduced so that this Agreement may
be enforced in such an area and during such a period of time as shall be
determined to be reasonable by such judicial proceeding.
9.5 During the term of this Agreement and for a period of two (2)
years thereafter, neither Company nor Employee shall make any disparaging,
defamatory and/or slanderous statements regarding the other party or, to the
extent applicable, its officers, directors, employees, consultants, stockholders
or other representatives.
10. Miscellaneous
10.1 Benefit and Assignment. This Agreement shall inure to the
benefit of and be binding upon the Company, its successors and assigns. The
rights and obligations of the Employee under this Agreement may not be assigned
by the Employee.
10.2 Entire Agreement. This Agreement constitutes the entire
understanding and agreement between the parties, and supersedes any and all
prior
8
discussions and agreements and correspondence, including without limitation the
Original Agreement (which is amended and restated in its entirety as provided in
this Agreement), and may not be amended or modified in any respect except by a
subsequent writing executed by both parties.
10.3 Notices. All notices or other communications hereunder shall be
in writing and shall be sent to either party by hand or by Registered or
Certified mail, postage prepaid, return receipt requested, or sent by telegram
or facsimile to the addresses set forth in the signature page of this Agreement
or to such other address as the recipient may designate by notice in accordance
with the provisions of this section.
10.4 Arbitration; Applicable Law. Any dispute arising out of any
matter involving this Agreement shall be submitted to binding arbitration in
accordance with the Commercial Rules of the American Arbitration Association
then in effect. If the parties to the arbitration are unable to agree on an
arbitrator, an arbitrator will be selected pursuant to such Rules. Any such
arbitration shall be held in New York County, New York. The arbitrator so
selected must enforce the terms of this Agreement and must rule in accordance
with the governing law provision set forth below. Judgment upon any award
rendered by the arbitrators may be entered in any court having jurisdiction.
This Agreement shall be interpreted, governed, construed and enforced according
to the internal laws of the State of Delaware, without giving effect to its
conflict of laws provisions.
9
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
signed as of the date stated above.
AMBIENT CORPORATION
Address: By: /s/ Xxxx X. Xxxxx
-------------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
/s/ Xxxxxx Cern
----------------------------------------
Address: Xxxxxx Xxxx
00
