<PAGE>
<PAGE>
To Become Effective Upon Filing Pursuant to Rule 462
As filed with the Securities and Exchange Commission on October 20, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
--------------------------
AMBIENT CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
<TABLE>
<S> <C>
Delaware 98-0166007
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
Jerusalem Technological Park Not applicable
Building One (Zip Code)
Malha, Jerusalem, Israel
(Address of Principal Executive
Offices)
</TABLE>
- ------------------------------------------------------------------------------
RANDOLPH BEIMEL CONSULTING AGREEMENT
(Full title of the Plan)
- ------------------------------------------------------------------------------
Jacob Davidson
Chairman of the Board, President
and Chief Executive Officer
Ambient Corporation
Jerusalem Technological Park
Building One
Malha, Jerusalem, Israel
(Name and Address of Agent for Service)
011-972-649-0611
(Telephone Number, Including Area Code, of Agent for Service)
Copies to: Samuel F. Ottensoser, Esq.
Baer Marks & Upham LLP
805 Third Avenue
New York, New York 10022
(212) 702-5700
If any of the Securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities being offered only in connection with Dividend or
Interest Reinvestment Plans, check the following line: X
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
------------------------------------------------------------------
Title of Amount to be Proposed Proposed Amount of
Securities Registered(1) Maximum Maximum Registration
to be Offering Aggregate Fee
Registered Price Per Offering
Share(2) Price(2)
------------------------------------------------------------------
<S> <C> <C> <C>
Common Stock, 35,000 shares $7.875 $275,625 $81.31
par value
$0.001 per
share
------------------------------------------------------------------
</TABLE>
(1) Represents 35,000 shares to be issued to Randolph Beimel pursuant to the
Randolph Beimel Consulting Agreement.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h)(1) on the basis of $7.875 per share, the average of
the bid and asked prices on the OTC Electronic Bulletin Board on October
13, 1998.
<PAGE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
In connection with the Registration Statement on Form S-8 (the
"Registration Statement") filed by Ambient Corporation (the "Registrant") with
the Securities and Exchange Commission on October 20, 1998, the following shall
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act of 1933, as amended (the "Securities Act"):
Item 1. Plan Information.
(a) General Plan Information
(1) The title of the Plan is the "Randolph Beimel Consulting Agreement"
(the "Plan") and the name of the Registrant whose securities are
offered pursuant to the Plan is Ambient Corporation.
(2) The nature and purpose of the Plan is to compensate Randolph Beimel
("Beimel") for consulting services rendered to the Registrant. The
duration of the Plan is until July 31, 1999, unless earlier terminated
by either the Registrant or Beimel.
(3) The Plan is not subject to any provisions of the Employee Retirement
Income Security Act of 1974, as amended.
(4) The name, address and telephone number of the Registrant are as set
forth on the facing page of this Registration Statement. Additional
information about the Plan may be obtained from the Registrant by the
Participant (as hereinafter defined).
(b) Securities to be Offered
(1) Shares of common stock, par value $0.001 per share (the "Common
Stock").
(2) The Common Stock of the Registrant is registered under Section 12 of
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(c) Employees Who May Participate in the Plan
Randolph Beimel, a consultant or advisor (an "employee" defined by
General Instruction A.l(a) of Form S-8) to the Registrant is the only
eligible participant (the "Participant") in the Plan. The
Participant's eligibility to participate in
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<PAGE>
the Plan is based solely upon the Participant's agreement to render
consulting services to the Registrant.
(d) Purchase of Securities Pursuant to the Plan and Payment for Securities
Offered.
(1)&(2) The Participant under the Plan will be issued shares of Common
Stock for consulting services rendered.
(3) Contributions by the Participant are not applicable.
(4) No contribution by the Registrant other than the issuance of shares of
Common Stock is applicable.
(5) Reports to the Participant as to the amount and status of its account
under the Plan will not be made.
(6) The shares issuable pursuant to the Plan will be newly issued shares
of Common Stock of the Registrant.
