Exhibit 10.20.1
---------------
EXECUTION COPY
--------------
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT ("Agreement") is effective as of the 1/st/ day of January,
2000 and is entered into by and among Electric Fuel Corporation, a Delaware
corporation ("EFC"), and Electric Fuel Limited, an Israeli company ("EFL" and
together with EFC, the "Companies"), and Xx. Xxxxxx X. Xxxxxxx, Israel I.D.
Number 303673487 (the "Executive").
WHEREAS, the Companies and the Executive entered into an Amended and
Restated Employment Agreement dated as of October 1, 1996 (the "Original
Agreement") formalizing the terms of the Executive's employment with the
Companies;
WHEREAS, the Companies and the Executive now wish to amend and restate the
Original Agreement in its entirety in accordance with the terms of this
Agreement;
NOW, THEREFORE, in consideration of the respective agreements of the
parties contained herein, the parties agree as follows:
1. Term.
----
The term of the Executive's employment under this Agreement shall be for the
period commencing on January 1, 2000, and ending on December 31, 2002 (the
"Initial Term"), provided, however, that the term of this Agreement shall be
automatically extended for additional terms of two (2) years each (each, an
"Additional Term") upon the end of the Initial Term and each Additional Term,
unless either the Executive or both Companies shall have given written notice to
the other at least one hundred fifty days (150) days prior thereto that the term
of this Agreement shall not be so extended (a "Non-Renewal"). The provisions of
this Agreement shall apply to the relationship between the parties hereto
retroactively as if this Agreement were signed on the commencement of the
Initial Term.
2. Employment.
----------
(a) The Executive shall be employed as the Chairman of the Board and Chief
Financial Officer of each Company. The Executive shall perform the duties,
undertake the responsibilities and exercise the authority customarily
performed, undertaken and exercised by persons situated in a similar
executive capacity in publicly-held United States corporations and their
Israeli subsidiaries. The Executive shall exercise his authority in a
reasonable manner and shall report to the Board of Directors of each
Company (each a "Board").
(b) Excluding periods of vacation and sick leave to which the Executive shall
be entitled, the Executive agrees to devote the attention and time to the
businesses and affairs of the Companies required to discharge the
responsibilities assigned to the Executive hereunder. The Companies
acknowledge that the Executive is a director of PSC Inc., Eldat
Communications Ltd. and Jerusalem Global Ltd. and may be or become an
officer or director of these or other companies. In addition, the Companies
acknowledge that the Executive is involved in certain investment banking
activities which, together with the above mentioned positions, will consume
a portion of his time and require him to travel. The Companies consent to
these other positions and activities so long as these do not interfere in
any material manner with the Ex-
ecutive's performance of his duties hereunder and do not constitute a
violation of Section 8 hereof. The Executive's duties shall be in the
nature of management duties that demand a special level of loyalty and
accordingly the Israeli Law of Work Hours and Rest - 1951 shall not apply
to this Agreement.
(c) While the Executive is employed by the Companies hereunder, EFC shall use
its best efforts to cause the Executive to be elected to, and if so elected
the Executive shall serve on, the Board of EFC as a member of such Board,
and shall cause the Executive to be elected to, and the Executive shall
serve on, the Board of EFL as a member of such Board.
(d) Each Company will use its reasonable best efforts to obtain, and to keep in
place at all times that the Executive is a director or officer of either
Company, a directors and officers liability policy covering the Executive
in an amount and otherwise containing terms and conditions consistent with
past practices.
(e) The Executive agrees to serve on the board of directors of such
subsidiaries of the Companies as the Board may reasonably request.
3. Base Salary, Bonus and Financial Planning Allowance.
----------------------------------------------------
(a) Base Salary.
------------
The Companies agree to pay or cause to be paid to the Executive during the
first year of this Agreement a base salary at the rate of US $20,000 per
month, payable in U.S. Dollars or in the currency of Israel (as determined
by the Representative Rate of the U.S. Dollar published by the Bank of
Israel immediately prior to the date of payment of each installment
thereof), or such larger amount as the Board may in its sole discretion
determine following a review which shall be conducted by the Board by not
later than March 31 of each year, such larger amount to take effect
retroactively to the January 1 immediately preceding such review
(hereinafter referred to as the "Base Salary"). Notwithstanding such
review, on each anniversary of the effective date of this Agreement, the
Base Salary shall be adjusted upward in an amount equal to the official
anticipated net Israeli inflation rate as published by the Israeli Central
Bureau of Statistics in the month of December immediately preceding such
anniversary, in each case for the year immediately following such
anniversary, as adjusted for any changes in the value of the New Israeli
Shekel against the U.S. Dollar. Such Base Salary shall be payable in equal
monthly installments.
