<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) May 20, 1998
AMBIENT CORPORATION
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Delaware 0-23723 98-0166007
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
</TABLE>
270 Madison Avenue, New York, New York 10016
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(Address of principal executive offices, including zip code)
Registrant's telephone number, including area code (888) 861-0205
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(Former name or former address, if changed since last report)
Page 1 of 5 total pages
(Exhibit index is found on page 5)
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ITEM 5. Other Events.
On May 20, 1998, Ambient Corporation (the "Company") entered into a
letter of intent with Ordacard Hi-Tec Industries (1995) Ltd., an Israeli
manufacturer of plastic ID and bank cards ("Ordacard"), relating to the proposed
merger of Ordacard with and into a wholly-owned subsidiary of the Company to be
formed under the laws of the state of Israel (the "Proposed Merger"). The
Proposed Merger is expected to close on December 31, 1998 and is subject to
certain closing conditions, including but not limited to the receipt of various
government approvals required under Israeli law and the consummation by the
Company of a private or public offering of equity securities in the net amount
of $7.5 million. In consideration for the Proposed Merger, the Company will
issue to Ordacard's shareholders, in proportion to their holdings therein,
shares of common stock of the Company equal to 50% of the Company's outstanding
common stock after giving effect to the proposed equity offering. Upon the
closing of the Proposed Merger, Jacob Davidson, the Company's current Chairman
of the Board, Chief Executive Officer and President, will resign as Chief
Executive Officer and President, but will retain his position as Chairman of the
Board, and Elie Garber, the current President of Ordacard, will assume the
position of President of the combined companies. On the closing date of the
Proposed Merger, the Board of Directors of the combined companies will consist
of 10 members, five of whom shall be designees of the current Ordacard
shareholders.
In connection with the Proposed Merger, the Company agreed to loan to
Ordacard the principal amount of $1,000,000. Of this amount, the Company
delivered to Ordacard $350,000 on the date of the execution of the letter of
intent in return for Ordacard's subordinated, convertible promissory note in the
principal sum of $350,000, bearing interest at 6% per annum (the "First Note").
The Company agreed to deliver the remaining $650,000 by July 1, 1998 in return
for a substantially similar Ordacard note. Each of the notes will be due on
March 31, 1999 (the "Maturity Date"), provided however, that if the Company does
not deliver to Ordacard $650,000 by July 1, 1998, Ordacard may, at its option,
convert the outstanding balance of the First Note into 14,510 common shares (or
approximately 3.6%) of Ordacard. If the Proposed Merger shall not have occurred
by December 31, 1998, the Company may, at its option, either accelerate payment
on the notes or convert the principal and accrued interest on the notes into
50,000 common shares (or 12.5%) of Ordacard, subject to adjustment pursuant to
certain provisions set forth in the notes. In the event that the Proposed Merger
is consummated, the newly formed Israeli subsidiary of the Company will assume
all of the obligations of Ordacard, including the notes.
Ordacard is a manufacturer of plastic ID and bank cards and provides
card services, including card personalization, mail distribution and point of
sale integration that supports magnetic stripe and smart card transactions, as
well as medical records retrieval for ID cards. Ordacard's technology is
supported by strategic relationships with its 25% parent, American Banknote
Corporation (NYSE:ABN), and with Indigo, Ltd. (NASDAQ:INDGF). Ordacard has 60
employees, including 10 engineers and programmers, and operates sales offices in
New York and Tel Aviv and has one sales agent in Jordan.
-2-
<PAGE>
<PAGE>
ITEM 7. Financial Statements and Exhibits.
(c) The following documents are filed herewith as exhibits to
this Form 8-K:
99.1 Letter of Intent dated May 20, 1998 between Ordacard
Hi-Tec Industries (1995) Ltd. and Ambient Corporation.
-3-
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this Current Report on Form 8-K to be signed on
its behalf by the undersigned hereunto duly authorized.