(e) There are no resale restrictions on the securities offered.
(f) The Plan is not qualified under Section 401(a) of the Internal Revenue
Code and the Participant will recognize ordinary income at the time of
the issuance of the shares measured by the fair market value of the
Registrant's common stock which is acquired by the participant.
Additionally, the Participant will have income in the form of capital
gains if the shares are sold at a price in excess of the exercise
price.
(g) Investment of Funds
Not Applicable
(h) Withdrawal from the Plan; Assignment of Interest
(1) The Participant may withdraw from the Plan at any time upon written
notice to the Registrant.
(2) The Participant's interest in the Plan may not be assigned.
(i) Forfeitures and Penalties
There are no provisions for forfeiture or penalties under the plans
except that termination of the Plan terminates the ability to receive
shares thereunder.
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<PAGE>
(j) Charges and Deductions and Liens Therefor
There are no charges and deductions that may be made against the
Participant's interest in the Plan.
Item 2. Registrant Information and Employee Plan Annual Information
The Registrant shall provide to the Participant, without charge, upon
written or oral requests, the documents incorporated herein by reference in Item
3 of Part II of this Registration Statement. The Registrant also shall provide
to the Participant, without charge, upon written or oral request, all other
documents required to be delivered to the Participant pursuant to Rule 428(b).
Any and all such requests shall be directed to the Registrant at Jerusalem
Technological Park, Building One, Malha, Jerusalem, Israel, telephone number
011-972-649-0611.
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<PAGE>
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by the Registrant with the
Securities and Exchange Commission, are incorporated herein by reference:
(a) The Registrant's Annual Report on Form 10-KSB for the fiscal year ended
December 31, 1997.
(b) The Registrant's Quarterly Reports on Form 10-QSB for each of the
three-month periods ended, respectively, March 31, 1998 and June 30, 1998.
(c) The description of the Registrant's Common Stock which is contained in
the Registrant's Registration Statement on Form 8-A filed with the Securities
and Exchange Commission on February 3, 1998 under Section 12 of the Exchange
Act, including any amendment or report filed for the purpose of updating such
description.
In addition, all documents filed subsequent to the date of this
Registration Statement by the Registrant pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed to be incorporated by
reference in this Registration Statement and to be a part hereof from the date
of the filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated herein by reference shall be deemed to
be modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement.
Item 4. Description of Securities.
The securities offered hereby are registered under Section 12 of the
Exchange Act.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Under Section 145 of the Delaware General Corporation Law ("Delaware Law"),
the Registrant has broad powers to indemnify its directors and officers against
liabilities they may incur in such capacities, including liabilities under the
Securities Act. The Registrant's
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<PAGE>
Bylaws provide that the Registrant will indemnify its directors, executive
officers, other officers, employees and agents to the fullest extent permitted
by Delaware Law.
The Registrant's Certificate of Incorporation provides for the elimination
of liability for monetary damages for breach of the directors' fiduciary duty of
care to the Registrant and its stockholders. These provisions do not eliminate
the directors' duty of care and, in appropriate circumstances, equitable
remedies such as injunctive or other forms of non-monetary relief will remain
available under Delaware Law. In addition, each director will continue to be
subject to liability for breach of the director's duty of loyalty to the
Registrant, for acts or omissions not in good faith or involving intentional
misconduct, for knowing violations of law, for any transaction from which the
director derived an improper personal benefit, and for payment of dividends or
approval of stock repurchases or redemptions that are unlawful under Delaware
Law. The provision does not affect a director's responsibilities under any other
laws, such as the federal securities laws or state or federal environmental
laws.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
Exhibit
Number
- --------
4.1 Consulting Agreement dated as of August 1, 1998 by and between Ambient
Corporation and Mission Bay Consulting, Inc.
5.1 Opinion of Baer Marks & Upham LLP.
23.1 Consent of Luboshitz, Kasierer & Co., Member firm of Arthur Andersen.
23.2 Consent of Baer Marks & Upham LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this Registration
Statement).
