abtg_ex1026.htm


    EXHIBIT
10.26

    


    AMENDMENT
TO SECURITIES PURCHASE AGREEMENT

    


    This Amendment to Securities Purchase
Agreement, dated as of January 15, 2010 (the “Amendment”), is
hereby made by and between Ambient Corporation, a Delaware corporation (the
“Company”) and
Vicis Capital Master Fund (“Vicis”), a series of
the Vicis Capital Master Trust, a trust formed under the laws of the Cayman
Islands, and amends certain provisions of that certain Securities Purchase
Agreement, dated November 16, 2009, by and among the Company and Vicis (the
“Purchase
Agreement”).   All capitalized terms used but not defined
herein shall have their respective meanings ascribed to them in the Purchase
Agreement.

    


    R E C I T A L
S:

     

    WHEREAS, the Company has requested that
Vicis increase the Holdback Amount, and Vicis has agreed to increase such
Holdback Amount set forth in the Purchase Agreement, from $3,000,000 to
$8,000,000.

     

    WHEREAS, Vicis is the holder of: (i) a
Secured Convertible Promissory Note originally issued by the Company on July 10,
2007, in the aggregate principal amount of Seven Million Five Hundred Thousand
Dollars ($7,500,000); and (ii) a Secured Convertible Promissory Note originally
issued by the Company on November 1, 2007, in the aggregate principal amount of
Two Million Five Hundred Thousand Dollars ($2,500,000) (each, as amended by that
certain Debenture Amendment Agreement dated November 21, 2008, a “Debenture” and
collectively, the “Debentures”).

     

    WHEREAS, the Company andVicis believe
that it is in the Company’s best interest that Vicis convert the Debentures into
shares of the Company’s common stock, par value $0.001 per share (the “Common Stock”) as
soon as practicable on the terms and conditions specified in such Debentures,
and Vicis has so agreed to convert such Debentures.

     

    WHEREAS, each Debenture contains
conversion caps (the “Conversion Caps”)
that require Vicis to provide the Company 61 days’ prior notice before Vicis may
convert an amount of such Debenture that would result in Vicis beneficially
owning (i) greater than 4.99% of the outstanding shares of the Company’s common
stock, par value $0.001 per share (the “Common Stock”) of the
Company, and (ii) greater than 9.99% of the outstanding shares of Common Stock
of the Company.

     

    WHEREAS, the Company has agreed to
waive the requirement under the Debentures relating to the Conversion Caps that
Vicis provide the Company 61 days’ prior notice of such conversion.

     

    WHEREAS, in consideration for Vicis’s
increase of the Holdback Amount and Vicis’s agreement to convert the Debentures,
the Company has agreed to amend the terms of the Purchase Agreement and Series G
Warrant as hereinafter set forth.

    


    NOW, THEREFORE, in consideration of the
foregoing recitals and for good and other valuable consideration hereinafter set
forth, the receipt and sufficiency of which are hereby


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    acknowledged,
the parties hereto, intending to be legally bound, hereby agree as
follows:

    


    A G R E E M E N
T:

    


    1.           Amendments to the Purchase
Agreement.

     

    (a)           Amendment to the Preamble to
the Purchase Agreement.  The second paragraph of the Preamble
to the Purchase Agreement is amended and replaced in its entirety as
follows:

     

    WHEREAS, the Company wishes to
undertake a financing, and pursuant to the terms and conditions of this
Agreement, the Company wishes to issue and sell to the Purchaser, and the
Purchaser wishes to acquire from the Company, up to 80,000,000 shares (the
“Acquired
Shares”) of the Company’s common stock, par value $0.001 per share (the
“Common Stock”)
and Series G Warrants to purchase 80,000,000 shares of Common Stock in the Form
of Exhibit A
attached hereto (a “Series G Warrant”,
and the shares of Common Stock issuable upon exercise thereof, the “Warrant Shares”,
together with the Acquired Shares, collectively, the “Securities”).

     

    (b)           Amendment to Section 1.1 of
the Purchase Agreement.  Section 1.1 of the Purchase Agreement
shall be amended and replaced in its entirety as follows:

     

    1.1           Purchase and Sale of
Securities.  Upon the following terms and conditions, the
Company shall issue, sell and deliver to the Purchaser, and the Purchaser shall
purchase from the Company, the Securities, in exchange for $8,000,000 (the
“Purchase
Price”).  The Company and the Purchaser are executing and
delivering this Agreement in accordance with and in reliance upon the exemption
from securities registration afforded by Section 4(2) of the U.S.
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder (the “Securities Act”),
including Regulation D (“Regulation D”),
and/or upon such other exemption from the registration requirements of the
Securities Act as may be available with respect to any or all of the investments
to be made hereunder.

