Exhibit 10.18
SHAREHOLDERS AGREEMENT
This SHAREHOLDERS AGREEMENT is made this 31st day of December, 1999 by and
between ▇▇▇▇▇▇▇ ▇▇▇▇▇, Israel Identity # 3 1788407 0 ("▇▇▇▇▇▇"), Ambient
Corporation, a Delaware company ("Ambient").
W I T N E S S E T H
WHEREAS, ▇▇▇▇▇▇ and Ambient intend to form a private company under the
laws of the State of Israel (the "Company"; each of ▇▇▇▇▇▇ and Ambient, in their
capacity as shareholders of the Company, shall be referred to as a "Shareholder"
and together as "Shareholders")) for the purpose of developing, marketing and
selling screen phone technology (the "Company Business");
WHEREAS, the Shareholders have agreed to enter into this Agreement for the
purpose of setting forth their respective rights and obligations in relation to
the development and operation of said Company, with the intent that their
relationship and involvement as aforesaid be governed by the terms and
conditions herein contained.
NOW, THEREFORE, in consideration of the mutual promises contained herein and for
other good and valuable consideration the receipt of which is hereby
acknowledged, the parties hereto agree as follows.
1. Formation of Company; Share Ownership; Division of Profits and Losses
1.1 Formation of the Company. The Shareholders shall take all action
necessary or desirable to form, organize and establish a private company under
the laws of the State of Israel with such name as shall be approved by the
Shareholders. Following establishment of the Company, the parties shall cause
the Company to formally adopt and ratify the terms contained in this Agreement
applicable to it.
1.2 Business. The sole business in which the Company shall be authorized
to engage in shall be the Company Business. Attached hereto as Appendix I for
reference purposes only is a preliminary business plan of the Company. However,
the Parties agree that the contents of the same are not binding on the Parties
or the Company.
1.3 Articles & Memorandum. The Articles of Association and Memorandum of
the Company, shall be in such form and substance as are attached hereto,
respectively, as Appendix II (hereinafter, "Articles of Association") and
Appendix III.
1.4 Share Issuances; Option. (i) The Company shall issue [initially] only
one class of ordinary share of capital stock. The initial authorized share
capital of the Company shall be comprised of 38,000 NIS divided into 380,000
Ordinary Shares, each with a nominal value of 0.1 NIS (the "Ordinary Shares").
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(ii) The parties agree that following the formation of the Company, the
Company shall immediately issue to ▇▇▇▇▇▇ and Ambient, respectively, 60% and
40%, of the outstanding share capital of the Company and such shares shall be
registered as fully paid (each such Shareholder's interest shall be referred to
as its "Proportionate Share").
(iii) Option. Subject to the terms and conditions of this Agreement,
Ambient shall be entitled, but not obligated, to purchase up to 10% of the
Company's share capital, on a fully diluted basis, on one or more occasions,
until the second anniversary of the execution of this Agreement, upon the
payment of $250,000 to the Company, and the Company agrees to sell and issue to
Ambient upon the exercise of its right hereunder such shares. Such right
designated herein shall be referred to as the "Investment Option".
1.6 Profits. Profits to be derived from, or incurred as a result of the
Company Business, shall be divisible between the Shareholders in accordance with
their respective Proportionate Share in the Company.
1.7 Use of Proceeds of Business. All proceeds of revenues and other income
from the Company's activities shall be used in the following order of priority:
(i) payment of outstanding taxes (municipal and otherwise);
(ii) payment of employee salaries and other required payments, other than
those owing to any of the parties;
(iii) payment of amounts owed to suppliers and banks;
(iv) allocation of dividends; and
(v) any other use authorized by the Company's board of Directors.
1.8 Financing Subject to the provisions contained herein, Ambient shall
pay (by way of equity investment) to the Company up to $1,000,000 U.S. dollars
to meet the financing needs of the Company in accordance with a budget(s)
adopted by the Board of Directors of the Company from time to time. Ambient
shall not be issued any additional shares or securities of any kind for such
payments.