Item 9. Undertakings.
The undersigned Registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
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<PAGE>
<PAGE>
(iii) To include any additional or changed material information on the plan
of distribution.
(2) That, for the purpose of determining any liability under the Securities
Act, to treat each post-effective amendment as a new registration statement
relating to the securities offered therein, and that the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof;
(3) To file a post-effective amendment to remove from registration any of
the securities that remain unsold at the end of the offering;
(e) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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<PAGE>
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 15th day of
October, 1998.
AMBIENT CORPORATION
By: /s/ Jacob Davidson
---------------------
Jacob Davidson
Chairman of the Board, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Jacob Davidson his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this registration
statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and agent
or his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ Jacob Davidson Chairman of the Board, President October 15, 1998
- ------------------- and Chief Executive Officer
Jacob Davidson (Principal Executive Officer)
</TABLE>
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<PAGE>
<PAGE>
<TABLE>
<S> <C> <C>
/s/ Elie Wurtman Director and Secretary October 15, 1998
- -----------------
Elie Wurtman
/s/ Aryeh Weinberg Chief Financial Officer (Principal October 15, 1998
- ------------------ Financial Officer and Principal
Aryeh Weinberg Accounting Officer)
</TABLE>
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<PAGE>
<PAGE>
FORM S-8 REGISTRATION STATEMENT
ITEM 8
EXHIBITS
AMBIENT CORPORATION
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit
Number
- ---------
4.1 Consulting Agreement dated as of August 1, 1998 by and between Ambient
Corporation and Mission Bay Consulting, Inc.
5.1 Opinion of Baer Marks & Upham LLP.
23.1 Consent of Luboshitz, Kasierer & Co., Member firm of Arthur Andersen.
23.2 Consent of Baer Marks & Upham LLP (contained in Exhibit 5.1).
24.1 Power of Attorney (included on signature page of this Registration
Statement).
<PAGE>
<PAGE>
EXHIBIT 4.1
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (the "Agreement"), executed as of the 1st day of
August 1998, is hereby made between AMBIENT CORPORATION, a Delaware corporation
having offices at 270 Madison Avenue, New York, New York, 10016 (hereinafter
"ABTG"), and MISSION BAY CONSULTING, INC., a Rhode Island corporation having an
office address at 387 Atwells Avenue, Providence, Rhode Island 02909
(hereinafter "Consultant").
WITNESSETH:
WHEREAS, ABTG desires to obtain certain financial consulting services, and
Consultant is willing to provide such services in accordance with the terms and
conditions set forth below,
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
herein contained, the parties hereto agree to establish such client/consultant
relationship in accordance with the following terms and conditions set forth
below:
1. SCOPE OF SERVICES PROVIDED
1.1 Consultant is to provide certain financial public relations services to
ABTG in accordance with the terms and conditions hereof (the "Services"), which
shall include, but not necessarily be limited to, the following:
(i) supervising and managing a financial public relations firm selected by
the mutual agreement of ABTG and the Consultant, to increase the visibility and
corporate profile of ABTG to the financial community and the public at large;
(ii) assisting brokers, financial professionals, investors and other
interested persons in obtaining current information about ABTG's operations,
business and prospects;
(iii) responding to inquiries from the financial community and security
holders of ABTG regarding ABTG's operations, business and prospects;
(iv) assisting to the extent requested by ABTG in the preparation of annual
and interim financial reports and press releases regarding ABTG;
(v) assisting in securing third-party preparation of research reports
regarding ABTG; and
(vi) such other services as ABTG's Board of Directors may request
consistent with the above described services.