(b) Bonus
The Companies agree to pay or cause to be paid to the Executive on each
anniversary of this Agreement or as soon thereafter as may be possible in order
to determine the relevant results of the Companies, an annual bonus, as follows:
(i) If, as of such anniversary, the Companies shall have attained
80% of the Companies' Budgeted Number (as defined below) for the year preceding
such anniversary, then Executive's bonus shall be equal to 35% of Executive's
annual Base Salary as then in effect for the year preceding such anniversary;
-2-
(ii) If, as of such anniversary, the Companies shall have attained
120% of the Companies' Budgeted Number (as defined below) for the year preceding
such anniversary, then Executive's bonus shall be equal to 90% of Executive's
annual Base Salary as then in effect for the year preceding such anniversary;
(iii) If, as of such anniversary, the Companies shall have attained
more than 80% but less than 120% of the Companies' Budgeted Number (as defined
below), then Executive's bonus shall be calculated as follows:
B = (S x 35%) + (N-80)/40 x (S x 55%)
-- ---
Where:
B = The amount of Executive's annual bonus, as a percentage of
Executive's Base Salary; and
N = The percentage of the Budgeted Number (as defined below)
that was attained by the Companies in the immediately preceding
fiscal year; provided, however, that N is more than 80 and less
than 120;
S = Executive's Base Salary.
For the purposes of this Section 3(b), the Budgeted Number shall be the budgeted
results of the Companies as mutually agreed by the Boards and Executive prior to
the end of each fiscal year for the fiscal year designated in such budget.
(c) In addition, the Companies shall pay Executive an amount of $10,000 on
each anniversary of this Agreement to cover Executive's tax and financial
planning expenses.
(d) To the maximum extent permitted by law, all payments to the Executive
hereunder shall be paid in U.S. Dollars. Subject to the immediately preceding
sentence, and subject to the approval of the Executive, which shall not be
unreasonably withheld, the Companies, in order to reflect the different duties
of the Executive with respect to each of them, may allocate between themselves
their obligations to make the payments and provide the benefits specified in
this Agreement. The amount paid to the Executive hereunder by EFL shall be
referred to hereinafter as the "EFL Base Salary"; provided, that in no event
shall the EFL Base Salary in any year be greater than the Base Salary for that
year.
4. Employee Benefits.
-----------------
The Executive shall be entitled to the following benefits:
-3-
(a) Manager's Insurance. The Companies will pay to an insurance company of the
-------------------
Executive's choice, as premiums for manager's insurance for the Executive,
an amount equal to 13.33% of each monthly payment of the Base Salary
together with 2.5% of the Base Salary for disability, and will deduct from
each monthly payment of the Base Salary and pay to such insurance company
an amount equal to 5% of each monthly payment of the Base Salary, which
shall constitute the Executive's contribution to such premiums. Upon the
termination of the Executive's employment with the Companies for whatever
reason, including without limitation termination for Cause or the
resignation by the Executive, the right to receive the manager's insurance
benefits shall be automatically assigned to the Executive.
(b) Education Fund (Keren Hishtalmut). The Companies will contribute to an
---------------------------------
education fund of the Executive's choice an amount equal to 7.5% of each
monthly payment of the Base Salary, and will deduct from each monthly
payment of the Base Salary and contribute to such education fund an
additional amount equal to 2.5% of each such monthly payment of the Base
Salary. Upon the termination of the Executive's employment with the
Companies for whatever reason, including without limitation termination for
Cause or the resignation by the Executive, the right to receive any amounts
in such fund shall be automatically assigned to the Executive. All
education fund contributions or imputed income made under this Section in
excess of the statutory exemption shall be tax-effected such that the
amount of contribution net of any taxes and withholding (including such
amounts in respect of payments pursuant to this sentence) equals the
percentages specified herein.
(c) Vacation. The Executive shall be entitled to an annual vacation at full pay
--------
equal to 24 work days.
Vacation days may be accumulated and may, at the Executive's option or
automatically upon termination, be converted into cash payments in an
amount equal to the proportionate part of the Base Salary for such days;
provided, however, that if the Executive accumulates more than two (2)
times his then current annual entitlement of vacation days, such excess
shall be automatically converted into the right to receive such a cash
payment in respect of such excess. Payments to which the Executive is
entitled pursuant to this Section 4(c) shall be made promptly after the
Executive's request therefor.
(d) Sick Leave. The Executive shall be entitled to 30 days of fully paid sick
----------
leave; provided, however, that the Executive shall not be entitled to sick
leave payment to the extent he is already covered by manager's insurance.
Sick leave may be accumulated and may, at the Executive's option, be
converted into cash payments in an amount equal to the proportionate part
of the Base Salary for such days. Payments to which the Executive is
entitled pursuant to this Section 4(d) shall be made promptly after the
Executive's request therefor.
(e) Automobile. Every three years, the Companies shall make a new automobile
----------
available to the Executive during the term of this Agreement. Such
automobile shall be of a high quality comparable to, but not less than,
that of a current (2001, with respect to the Initial Term) model Honda
Accord, to other cars and shall be subject to the approval of the
Executive, which shall not be unreasonably withheld. The Executive shall be
entitled to use the automobile for his personal and business needs, so long
as he does not allow anyone who would not be covered by the Companies'
insurance to drive it. The Companies shall pay all expenses of maintaining
and operating the automobile. All expense reimbursements or imputed income
made under this Section shall be tax-effected such that the amount of
reimbursement received
-4-
by the Executive net of any taxes and withholdings (including such amounts
in respect of payments pursuant to this sentence) equals the expense
incurred.