2. Administration
2.1 Board of Directors. The overall management and control of affairs of
the Company shall be managed by its board of directors (the "Board"), which
shall be comprised of two members. Ambient shall be entitled to designate one
member and ▇▇▇▇▇▇ shall be appointed as a member of the Board.
2.2 Officers of the Company. The following individuals shall be appointed
to serve as officers of the Company as designated below:
to be appointed Chairman of the Board
by Ambient
▇▇▇▇▇▇ Chief Executive Officer/General Manager
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2.3 Day to Day Management. Day to day Management of the Company shall be
carried out in accordance with policies and procedures duly adopted by the
Board.
2.4 Major Decisions. The parties agree that the Company shall not take any
of the following actions without obtaining the prior written consent of Ambient
or one of Ambient's directors:
(A) enter into any transaction with a Shareholder (or any principal,
employee or affiliate or subsidiary thereof or any other entity under
common control therewith) or a key employee, officer or director
including, without limitation, any modification in an agreement between
the Company and a shareholder, or any agreement among such parties or a
modification in the salary or terms of any director or officer of the
Company, and enter into any other type of transaction with any officer,
director, key employee or shareholder of the Company and the granting of
any bonuses to a shareholder;
(B) entry into any line of business, a change of its objectives, or a
reorganization of its operations, where such business, objectives or
operations do not form a part of the Company's current business,
objectives or operations;
(C) increase the number of shares that the Company may issue and/or create
a new class of equity and/or change the legal structure of the Company,
including but not limited to, any split or subdivision of stock, the
creation of new stock or separate classes of stock, the alteration of
rights associated with any security, or the issue of any debenture or loan
stock of the Company and any recapitalization or reduction in share
capital of the Company or making any changes in the authorized capital
stock of the Company, and/or any increase in the issued or outstanding
capital stock of the Company, issuance of any shares in the Company, the
issuance or authorization for issuance or sale of any of the Company's
capital stock or the issuance or authorization for issuance of any
options, warrants or rights to acquire any capital stock of the Company;
(D) declare a cash or share dividend;
(E) complete or contract to complete the merger, reorganization or
consolidation of the Company with or into any other entity;
(F) sell or purchase, or contract or agree to sell or purchase, or abandon
or remove, any of the Company's assets, in one transaction or a series of
transactions valued at over $25,000 in each year;
(G) make or effect any change in any accounting principles or practices of
the Company or the method in which the books and records of the Company
are maintained, except as required by law, regulation or professional
practice, or the appointment to serve as the Company's auditors any person
or entity that is not affiliated with one of the "top 6" nationally
recognized accounting firms in the United States;
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(H) enter into any transaction out of the Company's ordinary course of
business;
(I) cease operations and/or voluntarily winding up business;
(J) borrow or encumber its assets or grant any loan other than a loan to
employee of the Company or any of its subsidiaries;
(K) change the number of the members of the Board of Directors;
(L) form or acquire any subsidiary or enter into of any partnership;
(M) amend the incorporation documents;
(N) terminate or retain the services of any senior employee;
(O) change the Company's accountants or legal advisors; or
(P) determine the duties of members of the board of directors, their
manner of appointment and termination.
2.5 Bank Accounts. The Company shall maintain a bank account with such
other bank or banks or trust companies as the Board shall from time to time
agree upon for purposes of banking transactions of the Company required pursuant
to this Agreement. Any bank account of the Company shall be in the name of the
Company. All advances made pursuant to this Agreement or by third-party lenders
shall, in the first instance, be paid into a bank account of the Company, and
all other monies received from time to time on account shall be paid immediately
into the said bank account for the time being in operation in the same drafts,
checks, bills or cash in which they are received and all disbursements on
account of the Company shall be made by cheque on such account or accounts. Any
disbursements or obligations to be incurred on account of the Company under
$5000 may be approved or signed by ▇▇▇▇▇▇ alone and over such sum by the
approval or signatures of ▇▇▇▇▇▇ and an Ambient appointee jointly.