1
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1.2 The Consultant shall be obligated to render the services upon the
request of ABTG, in good faith, but shall not be obligated to expend any
specified amount of time in so doing. Consultant may work according to its own
methods and keep its own hours; ABTG shall not control the manner in which
Consultant works while performing under this Agreement. Notwithstanding the
foregoing, inasmuch as the Board of Directors of ABTG has retained the
Consultant to provide significant services and has a duty to the stockholders of
ABTG to supervise the operations of ABTG; Consultant accordingly agrees to
report to and be promptly responsive to redirection, questions, concerns, or
comments raised by the Board regarding the Services.
1.3 Consultant shall be responsible for the payment of all fees and
expenses of the firm retained pursuant to Section 1.1 hereof, and any persons
Consultant procures to assist it in performance of the Services. Any such
assistants shall be compensated by Consultant and are deemed employees solely of
Consultant. Consultant agrees to be solely responsible for any actions of its
assistant, agents or other employees. Consultant agrees to comply with all
applicable Federal, state and local laws, regulations and ordinances.
Notwithstanding the foregoing, ABTG agrees to provide Consultant with support
and cooperation in connection with the performance of the Services.
1.4 ABTG recognizes and confirms that, in advising ABTG and in fulfilling
its responsibilities under this agreement, the Consultant will use and rely on
data, material and other information furnished to the Consultant by ABTG. ABTG
acknowledges and agrees that in performing the Services under this Agreement,
the Consultant may rely upon data, material and other information supplied by
ABTG without independently verifying the accuracy, completeness or veracity of
the same. Accordingly, ABTG expressly agrees that all data, material and other
information furnished to the Consultant by ABTG shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
2. PAYMENT FOR SERVICES
2.1 As full compensation for the performance of the Services ABTG shall:
(i) issue to Consultant a nonqualified stock option (the "Option") under
ABTG's January 1998 Stock Option Plan to purchase an aggregate of 80,000 shares
of ABTG common stock (the "Common Stock"). The Option shall have such vesting
and other terms, conditions and provisions as shall be determined by ABTG, and
shall be in the form of Exhibit A hereto;
(ii) issue to Consultant an aggregate of 65,000 shares of Common Stock (the
"Compensation Shares"), which shares shall be issued to Consultant in the manner
set forth below (each such issuance, a "Tranche"):
2
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<PAGE>
20,000 Compensation Shares to be issued August 1, 1998;
15,000 Compensation Shares to be issued November 1, 1998;
15,000 Compensation Shares to be issued February 1, 1998; and
15,000 Compensation Shares to be issued May 1, 1998.
(iii) reimbursement of Consultant's pre-approved accountable expenses
incurred in rendering the Services (following submission of satisfactory
documentation).
2.2 No fringe benefits or employee benefits shall be paid or given to
Consultant. Consultant shall be solely responsible for the payment of any and
all Federal, state, and local income taxes, Social Security taxes and
unemployment taxes that may be generated hereunder. ABTG shall not withhold any
such items and bears no responsibility for any such payments. The Consultant
shall perform the Services hereunder as an independent contractor and not as an
employee of ABTG or an affiliate thereof. It is expressly understood and agreed
to by the parties hereto that the Consultant shall not have authority to act
for, represent or bind ABTG or any affiliate thereof in any manner.
2.3 ABTG shall use its best efforts to: (i) include each Tranche of
Compensation Shares issued to Consultant in a registration statement of ABTG on
Form S-8 or other qualifying or successor form to be filed with the Securities
and Exchange Commission (the "Commission") under the Securities Act of 1933 (the
"1933 Act"); and (ii) have such registration statement declared effective by the
Commission, so that each Tranche of Compensation Shares shall be registered
under the 1933 Act on or prior to the date such Tranche of Compensation Shares
is issued.
3. TERM AND TERMINATION
3.1 Consultant shall commence providing the services contemplated hereunder
as of the date hereof and shall continue providing such services until the
earlier of (i) July 31, 1999; or (ii) such time as this Agreement is earlier
terminated pursuant to the provisions of Section 3.2 hereof.
3.2 Either party hereto shall have the option to terminate this Agreement
at any time without cause upon thirty (30) days prior notice to the other party.
