EXHIBIT 10.8
CONSULTING AGREEMENT
CONSULTING AGREEMENT made and entered into this 26th day of
November, 1996 by and among Ambient Corporation, an Israeli company with offices
at the Jerusalem Technological Park, Jerusalem (hereafter "Ambient" or the
"Company") and Tekol Ltd., an Israeli company with offices at 396 Hazayit, Beit
Aryeh, D.N. Modiin 71947 (hereafter the "Consultant").
W I T N E S S E T H:
WHEREAS, the Company is in the business of marketing and
developing smart card and various computer technologies;
WHEREAS, the Company desires to engage the services of Consultant
as a consultant for financial, technical and managerial affairs; and
WHEREAS, Consultant represents that it has the requisite
financial, technical and managerial skills to render the consulting services set
forth herein:
NOW, THEREFORE, in consideration of the mutual promises,
covenants and undertakings of the parties, it is hereby agreed:
1. Engagement. The Company hereby engages Consultant and the
Consultant agrees to provide financial, technical and managerial consulting
services to the Company as determined from time to time by the Board of
Directors of the Company on the terms and conditions set forth herein.
2. Duties
2.1 Consultant agrees to provide advice and services to
the Company regarding the Company's financial and technical operations of its
research and development activities as determined from time to time by the
Company's Board of Directors. Consultant shall devote no less than eight hours
per week to the consulting services hereunder.
2.2 Consultant shall report regularly to the President of
the Company with respect to Consultant's activities hereunder.
2.3 Without detracting from the obligations of section 2.1
supra.
Managerial duties shall include:
i) overseeing administration of Company's
research and development project;
ii) reporting in writing to the President of the
Company, on the first of every month, detailing the technological progress of
the Company's research and development activities.
Financial duties shall include:
i) overseeing the Company's applications
("Applications") for government grants and loans;
ii) submitting and representing the Company's
applications to the following bodies for funding.
Office of the Chief Scientist
Ministry of Industry and Trade to obtain Approved
Enterprise status
3. Compensation
3.1 For services rendered hereunder, Consultant shall
be entitled as a consulting fee to $1,000 per month, payable in installments at
the end of each monthly period.
3.2 The Consultant shall be entitled as a finders fee
at $6,000 USD
3.3 The Company shall reimburse Consultant for all
actual costs and expenses incurred by Consultant in rendering the consulting
services.
3.4 Payment of consulting fees and reimbursable costs
and expenses shall be made only against delivery by Consultant to the Company of
requisite tax receipts or other appropriate documentation thereof
3.5 Translations to Israeli currency shall be
calculated on the basis of the representative rate of exchange published by a
daily newspaper in Israel on the date of payment.
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3.6 If as a result of any of the Applications the
Company receives funding subject to the usual conditions, from a combination of
any Applications which Consultant prepared and filed, within any 12 month period
in the aggregate amount of at least:
i) $100,000, then the Consultant shall be paid
$6,000.
3.7 Consultant (or entities consultant shall name)
shall be issued 5% of the common shares of the company's parent corporation,
Ambient Corporation, a Delaware corporation. The Consultant shall be obligated
to obtain any governmental approvals necessary for issuing it such shares.
Shares to be distributed to Consultant (or entities Consultant shall name) upon
the signing of this Agreement.
4. Term & Termination
4.1 This Agreement shall commence on the date on which
it shall have been duly executed by both of the parties hereto and continue for
a period six months hereafter.
4.2 This Agreement shall terminate without any further
action on the part of either party upon the occurrence of any of the following
(hereafter, each being a "Termination Event"):
i) the failure of Consultant for whatever reason to
submit any of the applications in accordance with section 2 hereof.
ii) the commencement of an IPO by Ambient Corporation
or any affiliates thereof.
iii) the failure of the Consultant to fulfill his
obligations as set forth in section 2 of this Agreement.
iv) for justifiable cause (as hereinafter defined) as
determined by the Board of Directors of the Company.