Dated: June 3, 1998 AMBIENT CORPORATION
By: /s/ Jacob Davidson
---------------------------------
Jacob Davidson
President and
Chief Executive Officer
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Exhibit Index
99.1 Letter of Intent dated May 20, 1998 between Ordacard
Hi-Tec Industries (1995) Ltd. and Ambient Corporation.
-5-
<PAGE>
<PAGE>
May 20, 1998
To Ordacard Hi-Tec Industries (1995) Ltd. and the Ordacard Shareholders
Listed on Exhibit A Attached Hereto
2 Alon Hatavor St. Industrial Park
P.O. Box 3005
Caesarea, Israel 38900
Dear Sirs:
This letter, when signed by Ordacard Hi-Tec Industries (1995)
Ltd., an Israeli corporation ("Ordacard"), and those persons set forth on
Exhibit A hereto (the "Ordacard Shareholders"), will confirm the recent
discussions between Ordacard and Ambient Corporation, a Delaware company
("Ambient"), relating to the proposed merger (the "Merger") of Ordacard into a
wholly-owned subsidiary of Ambient (the "Ambient Sub") to be formed in Israel
prior to the Final Closing (as defined herein). This letter embodies our
proposal for such Merger and outlines certain of the terms and conditions upon
which such transaction would be effected.
1. METHOD OF MERGER. The Merger will be structured as a statutory
merger, pursuant to Section 234 of the Israeli Companies Ordinance (New Version)
- - 1983 (the "ICO") and Sections 103 and 104 of the Israel Income Tax Ordinance
(the "Tax Law"), of Ordacard with and into Ambient Sub, such that Ambient Sub
will be the surviving corporation after the consummation of the Merger and
pursuant to which all of the assets and liabilities of Ordacard will be
transferred to Ambient Sub and Ordacard will be liquidated, subject to and in
accordance with all of the terms and conditions set forth herein.
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Ordacard Hi-Tec Industries, LOI
Page 2
2. CONSIDERATION. The issued and outstanding capital stock of
Ordacard, on a fully diluted basis as of the date hereof, consists of 400,000
ordinary shares, NIS 1 par value per share (the "Ordacard Stock"). The Ordacard
Stock is owned by the Ordacard Shareholders in the amounts set forth opposite
the name of each Ordacard Shareholder. On the Final Closing Date, as
consideration therefor, Ambient will issue to the Ordacard Shareholders, in
proportion to their holdings in Ordacard, that number of shares of Ambient's
common stock, par value $.001 per share (the "Common Stock") equal to 50% of
Ambient's issued and outstanding Common Stock, on a fully diluted basis, after
giving effect to the proposed Equity Financing (as hereinafter defined), but
without giving effect to the outstanding Ambient warrants for 52,500 shares as
of the date hereof and as disclosed in the Ambient prospectus dated February 12,
1998 (the "Ambient Acquired Shares") free and clear of any and all liens,
claims, charges and encumbrances whatsoever.
The Ambient Acquired Shares will be unregistered and the
certificates evidencing the same will each bear a legend to that effect. On the
Final Closing Date (as defined herein), the Company will enter into a
registration rights agreement with each Ordacard Shareholder granting one demand
and certain piggy-back registration rights to each such holder, subject, in all
cases, to reduction in the reasonable determination of the managing underwriter
of the underlying offering, provided any Ambient shareholders also exercising
registration rights shall be reduced on a pro-rata basis.
3. CERTAIN EMPLOYMENT ARRANGEMENTS; MANAGEMENT. (a) Upon the
Final Closing Date, Jacob Davidson will resign as President and Chief Executive
Officer (but will remain Chairman of the Board of Directors) and Elie Garber
("Garber") will be appointed either the President and Chief Executive Officer or
only the President of Ambient and its subsidiaries (which will then consist of
Ambient Ltd. (95% subsidiary) and Ambient Sub (with Ordacard merged with and
into it) pursuant to the terms of a two-year employment agreement to be
negotiated.
(b) Upon the Final Closing, the Ordacard Shareholders, Jacob
Davidson and Elie Wurtman and Ambient will enter into a shareholders' agreement
providing for certain customary rights and obligations, including the
determination of the Board of Directors, mutual agreements to vote for director
nominees and rights to examine the books and records of Ambient.