The right to terminate this Agreement as provided for in this Section 3.2 shall
be in addition to and not in lieu of any right either party hereto may have
against the other for breach of this Agreement. In the event of such
termination, any portion of the Option which was unexercised at the date of
notification of termination shall be forfeited.
3.3(a) Notwithstanding Article 2 hereof, if Consultant is terminated for
"cause" (as defined in Section 3.3(e)), Consultant shall forfeit all
Compensation Shares issued to Consultant through the date of termination, and
Consultant shall immediately surrender to ABTG the certificate(s) evidencing all
Compensation Shares issued pursuant to all Tranches under this Agreement. In the
event this Agreement is terminated pursuant to this Section 3.3(a), ABTG
3
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<PAGE>
shall cease to have any obligation to Consultant hereunder, including, but not
limited to, the issuance of any Tranche of Compensation Shares.
(b) Notwithstanding Article 2 hereof, if Consultant terminates this
Agreement for any reason, or for no reason, then Consultant shall forfeit
one-half of all Compensation Shares issued to Consultant through the date of
termination. Consultant shall then immediately surrender to ABTG the
certificate(s) evidencing the Compensation Shares to be surrendered, and ABTG
shall retire and cancel such shares. In the event this Agreement is terminated
pursuant to this Section 3.3(b), ABTG shall cease to have any obligation to
Consultant hereunder, including, but not limited to, the issuance of any Tranche
of Compensation Shares.
(c) Notwithstanding Article 2 hereof, if Consultant is terminated without
"cause", Consultant shall be entitled to ownership of all Compensation Shares to
be issued pursuant to the terms of this Agreement.
(d) In the event all or any part of the Compensation Shares to be forfeited
and surrendered to ABTG by Consultant upon a termination of this Agreement
pursuant to this Article 3 have been sold by the Consultant, then the Consultant
shall return to ABTG the economic value of the Compensation Shares sold and
required to be surrendered. The economic value of such shares shall be equal to
the price at which such shares were sold by the Consultant, and shall
immediately be remitted to ABTG in cash at the time of surrender.
(e) For purposes of this Agreement, the term "cause" shall mean fraud,
willful neglect or wrongful acts, repeated negligence or the failure to perform
to customary consulting standards, conviction of, or a plea of guilty or nolo
contendre to, a felony or misdemeanor which is a crime, or a violation of
Section 6 hereof.
4. CONSULTANT TO PROVIDE NON-EXCLUSIVE SERVICES
Either Consultant, or Randolph Beimel, Consultant's principal stockholder,
may provide services similar to the Services to any other clients while this
Agreement is in effect without the prior express written consent of ABTG's Board
of Directors.
5. REPRESENTATIONS AND WARRANTIES
5.1 ABTG represents and warrants to the Consultant as follows:
(i) Organization and Standing of ABTG. ABTG is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has all requisite power and authority to enter into this Agreement.
(ii) Authorization. ABTG has all requisite power and authority to execute,
deliver and perform this Agreement and to carry out and consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by ABTG
4
<PAGE>
<PAGE>
has been duly authorized by all requisite corporate action and this Agreement
has been duly executed and delivered by ABTG and constitutes the legal, valid
and binding obligation by ABTG, enforceable against ABTG in accordance with its
terms, subject as to enforcement of remedies to applicable bankruptcy,
insolvency, reorganization or similar laws affecting generally the enforcement
of creditors' rights and the relief of debtors.
(iii) Reporting Company Status. ABTG has a reporting obligation pursuant to
Section 12(g) or 15(d) of the Securities Exchange Act of 1934 , as amended (the
"Exchange Act") and ABTG is current in the filing of all periodic reports under
the Exchange Act.
5.2 The Consultant represents and warrants to ABTG as follows:
(i) Organization and Standing of Consultant. Consultant is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Rhode Island and has all requisite power and authority to enter into
this Agreement.