     

    (c)           Amendment to Section 1.2(b)
of the Purchase Agreement.  Section 1.2(b) of the Purchase
Agreement shall be amended and replaced in its entirety as follows:

     

    (b)           Upon
the Company’s written certification to the Purchaser that its Available Cash (as
defined below) is less than $1.5 million (each such instance being a “Release Condition”),
the Company shall be entitled to receive from the Holdback Amount the sum of
$500,000 (a “Release
Amount”) and the Purchaser shall be entitled to the issuance of 5,000,000
of the Acquired Shares and a Series G Warrant for a corresponding number of
shares of Common Stock (collectively, a “Tranche of
Securities”). As used herein, the term “Available Cash” shall
mean the aggregate amount of all immediately available funds that the Company
has access to in bank accounts in its name.  As

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    soon as
reasonably practicable after the Company provides such written certification to
the Purchaser that a Release Condition exists, but in any event within five (5)
business days thereafter, the Purchaser shall cooperate with the Company to
transfer a Release Amount to another account identified by the Company, and the
Company shall issue and deliver to the Purchaser a Tranche of
Securities.

     

    2.           Additional Deposit into the
Holdback Account.  As soon as reasonably practicable, but in any event five (5)
days hereafter, Vicis shall deposit an amount equal to $5,000,000 into the
Holdback Account.  For the avoidance of doubt, the parties agree that
any additional funds deposited into the Holdback Account are subject to all of
the terms and conditions set forth in the Transaction Documents, as amended
hereby, including, without limitation, that certain Pledged Collateral Account
Control Agreement.  As soon as reasonably practicable, and for the
avoidance of doubt, the Company agrees that it shall take reasonable efforts to
obtain for Vicis a written confirmation from Merrill Lynch, Pierce, Fenner &
Smith Incorporated (“Merrill Lynch”) that
additional amounts deposited by Vicis into the Holdback Account are subject to
that certain Pledged Collateral Account Control Agreement.

     

    3.           Debenture
Matters.

     

    (a)           Waiver of Conversion
Notice.  The Company hereby irrevocably waives the requirement
under the Debentures that Vicis provide the Company notice 61 days prior to
converting the Debentures, and the parties agree that the Debentures shall be
immediately eligible for conversion in their entirety.

     

    (b)           Conversion.  Vicis
agrees that as soon as practicable after the date hereof, Vicis shall convert
the Debentures in full by providing to the Company the specified notice of
conversion and any other documentation required under the Debentures to convert
such Debentures into shares of Common Stock.

     

    4.           Accuracy of the Company’s
Representations and Warranties.  Except as set forth on the
Schedule of Exceptions hereto, each of the representations and warranties of the
Company set forth in the Purchase Agreement, as of the date hereof, are true and
correct in all material respects (except for those representations and
warranties that are qualified by materiality or Material Adverse Effect, which
shall be true and correct in all respects) as though made as of the date hereof,
except for representations and warranties that are expressly made as of a
particular date, which shall be true and correct in all material respects
(except for those representations and warranties that are qualified by
materiality or Material Adverse Effect, which shall be true and correct in all
respects) as of such date.

     

    5.           Ratification.  Except
as expressly amended pursuant to this Amendment, all terms and conditions of the
Purchase Agreement and each related Transaction Document are hereby ratified and
confirmed in all respects and shall continue in full force and
effect.  All references to the Purchase Agreement shall hereafter
refer to such Purchase Agreement, as amended hereby.

     

    6.   Conflict.  In
the event of any conflict between the Purchase Agreement and this Amendment, the
terms of this Amendment shall govern.

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

     

    7.           Governing Law.
 This Amendment shall be governed by, and construed in accordance with, the
laws of the State of New York, without giving effect to applicable principles of
conflicts of law that would require the application of the laws of any other
jurisdiction.

     

    8.           Further
Assurances.  From and after the date of this Amendment, upon
the request of Vicis or the Company, the Company and Vicis shall execute and
deliver such instruments, documents and other writings as may be reasonably
necessary or desirable to confirm and carry out and to effectuate fully the
intent and purposes of this Amendment.

     

    9.           Counterparts.
 This Amendment may be executed in any number of counterparts, each of
which shall be deemed to be an original, and all of which taken together shall
constitute one and the same instrument.

     

     


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    
IN WITNESS WHEREOF, the parties have
caused this Amendment to be duly executed by their respective authorized
representatives as of the day and year first above written.

     

    


    
      
        	 	AMBIENT
      CORPORATION	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ John
      J. Joyce	 
	 	 	Name:
      John J. Joyce	 
	 	 	Title:  CEO	 
	 	 	 	 


      

    

     

    
      
        	 	HOLDER:	 
	 	 VICIS
      CAPITAL MASTER FUND,	 
	 	 a
      sub-trust of Vicis Capital Series Master Trust	 
	 	 By:	 Vicis
      Capital LLC	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Shad
      L. Stastney	 
	 	 	Name:  Shad
      L. Stastney	 
	 	 	Title:  Partner
      (Vicis Capital LLC)