Exhibit 10.3
AGREEMENT
THIS AGREEMENT is made and entered into as of the 15th day of June, 2001
by and between Ambient Corporation, a Delaware corporation (hereinafter
"Ambient" or the "Company") and TABAY Holdings, L.L.C., a Delaware limited
partnership ( hereinafter the "Finder").
W I T N E S S E T H
WHEREAS, the Company, or its affiliates, is in the business developing and
marketing various power line telecommunication products and components;
WHEREAS, the Finder is engaged by the Company, for a period terminating on June
30, 2001, as the Company's finder for the private placement of the Company's
securities to accredited investors (the "Services");
WHEREAS, the Company desires remunerate the Finder in full for the
Services on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
undertakings of the parties, it is hereby agreed:
1. Finders Fee. For Services rendered hereunder, and in full and final payment
thereof, the Company hereby issues to the Finder, 250,000, shares of the
Company's Common Stock par value $0.01 (the "Shares").
2. Representations of Finder Respecting the Shares.
2.1 General Restriction on Transfer. Except for transfers otherwise
permitted by this Agreement or applicable law (including transfers made pursuant
to an effective registration statement as provided for hereunder), Finder agrees
that it will not transfer any of the Shares.
2.2 Not for Resale. Finder represents that it is acquiring the Shares for
investment for its own account and not with a view to, or for resale in
connection with, the distribution or other disposition thereof. Finder agrees
that it will not, directly or indirectly, offer, transfer, sell, assign, pledge,
hypothecate or otherwise dispose of (each a "Transfer") any of the Shares unless
such Transfer complies with the provisions of this Agreement and (i) the
Transfer is pursuant to an effective registration statement under the Securities
Act of 1933, as amended, and the rules and regulations in effect thereunder (the
"Securities Act"), or (ii) counsel for Finder shall have furnished the Company
with an opinion, reasonably acceptable to the Company, that no such registration
is required because of the availability of an exemption under the Securities
Act, except where such sale or transfer may be effected under Rule 144 of the
Rules and Regulations promulgated under the Securities Act and no opinion is
necessary to enable such sale or transfer.
2.3 Certain Permitted Transfers. Notwithstanding the general prohibition
on Transfers contained herein, the Company acknowledges and agrees that any
Transfer in a private transaction which does not include a public distribution
is permitted and need not require an opinion of counsel, provided, that prior to
such Transfer, the transferee shall deliver to the Company a valid written
undertaking to be bound by the terms of this Agreement.
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3. Registration
The Company agrees that if, at any time and from time to time the Board of
Directors of the Company shall authorize the filing of a registration statement
(any such registration statement being hereinafter called a " Registration
Statement") under the Securities Act other than a registration statement on Form
S-8 (or other form which does not include substantially the same information as
would be required in a form for the general registration of securities) in
connection with the proposed offer of any of its securities by it or any of its
shareholders, the Company will include in the securities covered by such
Registration Statement all Shares issuable pursuant to the terms of this
Agreement. The Finder's rights hereunder shall be subject to the Finder's
compliance with the conditions or restrictions, if any, including without
limitation, lock-ups, required by an underwriter (in the case of an underwritten
offering) and any restrictions or lock-ups required by an existing shareholder
(in the case of an amendment to a currently effective registration statement).
4. Proprietary Information.
4.1 The term "Information" 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 Finder 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 Finder or
similar agreements by other Company consultants or employees, (c) shall have
been received by the Finder from another person or entity having no obligation
to the Company or (d) is approved in writing by the Company for release by the
Finder.
4.2 The Finder agrees to hold in trust and confidence all Information
disclosed to it and further confirms that it will not exploit or disclose the
Information to any other person or entity or use the Information directly or
indirectly for any purpose other than for its work with the Company.
4.3 The Finder acknowledges and agrees that the Information furnished by
the Company to it 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.
5. General Provisions
5.1 This Agreement constitutes the entire agreement between the parties
with respect to the subject matter hereof, and shall not be amended, modified or
varied by any oral agreement or representation or otherwise other than by a
written instrument executed by both parties or their duly authorized
representatives.
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5.2 The terms and conditions of this Agreement supersede those of all
previous agreements and arrangements, either written or oral between the Company
and Finder relating to the subject thereof.
5.3 Finder acknowledges and agrees that he is an independent contractor,
is not the agent of the Company and has no authority in such capacity to bind or
commit the Company by or to any contract or otherwise. Finder is not, expressly
or by implication, an employee of the Company for any purpose whatsoever.
5.4 This Agreement shall be interpreted, construed and governed in
accordance with the law of the State of New York.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
Ambient Corporation TABAY Holdings, L.L.C.
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer Title: Authorized Member