(ii) Authorization. The Consultant has all requisite power and authority to
execute, deliver and perform this Agreement and to carry out and consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by the Consultant has been duly authorized by all requisite
corporate action and this Agreement has been duly executed and delivered by the
Consultant and constitutes the legal, valid and binding obligation by the
Consultant, enforceable against the Consultant in accordance with its terms,
subject as to enforcement of remedies to applicable bankruptcy, insolvency,
reorganization or similar laws affecting generally the enforcement of creditors'
rights and the relief of debtors.
(iii) Noncontravention. The execution, delivery and performance of this
Agreement by the Consultant will not violate any provision of any law, any rule
or regulation of any governmental authority, or any judgment, decree or order of
any court binding on the Consultant, and will not conflict with or result in any
breach of any of the unwaived terms, conditions or provisions or constitute a
default under, or result in the creation of any lien, security interest, charge
or encumbrance upon any of the Consultant's properties or assets, or any
material indenture, mortgage, lease, agreement or other instrument to which the
Consultant is a party.
(iv) Non-Distribution. The Consultant represents and warrants to ABTG that
the Option and the Consideration Shares are being acquired by the Consultant for
its own account for investment, not as a nominee or agent, and without a view to
resale or other distribution within the meaning of the 1933 Act and the rules
and regulations thereunder, and the Consultant will not distribute them in
violation of the 1933 Act.
5
<PAGE>
<PAGE>
6. DISCLOSURE OF INFORMATION
Upon completion of Consultant's work hereunder, all of its documents,
records, notebooks, and other work product containing confidential information
and all copies thereof, will be left with ABTG. Consultant agrees not to
disclose to anyone any confidential information obtained while providing the
Services hereunder, unless Consultant obtains the prior written approval of
ABTG's Board of Directors. Notwithstanding anything herein to the contrary,
regardless of the circumstances under which this Agreement is terminated there
shall be no restrictions on the engagements accepted by Consultant after the
term of this Agreement. Consultant acknowledges and agrees that, because of the
unique and extraordinary nature of the Services, any breach or threatened breach
of any of the provisions of Section 7 hereof will cause irreparable injury and
incalculable harm to ABTG, and ABTG shall, accordingly, be entitled to
injunctive and other equitable relief for such breach or threatened breach and
that resort by ABTG to such injunctive or other equitable relief shall not be
deemed to waive or limit in any respect any right or remedy which ABTG may have
with respect to such breach or threatened breach. ABTG and Consultant agree that
any such action for injunctive or equitable relief shall be heard in a state or
federal court situate in Rhode Island and each of the parties hereto hereby
agree to accept service of process by registered mail and to otherwise consent
to the jurisdiction of such courts.
7. INDEMNIFICATION
7.1 ABTG hereby agrees to indemnify and hold Consultant harmless to the
maximum extent permitted by applicable law and the by-laws of ABTG, against all
losses, claims, liens, damages, liabilities, costs, charges, and expenses,
including, without limitation, the costs of investigating, preparing or
defending any action, suit, claim or proceeding or threatened action, suit,
claim or proceeding, whether civil, criminal, or administrative, including,
without limitation, attorney's fees, incurred or sustained by Consultant in
connection with (i) any misrepresentation of ABTG herein or breach of any
covenant of ABTG; and (ii)any such action, suit, claim or other proceeding, to
which Consultant is, or may be made, a party by reason of its being a party to
and performing under this Agreement; provided however, that any action, suit,
claim or proceeding shall not be a result of Consultant's negligence or willful
misconduct.
7.2 Consultant hereby agrees to indemnify and hold ABTG, its officers,
employees, directors, shareholders, and agents (collectively "ABTG Indemnitees")
harmless to the maximum extent permitted by applicable law and the by-laws of
the Consultant, against all losses, claims, liens, damages, liabilities, costs,
charges, and expenses, including, without limitation, the costs of
investigating, preparing or defending any action, suit, claim or proceeding or
threatened action, suit, claim or proceeding, whether civil, criminal, or
administrative, including, without limitation, attorney's fees, incurred or
sustained by any ABTG Indemnitee in connection with (i) any misrepresentation of
Consultant herein or breach of any covenant of Consultant; and (ii) any such
action, suit, claim or other proceeding, to which ABTG is, or may be made, a
party by reason of Consultant's gross negligence or willful misconduct in the
performance of the Services under this Agreement.