2.6 Books & Records. Proper books of accounts with respect to the Company
shall be kept and maintained by the Company at its offices, or by such other
person as the Shareholders may direct or designate in writing and entries shall
be made therein of all such matters, terms, transactions, and things as are
usually written and entered into books of account kept by others engaged in an
enterprise of a similar nature, and each of the parties hereto shall have free
access at all times to inspect, examine and copy them, and shall at all times
furnish to the others correct information, accounts and statements of and
concerning all such transactions without any concealment or suppression.
2.7 Financial Statements. The parties further covenant and agree to
initially retain ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., as its auditors, to review
quarterly or semi-annual and audit annual statements, which statements shall, in
each case, show in reasonable detail the aggregate of all receipts and expenses
and other financial transactions in any way concerning the Company, all in
accordance with generally accepted accounting principles consistently applied
("Financial
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Statements"). For purposes of preparing the Financial Statements, the
accountants shall have access to all books, records, checks, papers and
documents relating to the Company.
2.7.1 Quarterly Financial Statements shall be prepared and completed
within 30 days of the end of each calendar quarter and annual Financial
statements shall be prepared and completed within 45 days following the end of
each calendar year. All Financial Statements and copies thereof shall be
forthwith delivered to each Shareholder upon completion.
2.8 Legal Representation It is agreed by and among the Shareholders that
the law firm of Aboudi & ▇▇▇▇▇▇▇▇▇▇ shall initially be retained as legal counsel
to the Company for all matters other than patents.
3. Non-Competition
3.1 Non-Competition. Each of the Shareholders (each of whom in this sub
section is called a 'covenantor') covenants with each of the others and
separately with the Company (whether alone or jointly with any other person,
firm or company, and whether directly or indirectly, and whether as shareholder,
participator, partner , promoter, director, officer, agent, manager, employee or
consultant of, in or to any other person, firm or company except as a holder of
not more than 5% of shares of a publicly traded company) that it shall not (and,
where the covenantor is a company, will procure that non of its officers or
directors shall) at any time while the covenantor is the holder of any shares in
the Company and for a period of one year after the date on which the covenantor
ceases to be a shareholder in the Company (the "Relevant Period"):
(a) compete directly or indirectly with any business (including any
business then under development) of the Company as carried on during
the Relevant Period in any territory on which the Company carries on
such business or solicit or endeavor to entice away from or
discourage from dealing with the Company any person who was at any
time during the Relevant Period a manufacturer or a supplier,
customer or client of the Company;
(b) solicit or endeavor to entice away from or discourage from being
employed by the Company any person who was at the Relevant Period an
officer or employee of the Company whether or not such person would
commit a breach of contract by reason of leaving service;
(c) employ or engage or attempt to employ or engage or negotiate or
arrange the employment or engagement by any other person, firm or
company of any person who was at the Relevant Period an officer or
employee of the Company;
3.2 Each of sub sections (a) to (c) of clause 3.1 shall be deemed to
constitute a separate agreement and shall be construed independently of the
others;
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3.3 The restrictions contained in section 3.1 are considered reasonable by
the parties but in the event any such restriction shall be found void but would
be valid if some part thereof were deleted or the period or area of application
reduced such restriction shall apply with such modification as may be necessary
to make it valid and effective.
4. Transfer of Interest
4.1 Restrictions on Transfer. No Shareholder shall assign, transfer or
otherwise dispose of all or any part of its shares to any other person, firm or
corporation unless such Shareholder complies with the provisions of this Section
4, or unless otherwise specifically provided for in this Agreement.
4.2 All or a portion of the Proportionate Share of a Shareholder in the
Company may be transferred, assigned or granted to:
(i) any corporation or firm which is an affiliate of, or acts directly
or indirectly as a nominee for such Shareholder; or
(ii) any successor to such Shareholder by reason of death, disability,
merger, consolidation, amalgamation or acquisition of all, or
substantially all, of its assets provided that the Shareholder
controls at least 50% of the voting rights attached to all issued
and outstanding shares in the capital of such transferee.