4.2.1 The term "justifiable cause" shall mean
i) a serious breach of trust including but not limited to theft, embezzlement,
self-dealing, prohibited disclosure to unauthorized persons or entities of a
confidential or proprietary information of or relating to the Company and
engaging by Consultant in any prohibited business competitive to the business of
the Company and its subsidiaries or affiliated entities; or ii) any willful
failure to perform competently any of the Consultant's functions or duties
hereunder or other cause justifying termination or dismissal under applicable
law.
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4.3 Either party shall be entitled to terminate this
Agreement upon breach of a material term thereof from the other party, upon
receipt by the breaching party of written notice thereof from the other party,
upon receipt by the breaching party of written notice from the other party,
specifying in reasonable detail the basis of the breach within 15 days of notice
from the other, then the Agreement shall continue in full force and effect.
4.4 Either party may terminate this Agreement
forthwith, by notice, if the other is declared insolvent or bankrupt, or makes
an assignment for the benefit of creditors, or shall have a receiver or trustee
appointed for its business or property or is dissolved or liquidated or
otherwise ceases business, and such declaration or execution, or appointment is
not canceled within forty five (45) days.
4.5 Upon the occurrence of Termination Event, or upon
either party's termination of the Agreement in accordance with subparagraphs
4.2, 4.3 and 4.4 above, Consultant shall retain its shares in Ambient
Corporation.
4.6 Upon the termination, cancellation or expiration of
this Agreement, neither party shall be responsible or liable to the other for
consequential or incidental damages of any kind, provide, that, consultant shall
subsequently be paid any sums which would have been paid to Consultant under
section 3.5 as if this Agreement remained in force for an additional one year
period.
5. Non-competition
5.1 Consultant agrees and undertakes that for so long
as this Agreement is in effect and for a one (1) year period following
termination or expiration of this Agreement with the Company for whatever
reason, directly or indirectly as owner, partner, joint venture, stockholder,
employee, broker, agent, principal, trustee, corporate officer, director,
licenser, Consultant in any capacity whatsoever shall not engage in, become
financially interested in, be employed by or have any connections with, any
business or venture that is engaged in any activities or venture that is engaged
in any activities involving either (i) products similar or related to actual
products then designed or produced by the Company or any of its subsidiaries or
affiliates; or (ii) information, processes, technology or equipment that is
similar or related to information, processes, technology or equipment in which
the Company or any the subsidiaries or affiliates then has a proprietary
interest in any geographic area where, during the time of engagement, such
business of the Company or any of its' subsidiaries or any of its affiliates
being or had been conducted; provided, however, that Consultant may own any
securities of any corporation which is engaged in any business and is publicly
owned and traded but in an amount not to exceed at any one time five percent of
any class of stock or securities of such company, so long as it has no active
role in the publicly owned or traded company as director, employee, consultant
or otherwise.
5.2 If any one or more terms contained in this
paragraph 5 shall for any reason be held to be excessively broad with regard to
time, geographic scope or activity,
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the term shall be construed in a manner to enable it to be enforced to the
extent compatible with applicable law.
6. Proprietary Information
6.1 Consultant acknowledges and agrees that the Company
possesses and will continue to possess information and technology that has been
created, discovered or developed, or has otherwise become known to the Company
in the field of Smart Card technology, including without limitation,
information, and technology which has been assigned or otherwise conveyed to the
Company, which information or technology has commercial value in the business in
which the Company is engaged. Such information, whether documentary, oral or
computer generated, shall be deemed to be and is referred to as "proprietary
information", which by way of illustration but not limitation, shall include
trade secrets, processes, formulae, data and know-how, improvements, inventions,
techniques, products (actual or planned), marketing plan forecasts and customer
lists.
6.2 Proprietary information deemed to include any and
all proprietary information disclosed by or on behalf of the Company,
irrespective of from what source, excluding information that (i) shall have
become a part of the public knowledge not as a result of the breach of this
Agreement by Consultant; (ii) shall have been received by Consultant from a
third party having no obligation to the Company; (iii) reflects general skills
and experience gained during Consultant's engagement by the Company; or (iv)
reflects data and information generally known within the industries or trades in
which the Company competes.