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Ordacard Hi-Tec Industries, LOI
Page 3
4. BOARD OF DIRECTORS. Ambient currently has two directors: Jacob
Davidson and Elie Wurtman. Ambient's bylaws provide for an initial Board of
three directors and that the number of directors shall be set from time to time
by the Board. Vacancies may be filled by a majority of existing directors. A
vacancy exists if the authorized number of directors is increased. On the Final
Closing Date, Ambient shall cause its directors to increase the authorized
number of directors to ten (10) and then fill five of the resulting vacancies
with five designees of certain of the Ordacard Shareholders as determined below,
effective on the Final Closing Date. Garber shall be entitled to designate two
directors and each of Messrs. Galil and Silver and USBC Capital Corporation
shall be entitled to designate one director. The designee of any of the above
Ordacard Shareholders who are individuals may be himself.
5. LOAN. (a) Subject to the provisions of this Section 5, Ambient
shall loan to Ordacard the principal sum of $1,000,000 (the "Loan"), $350,000 of
which shall be paid on the execution of this letter of intent and the remaining
$650,000 of which shall be paid on or before July 1, 1998. Payment shall be made
in readily available funds. The Loan will be evidenced by two convertible
promissory notes (the "Notes", and each individually shall be called a "Note")
secured by Ordacard's assets (including all real and personal property, cash,
cash equivalents and accounts receivable of Ordacard) (the "Collateral") and
subordinated to Ordacard's secured bank loans in existence on the date of the
Loan (the "Senior Bank Loans") in accordance with applicable law and the
provisions of any documents governing such Senior Bank Loans regarding
Ordacard's incurrence of additional junior debt. The Notes shall be
substantially identical, and in the form attached hereto as Exhibit B, except
that the first Note will be in the principal amount of $350,000 (the "First
Note") and the second Note will be in the principal amount of $650,000 (the
"Second Note"). The Notes shall bear interest at 6% per annum. If the Merger and
Equity Financing have not been consummated by December 31, 1998, then, on such
date, Ambient shall be entitled, at its option, to demand full payment of the
aggregate outstanding principal and accrued interest on the Notes through the
date of payment (which amount shall be due and payable within 90 days of such
demand), or convert at its sole option the aggregate outstanding principal and
interest into 50,000 shares of Ordacard. In the event of a material breach of
any representation, covenant or agreement set forth in this letter or a
Definitive Agreement (as defined below) by Ordacard, as the case may be, Ambient
shall be entitled to demand, on five days notice, full payment of the aggregate
outstanding principal and accrued interest on each of the Notes through the date
of payment.
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Ordacard Hi-Tec Industries, LOI
Page 4
If Ambient shall not have delivered the payment of $650,000 by
July 1, 1998, Ordacard shall be entitled within five days from such date, at its
option and on written notice to Ambient, to either (i) convert the outstanding
principal amount and accrued interest of the First Note into 14,510 shares of
Ordacard's capital stock, or (ii) pay to Ambient in readily available funds the
principal amount of $350,000 plus accrued interest through the date of payment.
(b) Ordacard and Elie Garber hereby represent and warrant
to Ambient that Ordacard has obtained from its lenders any and all consents or
other approvals, copies of which are attached hereto as Exhibit C, required
under the Senior Bank Loans in connection with the Loan and the execution and
delivery by Ordacard of the Notes.
(c) Ordacard and Elie Garber further represent and
warrant to Ambient that (i) the execution and delivery of each of the Notes will
not constitute a default under or conflict with any agreement or arrangement or
other instrument to which Ordacard or its Affiliates (as defined in Rule 12b-2
under the Securities Exchange Act of 1934) are bound; (ii) subject to subsection
(b) above, do not require the consent of any other individual or entity apart
from The Israel Investment Center; and (iii) will not violate any law, rule or
regulation by which Ordacard or any of its Affiliates is bound.
(d) Ambient and Jacob Davidson hereby represent and
warrant to Ordacard that Ambient has obtained from its lenders any and all
consents or other approvals, if any, required in connection with the Loan and
the receipt of the Notes.