6
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8. MISCELLANEOUS
8.1 Notices. All notices, requests, consents and other communications
required or permitted to be given hereunder, shall be in writing and shall be
deemed to have been duly given if delivered personally or sent by prepaid
telegram, or mailed first-class, postage prepaid, by registered or certified
mail (notices sent by telegram or mailed shall be deemed to have been given on
the date sent), to the parties at their respective address hereinabove set forth
or to such other address as either party shall designate by notice in writing to
the other in accordance herewith.
8.2 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the local laws of the State of Rhode Island
applicable to agreements made and to be performed entirely in Rhode Island. This
Agreement shall be governed in all respects and for all purposes by the laws of
the State of Rhode Island and the Courts of the State of Rhode Island shall have
exclusive jurisdiction to enforce any order or award obtained in arbitration. If
any provision of this Agreement shall be declared void or against public policy,
such provision shall be deemed severed from this Agreement and the remaining
provisions shall remain in full force and effect and unmodified.
8.3 Arbitration. Except with respect to any proceeding brought under
Section 7 hereof, any controversy, claim, or dispute between the parties,
directly or indirectly, concerning this Agreement or the breach hereof, or the
subject matter hereof, including questions concerning the scope and
applicability of this arbitration clause, shall be finally settled by
arbitration in Kent County, Rhode Island pursuant to the rules then applying of
the American Arbitration Association. The arbitrators shall consist of one
representative selected by ABTG, one representative selected by the Consultant,
and one representative selected by the first two arbitrators. The parties agree
to expedite the arbitration proceeding in every way, so that the arbitration
proceeding shall be commenced within thirty (30) days after the request
therefore is made, and shall continue thereafter, without interruption, and that
the decision of the arbitrators shall be handed down within thirty (30) days
after the hearings if the arbitration proceedings are closed. The arbitrators
shall have the right and authority to assess the cost of the arbitration
proceedings and to determine how their decision or determination as to each
issue or matter in dispute may be implemented or enforced. The decision in
writing of any two of the arbitrators shall be binding and conclusive on all of
the parties to this Agreement. Should either ABTG or the Consultant fail to
appoint an arbitrator as required by this Section 8.3 within thirty (30) days
after receiving written notice from the other party to do so, the arbitrator
appointed by the other party shall act for all of the parties and its decision
in writing shall be binding and conclusive on all of the parties to this
Agreement. Any decision or award of the arbitrators shall be final and
conclusive on the parties to this Agreement; judgment upon such decision or
award may be entered in any competent Federal or state court located in the
United States of America; and the application may be made to such court for
confirmation of such decision or award for any order of enforcement and for any
other legal remedies that may be necessary to effectuate such decision or award.
7
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8.4 Entire Agreement. This Agreement sets forth the entire agreement and
understanding of the parties relating to the subject matter hereof, and
supersedes all prior agreements, arrangements and understandings, written or
oral, relating to the subject matter hereof. No representation, promise or
inducement has been made by any party that is not embodied in this Agreement,
and no party shall be bound by or liable for any alleged representation, promise
or inducement not so set forth.
8.5 Assignability. This Agreement, and the various parties' rights and
obligations hereunder may not be assigned. Notwithstanding the foregoing, any
party hereto which is a corporation may assign its rights, together with its
obligations, hereunder in connection with any sale, transfer or other
disposition of all or substantially all of its business or assets; and in such
even the rights and obligations of such corporation hereunder shall be binding
on its successors or assigns, whether by merger, consolidation or acquisition of
all or substantially all of the business or assets. This Agreement shall be
binding upon the parties hereto and their respective executors, administrators,
legal representatives, successors and assigns.