(the above transferees shall collectively be referred to as "Permitted
Transferees")
For the purposes of this Section 4.2, an affiliated corporation means any
corporation which directly or indirectly, is effectively controlled by or
effectively controls a Founder. Effective control means control at least 50% of
the voting rights attached to all issued and outstanding shares in the capital
of such corporation.
Furthermore, ▇▇▇▇▇▇ shall be entitled to transfer part of his
Proportionate Share within the first year of this Agreement without being
subject to the Right of First Refusal below, but subject to the approval of
Ambient which shall not be unreasonably withheld, to third parties whom are
reasonably required to assist the Company in successfully achieving the Company
Business.
The other Shareholder hereby consents to any such grant, transfer or
assignment and agree to execute any documents or assurances that may be
necessary to give effect to such transfer, assignment or grant.
4.3 Right of First Refusal. Subject to section 4.2, a Shareholder in the
company shall not be permitted, without prior and written permission of the
other Shareholder, to transfer to another his shares in the company except
pursuant to the following provisions:
(a) A Shareholder desirous of transferring to others the shares held by
him, in whole or in part (hereinafter the "transferor") shall be obligated to
offer them first to
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the other Shareholders of the company, by giving notice in writing to the
Shareholders (hereinafter the "sale notice").
(b) In the sale notice the transferor shall mention the number of shares
he wishes to transfer (hereinafter the "offered shares"), the price forming the
consideration for the offered shares, the name of the offeror (if known at such
time) and the other conditions of the sale.
(c) The sale notice shall be irrevocable.
(d) Each one of the shareholders may inform the transferor in writing
within 10 days from the day of receipt of the sale notice as to his desire to
buy the offered shares,, in the price and payment conditions as provided for in
the sale notice (hereinafter the "purchase notice"). A shareholder who has
submitted a purchase notice shall be referred to hereinafter as "buyer".
(e) Each shareholder shall also have the right of over-allotment such that
if any other shareholder fails to exercise its right to purchase its
proportionate share of such offered shares, each other shareholder may purchase,
on a pro-rata basis, the portion(s) allocable to the non-purchasing
shareholder(s). In the event that any shareholder shall have failed to exercise
its right thereunder by the expiration of the time specified, then, on the
expiration of such time, the transferor shall give each shareholder who has
submitted a purchase notice ("participating buyer") a written notice stating the
amount of shares with respect to which no purchase notice was submitted. Each
participating buyer shall have three (3) days from the date of delivery of such
notice to exercise its right of over-allotment. The process described herein
shall be repeated until (i) purchase notices equal to the abatable amount are
made by participating buyers or (ii) no participating buyer timely exercises its
right of over-allotment.
(f) If there have been received purchase notices for a total number of
shares equal to the number of offered shares, in that case every buyer shall buy
the number of shares as mentioned in the purchase notice he has submitted.
(g) If by the end of the time referred to in sub-Section (d) and (e) above
no purchase notices have been received by the transferor or purchase notices for
a total number of shares less than the number of offered shares the transferor
may, within 60 days from expiration of the time for submission of purchase
notices, sell all the offered shares, at a price not less than the price
mentioned in the sale notice and upon all other conditions not less favorable to
the transferor than those provided for in the sale notice. If the transferor
shall not transfer the offered shares as aforesaid, within the aforesaid 60
days, he shall be obligated, before selling the offered shares to another, to
offer them again to the other shareholders in the company in accordance with the
aforesaid procedure, and such procedure shall apply to any further offer.
(h) If purchase notices shall have been received for a total number of
shares greater than the number of offered shares, the buyers may acquire shares
in a manner proportionate to the share capital of the company held by them at
that time. However, no buyer shall be required to buy a greater number of shares
than the number provided for in the purchase notice submitted by him.