(e) Ambient and Jacob Davidson further represent and
warrant to Ordacard that (i) the making of the Loan and the receipt of each of
the Notes will not constitute a default under or conflict with any agreement or
arrangement or other instrument to which Ambient or its Affiliates (as defined
in Rule 12b-2 under the Securities Exchange Act of 1934) are bound; (ii) subject
to subsection (c) above, do not require the consent of any other individual or
entity; and (iii) will not violate any law, rule or regulation by which Ambient
or any of its Affiliates is bound.
(f) Upon delivery of the payment of the principal amount
of each of the Notes to Ordacard, Ordacard shall deliver to Ambient an executed
Note and shall execute all such further documents and shall promptly take or
cause to be taken all such further actions necessary to perfect Ambient's
security interest in the Collateral, including filing all forms required
therefor by the State of Israel.
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Ordacard Hi-Tec Industries, LOI
Page 5
(g) From the date hereof through January 16, 1999,
Ordacard hereby agrees not to issue any additional shares of Ordacard, whether
by exercise of an option or otherwise, or any securities convertible into
Ordacard Stock, or subdivide or split or effect any recapitalization of Ordacard
Stock; Provided, however, that Ordacard shall be permitted to issue and sell to
any third party an aggregate of 50,000 shares of Ordacard stock for an aggregate
purchase price of not less than $1,000,000. Such sale shall not effect the
number of shares payable to Ambient pursuant to Section 5(a) above with respect
to the Notes.
(h) The Notes shall contain regular and customary
anti-dilution provisions.
6. REPRESENTATIONS AND WARRANTIES. The definitive Merger
agreement(s) (the "Definitive Agreements") will contain customary (a)
representations and warranties which shall be true and correct as of the date
thereof and as of the date of the Initial Closing (as defined herein) and Final
Closing and (b) covenants which shall be performed by the appropriate parties as
a condition to each of the Initial Closing and Final Closing of the Merger
including, without limitation, those referred to in this letter.
7. CONDUCT OF BUSINESS PENDING CLOSING. Between the date hereof
and the date of Final Closing or the earlier termination of this letter, each of
Ordacard and Ambient (including Ambient Ltd.) shall conduct its operations
according to its ordinary and usual course of business consistent with past
practice, shall not engage in any extraordinary transactions and shall use its
best efforts to preserve intact its business organization, to keep available the
services of its current officers and employees and to maintain satisfactory
relationships with customers and others having business relationships with it.
8. MUTUAL DUE DILIGENCE; CONFIDENTIALITY. (a) The Initial Closing
and Final Closing of the Merger are subject to the completion, on or prior to
the date of execution of the Definitive Agreements, of and Ambient's
satisfaction with a due diligence review of Ordacard's business, including its
financial condition and operations. Immediately after the execution and delivery
of this letter, Ordacard agrees to arrange for Ambient and its representatives
to have access to Ordacard's books and records (including copies of all material
contracts, budgets, projections, customer order books and supplier data)
employees, professional representatives (including counsel and accountants),
major creditors (including its existing lenders), customers and suppliers as
well as to such other information and other persons relating to Ordacard's
business as Ambient may reasonably request.
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Ordacard Hi-Tec Industries, LOI
Page 6
(b) Any information about Ordacard which Ambient obtains
or has obtained during its due diligence review other than information which is
generally available to the public or becomes generally available to the public
other than as a result of a breach of this subparagraph (b) is referred to
herein as the "Ordacard Information." Ambient agrees to use reasonable efforts
to keep confidential the Ordacard Information, except that Ambient can disclose
the Ordacard Information to its employees, agents, representatives, investment
bankers and professional advisors (including accountants and attorneys).
(c) The Initial Closing and Final Closing of the Merger
is also subject to the completion, on or prior to the date of execution of the
Definitive Agreements, of and Ordacard's satisfaction with a due diligence
review of Ambient's business, including its financial condition and operations.