8.6 Amendment. This Agreement may be amended, modified, superseded,
canceled, renewed or extended and the terms or covenants hereof may be waived,
only by a written instrument executed by all of the parties hereto who are
thereby affected, or in the case of a waiver, by the party waiving compliance.
No superseding instrument, amendment, modification, cancellation, renewal or
extension hereof shall require the consent or approval of any person other than
the parties hereto. The failure of either party at any time or times to require
performance of any provision hereof shall in no matter affect the right at a
later time to enforce the same. No waiver by either party of the breach of
contract or otherwise, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such breach, or a waiver of
the breach of any other term or covenant contained in this Agreement.
8.7 Insurance. Consultant must produce and provide ABTG with evidence of
personal hospitalization insurance and business insurance.
8.8 Survival. The rights and obligations under Paragraphs 2,5,6,and 7 shall
survive and continue after any expiration or termination of this Agreement and
shall bind the parties and their legal representatives, successors, heirs and
assigns.
8
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IN WITNESS WHEREOF, the parties hereto have set their hands and seals as of
the date first written above.
AMBIENT CORPORATION
By: /s/ Jacob Davidson
-------------------
Jacob Davidson
CEO
[Seal]
MISSION BAY CONSULTING, INC.
By: /s/ Randolph Beimel
--------------------
Randolph Beimel
President
[Seal]
10
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[BAER MARKS & UPHAM LLP LETTERHEAD]
EXHIBIT 5.1
October 19, 1998
Ambient Corporation
Jerusalem Technological Park
Building One
Malha, Jerusalem, Israel
Gentlemen:
We have acted as counsel to Ambient Corporation, a Delaware corporation
(the "Company"), in connection with a Registration Statement on Form S-8 (the
"Registration Statement") being filed with the Securities and Exchange
Commission under the Securities Act of 1933, as amended, relating to the
offering of 35,000 shares (the "Shares") of Common Stock, $0.001 par value per
share, issuable to Randolph Beimel, pursuant to the Randolph Beimel Consulting
Agreement (the "Plan").
In connection with the foregoing, we have examined originals or copies,
satisfactory to us, of all such corporate records and of all such agreements,
certificates and other documents as we have deemed relevant and necessary as a
basis for the opinion hereinafter expressed. In such examination, we have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals and the conformity with the original documents of
all documents submitted to us as copies. As to any facts material to such
opinion, we have, to the extent that relevant facts were not independently
established by us, relied on certificates of public officials and certificates
of officers or other representatives of the Company.
Based upon and subject to the foregoing, we are of the opinion that, when
issued and paid for in accordance with the Plan, the Shares will be validly
issued, fully paid and non-assessable.
We are qualified to practice law in the State of New York and are not
licensed or admitted to practice law in any other jurisdiction. Accordingly, we
express no opinion with respect to the laws of any jurisdiction other than the
State of New York, the State of Delaware and the federal laws of the United
States.
We hereby consent to the use of this opinion as herein set forth as an
exhibit to the Registration Statement. In giving such consent, we do not thereby
concede that we are in the category of persons whose consent is required under
Section 7 of the Securities Act of 1933, as amended, or the rules and
regulations thereunder.
Very truly yours,
/s/ Baer Marks & Upham LLP
Baer Marks & Upham LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of Ambient Corporation on Form S-8 of
our report dated May 19, 1998 of Ambient Corporation's consolidated financial
statements appearing in the Annual Report on Form 10-KSB for the year ended
December 31, 1997.
/s/ Luboshitz, Kasierer & Co.
LUBOSHITZ, KASIERER & CO.
Member firm of Arthur Andersen
Tel-Aviv, Israel
October 18, 1998
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EXHIBIT 23.2
CONSENT OF BAER MARKS & UPHAM LLP
INCLUDED IN EXHIBIT 5.1
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