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(i) In every one of the events referred to in sub Sections (f), (g) and
(h), the transferor shall send within 3 days after the last date for submission
of purchase notices to each of the buyers, a notice accompanied by copies of all
purchase notices received by the transferor of either non-acceptance of the
offer pursuant to the sale notice or the acceptance thereof (hereinafter the
"acquisition notice") that shall mention the number of shares that shall be
acquired by each buyer.
(j) After receipt of the acquisition notice each buyer shall purchase from
the transferor, and the transferor shall sell and transfer to such buyer the
number of shares referred to in such notice according to the terms of the sale
notice. Upon transfer to the buyers such shares must be free and clear of any
liens or encumbrances unless otherwise specified in the he sale notice. The
transferor and such buyer shall each have all the remedies for breach of
contract available under any applicable laws in connection with the transaction
set forth in this Section.
4.4 Assumption of Obligation by Transferee It is agreed by and between the
Shareholders that it shall be a condition precedent to the right of any
transferee (who is not a party to this Agreement) of any shares in the Company
pursuant to any of the provisions of this Agreement who receives title to such
share, that such transferee shall execute and deliver an appropriate instrument
in writing in favor of the remaining parties whereby such transferee shall agree
to observe and be bound by all the provisions contained in this Agreement.
5. Employment Agreements The parties acknowledge and agree that upon its
formation, the Company will enter into the "Employment Agreement" with ▇▇▇▇▇▇ in
the form attached hereto as Exhibit IV. In the event that Ambient to terminate
the activities of the Company prior to the January 31, 2001, Ambient or one of
its affiliates shall offer to ▇▇▇▇▇▇ employment as a senior officer with equal
compensationprovisions as contained in the Employment Agreement and the
Employment Agreement shall be automatically terminated under Section 2.1(v)
thereof.
6. First Right of Refusal
Ambient shall have the right of first refusal to obtain from third parties
or provide from its own capital any future financing whereby the Company is
offering, directly or indirectly, any securities of the Company or its
subsidiary or parent.
7. Confidentiality.
Each Shareholder agrees that any information obtained from or on behalf of
the company will be used solely for the purpose of monitoring its investment in
the Company and will not be used for any other purpose or disclosed to any
person without the prior written consent of the Company unless it is required by
law or stock exchange rule to include financial information obtained pursuant to
this Agreement in reports to government authorities or stock exchanges, in which
case such Shareholder shall be entitled to make such disclosure as required;
provided, that in connection to periodic reports to their shareholders or
partners, the Shareholders may, without first obtaining the prior written
consent of the Company, make general statements, not
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containing technical information or confidential intellectual property,
regarding the general nature of the Company, and may provide summary and general
information regarding the Company's revenues and profits to their lawyers and
consultants, and in their reports to their shareholders and partners, but may
not annex to such reports the full financial information to be provided by the
Company hereunder. Confidential information as referred to in this section shall
not include information (i) which or becomes public knowledge through no fault
of the Shareholder; or (ii) which is known to the Shareholder at the time of
disclosure by the disclosing party, as evidenced by the Shareholder's written
records; or (iii) which is disclosed to the Shareholder on a non-confidential
basis by a third party having no obligation of secrecy to the Company.
8. Miscellaneous
8.1 Operations Subject to Agreement and Articles of the Company. The
parties agree that the operation, ownership and management of the Company and
their respective rights, powers and obligations shall be governed by this
Agreement, the Articles of Incorporation and the Memorandum of the Company. In
the event of conflict between this Agreement and any other document attached
hereto, including the Articles of Incorporation and the Memorandum of the
Company, the terms and provisions of this Agreement shall prevail.
8.2 Non-Agency, etc. Except to the extent only as may herein be expressly
provided, no party shall (whether by reason of any provision herein contained or
otherwise) be deemed to be the partner, agent or legal representative of the
other parties, whether for the purpose of this Agreement, the Company or
otherwise, nor shall any party have, nor represent itself to have, any authority
or power to act for, or to undertake any obligations or responsibility on behalf
of the other party, unless expressly provided herein.