Immediately after the execution and delivery of this letter, Ambient agrees to
arrange for Ordacard and its representatives to have access to Ambient's books
and records (including copies of all material contracts, budgets, projections,
customer order books and supplier data) employees, professional representatives
(including counsel and accountants), major creditors (including its existing
lenders) as well as such other information and other persons relating to
Ambient's business as Ordacard may reasonably request.
(d) Any information about Ambient which Ordacard obtains
or has obtained during its due diligence review other than information generally
available to the public or becomes generally available to the public other than
as a result of a breach of this subparagraph (d) is referred to herein as the
"Ambient Information." Ordacard agrees to use reasonable efforts to keep
confidential the Ambient Information, except that Ordacard can disclose the
Ambient Information to its employees, agents, representatives, and professional
advisors (including accountants and attorneys).
(e) In the event either Ambient or Ordacard or their
respective representatives is required by law to disclose any of the Ordacard
Information or the Ambient Information as applicable, it shall give prompt
written notice thereof to the other party and shall fully cooperate with the
other party should the other party wish to seek a protective order.
(f) If this letter is terminated or the Definitive
Agreements are terminated, each party agrees, upon written request from the
other, to return or destroy any information it may have received pursuant to the
provisions hereof as identified in the request.
(g) The parties acknowledge that neither would have an
adequate remedy at law in the event of a breach of the provisions of this
paragraph 8 and accordingly agree that each shall be entitled to an injunction
and specific performance without the necessity of posting and/or pricing special
damages or irreparable injury.
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Ordacard Hi-Tec Industries, LOI
Page 7
Upon the execution of this Letter, the parties agree to enter
into confidentiality agreements.
9. CONDITIONS TO TRANSACTION.
(a) INITIAL CLOSING CONDITIONS. The consummation of the
Initial Closing of the Merger is subject to the following additional terms and
conditions:
(i) The receipt of any necessary consents, waivers or
clearances from any governmental authorities, banks or any other third parties
to the contemplated transactions;
(ii) The approval of the Board of Directors of Ambient
and Ambient Sub and the approval of the shareholders of Ambient Sub;
(iii) The approval of the Board of Directors of
Ordacard and the shareholders of Ordacard;
(iv) There being no material adverse change in the
condition (financial or otherwise) of the business, assets, properties,
liabilities, prospects or results of operations of Ordacard or Ambient from that
reflected in their respective December 31, 1997 financial statements;
(v) The respective deliveries of audited financial
statements of Ordacard and Ambient, certified by an accounting firm satisfactory
to Ambient and Ordacard, respectively, covering the period required by
applicable rules adopted by the Securities and Exchange Commission;
(vi) The receipt by Ambient from each of the Ordacard
Shareholders of lock-up agreements with respect to the Ambient Acquired Shares
containing such terms as shall be required by the managing underwriter of the
Equity Financing; provided the Ordacard Shareholder's lock-up shall not be more
restrictive than the lock-up applicable to any Ambient shareholder who had not
acquired their shares in the initial public offering of Ambient. The lock-up
agreements will be effective as of the date of Final Closing;
(vii) The delivery of customary opinions of counsel
(which shall include, but not be limited to, an opinion from Israeli counsel
that the Israeli law and Tax Law permit Ordacard, an Israeli corporation, to
merge with and into Ambient Sub, an Israeli corporation, pursuant to Section 234
of the ICO);
(viii) Execution and delivery of mutually satisfactory
Definitive Agreements and related agreements;
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Ordacard Hi-Tec Industries, LOI
Page 8
(ix) The receipt by the Ambient, Ordacard and the
Ordacard Shareholders of a written opinion, to their satisfaction, that the
consummation of the Merger and the transactions contemplated herein, will not
result in adverse tax consequences to the Ordacard, Ambient, or Ambient Sub or
to any of their respective shareholders under applicable tax law;
(x) The receipt by Ordacard and Ambient of a
pre-ruling from the Israeli Income Tax Commission;
(xi) The receipt by Ordacard and Ambient Sub of a
court order from an Israeli court of competent jurisdiction required to
consummate the Merger; and
(xii) The receipt by Ambient and Ordacard of the
approval of the Restrictive Trade Practices Commission, pursuant to the
Restrictive Trade Practices Law (1988), to the extent applicable; and
(xiii) The Initial Closing shall occur not later than
November 1, 1998.
The date on which all of the above Initial Closing conditions have been
satisfied (or waived) is referred to herein as the "Initial Closing Date" or the
"Initial Closing."
(b) FINAL CLOSING CONDITIONS. The consummation of the Final
Closing of the Merger is further subject to the satisfaction or waiver of the
following additional terms and conditions:
(i) The consummation by Ambient of a private or public
offering of equity securities of Ambient resulting in minimum net proceeds,
after commissions and expenses, of $7.5 million (the "Equity Financing"), free
and clear of any lien, attachment, debt or encumbrance. For the removal of doubt
, it is hereby clarified that upon completion of the Merger, the Notes shall
become the liability of Ambient Sub and not of Ordacard. Ambient and Ordacard
shall discuss and incorporate in the Definitive Agreements the effect, if any,
an Equity Financing of more or less than $7.5 million net proceeds should have
upon the Merger and the Notes. Ordacard acknowledges and agrees that the
offering documents with respect to the Equity Financing (the "Offering
Documents") will disclose financial and other business information of Ambient on
a pro forma basis giving effect to the Merger. Ordacard agrees to provide
Ambient, at its own expense, with all financial information, contracts,
employee, customer, supplier and research and development data, and such other
information relating to Ordacard's business as Ambient or its counsel shall deem
relevant to the Offering Documents. Ordacard further acknowledges that the Final
Closing of the Merger will be a condition to the closing of the Equity
Financing,
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Ordacard Hi-Tec Industries, LOI
Page 9
(ii) There being no material adverse change in the
condition (financial or otherwise) of the business, assets, properties,
liabilities, prospects or results of operations of Ordacard or Ambient from that
reflected in their respective December 31, 1997 financial statements;
(iii) The delivery of audited financial statements of
Ordacard, certified by an accounting firm satisfactory to Ambient, covering the
period required by applicable rules adopted by the Securities and Exchange
Commission; and
(iv) The agreement of the Ordacard Shareholders, if
required by the Israeli Tax Commissioner or other appropriate taxing authority
in Israel, to deposit the Ambient Acquired Shares with a trustee appointed by
the Commissioner until certain taxes are paid.
The date on which all of the above Final Closing conditions have been satisfied
(or waived), which shall occur on December 31, 1998 and the closing of the
transactions contemplated in the Definitive Agreements, is referred to herein as
the "Final Closing Date" or the "Final Closing."
10. PUBLIC COMMUNICATIONS. Between the date hereof and the Final
Closing Date or the earlier termination of this letter, neither party nor their
respective agents, without the prior consent of the other, shall make any public
statement or announcement or any release to trade publications or through the
press or otherwise with respect to the proposed Merger, except as may be
necessary to comply with the requirements of any law, governmental order or
regulation, in which case, the provisions of paragraph 8(e) hereto shall apply.
The parties acknowledge that Ambient may make such public announcements and
filings with the U.S. Securities and Exchange Commission and other governmental
agencies as are required by law to reveal the existence of this letter, provided
that any such disclosure is first approved by Ordacard or its representatives.
The parties agree that in any such release or disclosure, the parties shall not
name or reference any Ordacard Shareholder without the written consent as to
such release and disclosure by such person or entity.
11. EXPENSES; FEES. All costs and expenses incurred in connection
with the transactions contemplated herein (including but not limited to expenses
and fees incurred by a party in the preparation of its audited financial
statements) shall be paid by the party incurring such costs and expenses.
12. EXCLUSIVITY. From the date hereof until August 1, 1998 or the
earlier termination of this letter, neither Ordacard nor any of the Ordacard
Shareholders, nor Ambient shall solicit or engage in any discussions with, or
enter into any agreement or understanding with any other person or entity (other
than Ambient) relating to the acquisition of the Ordacard Stock, or the
acquisition of Ordacard's business, the Ambient stock, the acquisition of the
Ambient business, or any business
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Ordacard Hi-Tec Industries, LOI
Page 10
combination or merger involving Ordacard or Ambient, other than as expressly
contemplated herein. If Ordacard or Ambient receive any proposal with respect to
same, it shall immediately upon the receipt thereof provide all relevant
particulars of such proposal to the other party, subject to paragraph 5(g).
13. TERMINATION. Subject to Section 15, this letter shall
terminate:
(a) by mutual written agreement;
(b) if mutually agreeable Definitive Agreements with respect
to the Merger shall not have been executed and delivered on or before August 1,
1998;
(c) on not less than five business days (the "Advance Notice
Period") prior written notice by either party at any time prior to the execution
of the Definitive Agreements if its ongoing due diligence investigation
discloses material adverse information concerning the other, or if it reasonably
determines that any of the conditions precedent outlined briefly above cannot be
met, as set forth in said notice, it being understood that during said Advance
Notice Period, the other party may meet the condition precedent or correct the
adverse changes described in the notice in which event the termination notice
shall be null and void;
(d) By either party as a result of a breach by the other of
paragraph 5, 8, 10 or 12 hereof; or
(e) Automatically upon the execution and delivery of
Definitive Agreements; or
(f) If the Equity Financing shall not close on or before
December 31, 1998.
14. GOVERNING LAW. This letter shall be governed by and construed
in accordance with the laws of the State of New York (without regard to the
conflict of laws provisions thereof). Any action or proceeding of whatsoever
kind or nature with respect to or arising out of this Note shall be instituted
and tried only in the federal or state courts located within the County and
State of New York, and each party hereto waives a jury trial and any right to
cause such action or proceeding to be instituted or tried elsewhere.
15. SCOPE OF LETTER. This letter constitutes a statement of the
mutual intentions of the parties with respect to the transactions described
herein, does not contain all matters upon which agreement must be reached in
order for such transactions to be consummated, and does not constitute a binding
commitment with respect to the proposed transactions. Notwithstanding the
foregoing, the provisions of paragraphs 5 and 8 through 14 are agreed to be
fully binding upon the parties upon the execution of this letter.
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Ordacard Hi-Tec Industries, LOI
Page 11
Upon termination of this letter as provided in paragraph 13 above, neither party
will have any obligation to the other relating to such termination unless the
termination arises from a breach of paragraphs 5 or 8 through 14 of this letter,
or the bad faith, willful misconduct or gross negligence of a party. The
provisions of Sections 5, 8(b), 8(d) through (g), 10, 11, and 14 shall survive
the expiration or termination of this Letter.
Please indicate your agreement and acceptance of the terms and
conditions of this letter by executing this letter in the space designated below
whereupon this letter shall constitute a letter of intent between the parties in
accordance with the terms and provisions set forth above.
Very truly yours,
AMBIENT CORPORATION
By: /s/ Jacob Davidson
-----------------------------
Jacob Davidson, President
AGREED AND ACCEPTED:
USBC Capital Corporation
Ordacard Hi-Tec Industries (1995) Ltd.
By: By:_______________________________
Name: E. Garber D. Naveh Name:
-----------------------------
Title: Title:
---------------------------- -----------------------
/s/ Elie Garber
- ------------------------ ----------------------------------
Elie Garber Lily Silver
- ------------------------ ----------------------------------
Amir Galil Paul Kittay
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Ordacard Hi-Tec Industries, LOI
Page 12
EXHIBIT A
ORDACARD SHAREHOLDERS
<TABLE>
<CAPTION>
Name of Shareholder No. of Shares of % of Outstanding
- ------------------- Capital Capital Stock
Stock Held by ----------------
-------------
Shareholder
-----------
<S> <C> <C>
Elie Garber 145,000 36.25%
Amir Galil 72,500 18.125
Lily Silver 72,500 18.125
Paul Kittay 10,000 2.5
USBC Capital Corporation 100,000 25%
======= =======
Total 400,000 100%
</TABLE>
