EXHIBIT 10.26
TERMINATION AGREEMENT
TERMINATION AGREEMENT entered into as of September 4, 2000, by and between
AMBIENT CORPORATION, a Delaware corporation (hereinafter, the "Company") and
XXXXX XXXXXXXX (hereinafter, "Xxxxxxxx").
W I T N E S S E T H
WHEREAS, Xxxxxxxx currently holds the position of Chief Financial Officer
of each of the Company and Xxxxx.xxx Ltd, an Israeli company and a subsidiary of
the Company ("Kliks"), Ambient Ltd., an Israeli company and a subsidiary of the
Company, PLT solutions, Inc., a Delaware corporation and a subsidiary of the
Company ("PLT") and Insulated Connection Corporation, an Israeli company and
subsidiary of the Company ("ICC"; the Company and Kliks, Ambient Ltd., PLT and
ICC may hereinafter be referred to collectively as the "Companies") and also
serves as a director of the Company; and
WHEREAS, the parties desire to set forth their agreement respecting the
resignation by Xxxxxxxx from the position held with each of the Companies and
from his directorship with the Company.
NOW, THEREFORE, in consideration of the agreements and covenants contained
herein, Xxxxxxxx and the Company hereby agree as follows:
1. Resignation from all Position held with the Companies
1.1 By his signature below and effective upon delivery, Xxxxxxxx hereby
resigns from the position of Chief Financial Officer of the Company and each of
the other Companies and, by the signature below of its duly authorized officer,
the Company, on its behalf and on behalf of each of the other Companies, hereby
accepts the resignation of Xxxxxxxx. Xxxxxxxx will continue in the employ of the
Company through September 30, 2000, for the purposes of assisting in the
transmission of his duties to individual(s) designated by the Company.
1.2 By his signature below and effective as of September 5, 2000, Xxxxxxxx
hereby resigns from the position of director of the Company and acknowledges and
agrees that his signature hereafter set forth below and delivery of this
Agreement shall serve as notice to the Board of Directors of the Company of such
resignation and the Company, by the signature below of it duly authorized
officer, hereby accepts the resignation of Xxxxxxxx.
2. Severance Package
2.1 In consideration of the releases contained in Section 3 hereof and
subject to the compliance by Xxxxxxxx of the terms and conditions set forth
herein,
(i) the Company shall pay to Xxxxxxxx, on or before October 1, 2000, an
amount equal to six months' salary payable under the Employment Agreement,
dated as of March 1 2000, between the Company and Xxxxxxxx (hereinafter,
the "Employment Agreement");
(ii) Notwithstanding anything to the contrary contained in the Company
1998 Stock Option Plan (hereinafter, the "1998 Plan"), Xxxxxxxx shall be
entitled to exercise through June 30, 2002 options granted to him under
the 1998 Plan prior to the date hereof comprised of options for 51,000
shares of Common Stock, par value $0.001 of the Company (hereinafter, the
"Common Stock") exercisable at an exercise price per share of $0.81 and
options for 30,000 shares of Common Stock at an exercise price per share
of $0.01; and (iii) Upon (and subject to) the approval of the Company's
stockholder at the 2000 annual meeting of stockholders of a proposal to
increase the number of shares of Common Stock that the Company is
authorized to issue, the Company undertakes to issue to Xxxxxxxx 25,000
shares of Common Stock (hereinafter, the "Shares"), at a purchase price
per share of $0.01.
2.2 In the event that the Company shall subsequently file with the
Securities and Exchange Commission a registration statement (on Form SB-2 or
other appropriate form) under the Securities Act of 1933, as amended, respecting
the resale of securities then held by the Company's stockholders or other
rights-holders, then the Company, at its own expense, shall include for resale
under such registration statement the Shares and the shares of Common Stock
issuable upon exercise of the options granted to him under the 1998 Plan then
held by Xxxxxxxx; provided, that, Xxxxxxxx hereby agrees to comply with any
restriction or limitation, including but not limited to lock-ups, which may be
then imposed on any of the stockholders of rights-holders participating in such
registration statement.
2.3 Subject to the compliance by Xxxxxxxx of the terms and conditions set
forth herein, Xxxxxxxx shall be entitled to retain the use of the Company
automobile currently used by him and the Company shall execute all documents
necessary to transfer title to Xxxxxxxx to such automobile.
2.4 Upon the effective date of termination of employment, the Company will
cause its subsidiary Ambient Ltd. to transfer to Xxxxxxxx the Manager's
Insurance (Bituach Menahalim) currently in effect and to remit to Xxxxxxxx all
funds aggregated to date under the Keren Hishtalmut.
3. Restrictions on Sales or Other Disposition
3.1 In consideration of the registration rights granted to Xxxxxxxx under
Section 2.2 hereof, Xxxxxxxx hereby agrees to not sell or otherwise transfer,
during any consecutive thirty (30) day period, commencing after the date first
set forth above, more than 50,000 shares of Common Stock. The Company may
institute reasonable procedures (such as, but not necessarily limited to, the
establishment of an escrow arrangement) to assure compliance herewith.
Notwithstanding the foregoing restrictions, Xxxxxxxx may effect a private
transfer of all or part of his securities, provided the transferee agrees in a
writing provided to the Company to be bound by all of the terms hereof as if
such transferee were an original signatory hereto (and the provisions of this
document shall apply to me, such transferee and any other of the undersigned's
transferees jointly).
4. Release
4.1 In consideration of payment by the Company of the amounts set forth in
Section 2.1 hereof and the issuance of the Shares set forth therein and the
registration rights granted under Section 2.2, Xxxxxxxx (and each of his heirs,
successors, executors, attorneys, personal representatives and assigns) does
hereby absolutely and unconditionally waive, release and forever discharge each
of the Company and the other Companies, their respective 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 including
specifically, but without limiting the generality of the foregoing, claims
relating to or arising under the Employment Agreement, provided, that,
notwithstanding anything to the contrary contained herein, the foregoing release
shall not be construed to apply with respect to any continuing obligation or
duty of Xxxxxxxx under Section 7 (Confidentiality) and Section 8 (Non-compete)
in the Employment Agreement. The foregoing release shall not be construed as a
waiver by Xxxxxxxx of the due and full performance by the Company of its
obligations specifically undertaken pursuant to this Agreement.
4.2 In consideration of Xxxxxxxx'x release, each of the Companies (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 Xxxxxxxx
(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 including specifically, but without limiting the
generality of the foregoing, claims relating to or arising under the Employment
Agreement. The foregoing release shall not be construed as a waiver by Companies
of the due and full performance by Xxxxxxxx of his obligations specifically
undertaken pursuant to this Agreement.
5. Continuing Obligations
5.1 In consideration of the Company's agreements hereunder, Xxxxxxxx
agrees, from the date set forth above through December 31, 2000, to assist the
Company in the transition of the duties formerly held by him to such person or
persons as the Company shall designate and to take all reasonable measures in
connection therewith so that Xxxxxxxx'x replacement shall be able to perform
his/her duties in an appropriate and satisfactory manner.
5.2 Notwithstanding the Company's releases contained in Section 3.1
hereof, Xxxxxxxx hereby acknowledges and agrees that the provisions of Section 7
(Confidentiality) and Section 8 (Non-Compete) of the Employment Agreement shall
continue in full force and effect in accordance with their terms and nothing
contained herein shall be construed or interpreted as a waiver by the Company or
any of the other Companies of any right or remedy available to any thereof in
respect of the breach or non compliance by Xxxxxxxx of his obligation
thereunder.
6. Indemnity
The Company shall indemnify Xxxxxxxx as follows: (i) against all expenses
and liabilities, including counsel fees, reasonably incurred by or imposed upon
him in connection with any proceeding to which he may be made a party, or in
which he may become involved, by reason of his being or having been a director,
officer, employee or agent of the Company or is or was serving at the request of
the Company, as a director, officer or employee or agent of the Company, except
in such cases wherein Xxxxxxxx is adjudged guilty of willful misfeasance or
malfeasance in the performance of his duties; provided that in the event of a
settlement, the indemnification herein shall apply only when the Board of
Directors approves such settlement and reimbursement as being in the best
interests of the Company.
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. Xxxxxxxx'x 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 New York without reference to principles of
conflict of laws. Each party hereby irrevocably consents to the jurisdiction of
the appropriate New York State Court venued in the County of Manhattan for any
dispute or action relating to this Agreement.
IN WITNESS WHEREOF, the Company has caused this Agreement to be signed by
its duly authorized officer and Xxxxxxxx has signed this Agreement as of the day
and year first above written.
AMBIENT CORPORATION
By: s/ Xxxxxxx Braunold
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Title CEO
s/ Xxxxx Xxxxxxxx
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XXXXX XXXXXXXX