6.3 Consultant agrees that all proprietary information,
patents and other rights in connection therewith shall be the sole property of
the Company and its' assignees at all times, both during the engagement by the
Company and after its' termination. Consultant shall keep in confidence and
trust all proprietary information or anything relating to it without the written
consent of the Company except as may be necessary in the ordinary course of
performing Consultant's duties as Consultant to the Company.
6.4 Consultant's undertakings under this section shall
remain in full force and effect for two (2) years following the termination of
this Agreement or any renewal thereof.
7. Warranty. Consultant represents and warrants that on date
hereof it is free to be engaged by the Company upon the terms contained in this
Agreement and that there are no agreements or arrangements restricting full
performance of Consultant's duties hereunder. The Company represents and
warrants that it is free to engage the Consultant upon the terms contained in
this Agreement and there are no agreements or arrangements restricting full
performance of the Company's duties hereunder. Ambient Corporation represents
and warrants that it is free to enter into this Agreement and that there are no
agreements restricting full performance of Ambient's duties hereunder.
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8. Forced Transfer of Shares. In the event of Ambient
Corporation, or a wholly owned subsidiary thereof, shall undertake an initial
public offering of its equity shares to the public on a recognized stock
exchange (the "IPO"), then, prior to the consummation of the IPO, the shares of
Ambient Corporation held by Consultant shall be exchanged for the market value
equivalent of shares of the entity for which the IPO is undertaken whereupon
this Agreement shall automatically terminate, and Consultant shall take all
actions and sign any instrument reasonably requested to by Ambient Corporation,
Inc. in order to effect such the IPO share exchange.
9. Force Majeure
9.1 No liability shall result to any Party due to delay
in performance caused by circumstances beyond the reasonable control of the
party affected, including, but not limited to acts of God, flood, war,
terrorism, embargo, accident, and governmental laws, or request, or any ruling
of a court or tribunal;
9.2 Each party affected by an event of force majeure
shall (a) promptly notify the other party hereto of the expected duration
thereof, and its anticipated effect on the Party effected in terms of the
performance required hereunder; and (b) make reasonable efforts to remedy any
such event of force majeure. Performance that is delayed by any event of force
majeure shall be extended for such time as the event shall continue.
10. General Provisions
10.1 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 representative.
10.2 No failure, delay or forbearance by a party in
exercising any power or right hereunder shall in any way restrict or diminish
such party's rights and powers under this Agreement, or operate as a waiver of
any breach or non-performance by either party of any of the terms or conditions
hereof.
10.3 If any term or provision of this Agreement shall be
declared invalid, illegal or unenforceable, then such term or provision shall be
enforceable to the extent that a court shall deem it reasonable to enforce such
term or provision and if such term or provision shall be unenforceable, such
term or provision shall be severed and all remaining terms and provisions shall
be unaffected and shall continue in full force and effect.
10.4 The terms and conditions of this Agreement
supersede those of all previous agreements and arrangements, either written or
oral between the Company and Consultant relating to the subject thereof.
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10.5 Consultant acknowledges and agrees that he is an
independent contractor, is not the agent of the Company and has not authority in
such capacity to bind or commit the Company by or to any contract or otherwise.
Consultant is not, expressly or by implication, an employee of the Company for
any purpose whatsoever.
10.6 This Agreement is Personal to Consultant, and
Consultant shall not assign or delegate its rights or duties to a third party,
whether by contract, will or operation of law, without the Company's prior
written consent.
10.7 Each notice and/or demand given by one party
pursuant to this Agreement shall be given in writing and shall be sent by
registered mail to the other party at its designated address and such notice
and/or demand shall be deemed given at the expiration of seven (7) days from the
date of mailing by registered mail or immediately if delivered by hand. Delivery
by facsimile and other electronic communication shall be sufficient and be
deemed to have occurred upon electronic confirmation of the receipt.
10.8 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
By: /s/ Xxxxx Xxxxxxxx
_______________________________________
Xxxxx Xxxxxxxx
TEKOL LTD.
By: /s/ Yuli Kasharovsky
_______________________________________
Xxxx Xxxxxxxxxxx
November 26, 1996
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