8.3 Notices. All notices, requests, demands or other communications by the
terms hereof required or permitted to be given by any party hereto to another
shall, unless otherwise specifically provided for herein, be given in writing
and be personally served or posted by registered mail, postage prepaid,
addressed to such other party or delivered to such other party at the addresses
noted above, or may be served by fax.
Any notice, request, demand or other communication given by mail as
aforesaid shall be deemed to have been received - on the fourth business day if
mailed to an address in the country of posting and on the twenty first business
day if mailed to an address outside the country of posting- following the
posting thereof (except during times of publicized disruption in normal postal
service in which case such notice, request, demand or other communication shall
be deemed to have been received only upon actual receipt thereof) or where such
notice is personally delivered it shall be deemed to have been received on the
date of such delivery or if delivered by fax upon confirmation by receiving
party of receipt thereof.
8.4 No Pledging, etc., of Proportionate Shares. Each of the Shareholders
hereby covenants and agrees that, except as in this Agreement expressly provided
or permitted, it will not in any manner or degree whatsoever pledge, charge,
mortgage,
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hypothecate or otherwise encumber its respective Proportionate Share in the
Company; provided that nothing herein contained shall prevent any of the
Shareholders from granting a floating charge upon its Proportionate Share to any
bank or financial institution as part of such Shareholder's general financing so
long as such charge specifically provides as follows, namely:
(a) that in the event of the realization of any such Proportionate Share
by whatever process pursued by the secured party, the purchaser or
successor thereto shall be obliged to comply with the provisions of
this Agreement; and
(b) for the entire release and discharge of such charge upon demand in
order to permit any sale or adjustment of interests pursuant to
Section 4 hereof.
8.5 Assurances The parties hereto and all of them hereby covenant and
agree to do such things, to attend such meetings and to execute such further
documents, agreements and assurances as may be deemed necessary or advisable
from time to time in order to carry out the terms and conditions of this
Agreement in accordance with their intent.
8.6 Headings. The division of this Agreement into Articles and Sections
and the headings thereof are for convenience of reference only and shall not
affect the construction or interpretation of this Agreement, nor be relied upon
to construe the intention of any of the parties hereto.
8.7 Enurement This Agreement shall be binding upon and enure to the
benefit of the parties hereto and their respective successors and assigns.
8.8 Number and Gender. This Agreement shall be read and construed as the
number and gender of the party or parties referred to in each case requires and
as may otherwise be required by the context.
8.9 Loss of Privileges In the event that a Shareholder is in default, as
determined by a court of law, of any terms of this Agreement, such Shareholder,
during the period of such default, shall not have any right to vote, sign
documentation, receive notice of or attend at any meeting or generally
participate in the decision making process of the Company. Furthermore, each
Shareholder agrees to appoint ▇▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇ Trustees Ltd. as its attorney
to execute any and all documentation which would otherwise be required to be
signed by such Shareholder, during the period of such default.
8.10 Termination. The termination of this Agreement however caused and the
ceasing by any shareholder to hold any shares shall be without prejudice to any
obligations or rights of any of the parties hereto which have accrued prior to
any such termination or cessation and shall not affect any provision of this
Agreement which is expressly or by implication provided to come into effect on
or to continue in effect after such termination or cessation.
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8.11 Conflicting Agreements Neither the execution nor the delivery of this
Agreement nor the fulfillment nor the compliance with the terms and conditions
hereof will constitute a breach of the terms, conditions or provisions of, or
constitute a default under or result in a violation of any agreement, contract,
instrument, order, judgment or decree to which any Shareholder is a party or by
which it is bound, or result in a violation by any Shareholder of any existing
law or statute or regulation.
8.12 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.
8.15 Jurisdiction. This Agreement , its validity, construction and effect
shall be governed by and construed under the laws of the State of Israel.
IN WITNESS WHEREOF the parties hereto have fixed their signatures as of
the day and year first above typewritten.
Ambient Corporation
S/M. Braunold
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Name:
Title:
S/ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇
Company
S/M. Braunold
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By:
Title: