EXHIBIT 10.33
EMPLOYMENT AGREEMENT
with
Xxxxxx X. Xxx
AGREEMENT entered into as of the 27th day of September 2000 between Xxxxxx
X Xxx (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 desires to engage the Employee for the Company upon
the terms and conditions contained herein; and
NOW THEREFORE, in consideration of the promises and mutual agreements
hereinafter contained, the parties hereto agree as follows:
1. Engagement & Duties
1.1 With effect from the effective date (as defined in Section 2), the
Company employs Employee and Employee accepts employment with the Employer, on a
full-time basis, as Chief Network Architect. In such capacity, Employee shall be
primarily responsible for designing and operating data networks and any other
task(s) commensurate with Employee's position and experience. 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.
1.2 The Employee's authority shall be subject to the authority of the
Chief Executive Officer ("CEO") of the Company or to whom the CEO shall so
instruct
1.3 The Parties acknowledge and agree that the nature of the Employee's
duties hereunder may require substantial domestic and possible international
travel.
2. Term
2.1 Employee's employment under this Agreement shall commence on September
18, 2000 (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
either party without cause upon prior written notice upon ninety (90) days prior
written notice; (iv) two (2) years from the date of this Agreement. After the
expiration of such initial term (other than for reasons set forth in clauses
(i), (ii) and (iii), 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 to not renew this Agreement at the
end of such term at least 60 days prior to the end of such term.
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 a period of two (2) successive months, or an aggregate of
two (2) months in any twelve (12) month period. Disability shall occur at the
end of any such period.
2.3 For the purpose of this paragraph 2, "cause" shall exist if Employee
(i) substantially fails to perform the Employee's areas of responsibility set
forth herein, (ii) engages conduct which, in the sole discretion of the Company,
is unethical, illegal or which otherwise brings adverse notoriety to Company or
has an adverse effect on the name or public image of the Company, (iii) fails to
comply with the instructions of Company in a manner detrimental to the Company,
provided that with respect to clauses (i) and (iii), if Employee has cured any
such condition (that is reasonably susceptible to cure) within 25 days following
delivery of the advance notice (as defined herein) then "cause" shall be deemed
not to exist. For purposes of this Paragraph 2, "advance notice" shall
constitute a written notice delivered to Employee that sets forth with
particularity the facts and circumstances relied upon by the Company as the
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, Employee shall be entitled to the
compensation set forth as Gross Salary herein, prorated to the effective date of
such termination, and stock options which have vested under section 3.2 as full
compensation for any and all claims of Employee under this Agreement.
3. Remuneration
3.1 Salary. During the term hereof, and subject to the satisfactory
performance of the services required to be performed hereunder by Employee, the
Company shall pay to the Employee for all services rendered hereunder, as
salary, payable bi-monthly in accordance with the Employer's normal payroll
practices, the amount of$10,830 monthly (the "Gross Salary"), less required
deductions for state and federal withholding tax, social security and other
employee taxes
3.2 Ambient Stock Options. The Employee shall be entitled to receive
50,000 options to purchase shares of the Common stock of the Company (the
"Options") under the Company's 2000 Equity Incentive Plan ("the Plan"), subject
to the approval of the Plan by the Company's stockholders at the 2000 annual
general meeting of the stockholders. The Employee shall execute an option
agreement that is consistent with the terms and conditions of the Plan. The
Options shall vest over a period of two years, with
50% of the options vesting on September 30, 2001 and the remaining Options
vesting on September 30 2002, , subject to Employees' continuing employment with
the Company.
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 States: 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 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 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. 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. 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
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.
7. Confidentiality
7.1 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.
7.2 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.
7.3 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.
7.4 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.
8. Non-Compete.
8.1 Employee will not, directly or indirectly, for his own account or as
an employee, officer, director, consultant, joint venture, shareholder,
investor, or otherwise ( except of as an investor in a corporation whose stock
is publicly traded and in which the Employee holds less than 5% of the
outstanding shares) interest him/herself or 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) then being designed, produced, sold or
distributed by the Company or any of its affiliates (ii) or 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 promoting of the Company's products or technology.
8.2 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
the Company whose employment 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 or former employee is an officer, director or shareholder holding 25%
of the equity or is employed providing service to that corporation or entity.
8.3 Employee's undertakings herein under section 8 shall be binding upon
Employee's successors, heirs or assigns, and shall continue so long as Employee
is employed hereunder through the end of the 12 months following the expiration
or termination (for whatever reason) of this Agreement.
8.4 Employee acknowledges that the restricted period of time specified
under this section 8 are 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 geographical location should be
determined to be unreasonable in any judicial proceeding, then the period of
time and area of restriction 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. Miscellaneous
9.1 Benefit & 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.
9.2 Entire Agreement This Agreement constitutes the entire understanding
and agreement between the parties, and supersedes any and all prior discussions
and agreements and correspondence, and may not be amended or modified in any
respect except by a subsequent writing executed by both parties.
9.3 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 address set forth in the Preamble to this Agreement or to such
other address as the recipient may designate by notice in accordance with the
provisions of this section.
9.4 Applicable Law. 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. Jurisdiction and venue for any
action arising from this Agreement shall reside in the appropriate court in city
limits of Boston.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
signed as of the date stated above.
Ambient Corporation
/s/ Xxxx Xxxxxxxx /s/ Xxxxxx X. Xxx
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by Xxxx Xxxxxxxx Xxxxxx X. Xxx