(f) Recuperation Payments (D'mai Havra-ah). The Executive shall be entitled to
--------------------------------------
Recuperation Payments in accordance with the Companies' policies for all of
its management employees, but no less than required by law.
(g) Benefit Plans. The Executive shall be entitled to participate in all
-------------
incentive, bonus, benefit or other similar plans offered by either of the
Companies, including without limitation EFC's 1993 Stock Option and
Restricted Stock Purchase Plan, in accordance with the terms thereof and as
determined by the Boards from time to time.
5. Expenses.
--------
The Executive shall be entitled to receive prompt reimbursement of all expenses
reasonably incurred by him in connection with the performance of his duties
hereunder. Without limiting the generality of the foregoing, the Companies shall
pay all of the Executive's expenses in the use of telephones for the Companies'
businesses. The Executive shall be entitled to receive room, board and travel
reimbursement in connection with the performance of his duties other than at the
principal executive office of either Company, as is customary for senior
executives in publicly-held United States and Israeli companies. All expense
reimbursements made under this Section shall be tax-effected such that the
amount of reimbursement received by the Executive net of any taxes and
withholdings (including such amounts in respect of payments pursuant to this
sentence) equals the expense incurred.
6. Termination.
-----------
The Executive's employment hereunder shall and/or may be terminated under the
following circumstances:
(a) Death. This Agreement shall terminate upon the death of the Executive.
-----
(b) Disability. The Companies may terminate the Executive's employment after
----------
having established the Executive's Disability. For purposes of this
Agreement, "Disability" means a physical or mental infirmity which impairs
the Executive's ability to substantially perform his duties under this
Agreement which continues for a period of at least one hundred and eighty
(180) consecutive days.
(c) Cause. The Companies may terminate the Executive's employment for Cause.
-----
For purposes of this Agreement, termination for "Cause" shall mean and
include: (i) conviction for fraud, crimes of moral turpitude or other
conduct which reflects on the Companies in a material and adverse manner;
(ii) a willful failure to carry out a material directive of either of the
Boards, provided that such directive concerned matters within the scope of
the Executive's duties, was in conformity with Sections 2(a) and 2(b)
hereof, would not give the Executive Good Reason to terminate this
Agreement and was capable of being reasonably and lawfully performed; (iii)
conviction in a court of competent jurisdiction for embezzlement of funds
of the Companies; and (iv) reckless or willful misconduct that is
materially harmful to either of the Companies; provided, however, that the
Companies may not terminate the Executive for Cause unless they have given
the Executive (i) written notice of the basis for the proposed termination
given not more than thirty (30) days after the Companies have obtained
know-
-5-
ledge of such basis ("Companies' Notice of Termination") and (ii) a period
of at least thirty (30) days after the Executive's receipt of such notice
in which to cure such basis.
(d) Good Reason. The Executive may terminate his employment under this
-----------
Agreement for Good Reason. For purposes of this Agreement, "Good Reason"
shall mean the occurrence of any of the events or conditions described in
subsections (i) through (viii) hereof:
(i) a change in the Executive's status, title, position or
responsibilities which, in the Executive's reasonable judgment,
represents a reduction or demotion in the Executive's status,
title, position or responsibilities as in effect immediately prior
thereto;
(ii) a reduction in the Executive's Base Salary;
(iii) the failure by the Companies to continue in effect any material
compensation or benefit plan in which the Executive is
participating;
(iv) the insolvency or the filing (by any party, including the
Companies) of a petition for the winding-up of either of the
Companies;
(v) any material breach by the Companies of any provision of this
Agreement;
(vi) any purported termination of the Executive's employment for Cause
by the Companies which does not comply with the terms of Section
6(c) of this Agreement;
(vii) any movement of either Company's principal executive offices from
the Jerusalem/Tel Aviv area of Israel; and
(viii) any movement of the location where the Executive is generally to
render his services to the Companies hereunder from the
Jerusalem/Tel Aviv area of Israel;
provided, however, that the Executive may not terminate his employment
under this Agreement for Good Reason unless he has given the Companies (i)
written notice of the basis for the proposed termination given not more
than thirty (30) days after the Executive has obtained knowledge of such
basis ("Executive's Notice of Termination") and (ii) a period of at least
thirty (30) days after the Companies' receipt of such notice in which to
cure such basis.
(e) Change in Control. The Executive may terminate this Agreement if there is a
-----------------
"Change in Control". For purposes of this Agreement, a "Change in Control"
shall mean any of the following events:
(i) the acquisition (other than from EFC in any public offering or
private placement of equity securities) by any person or entity of
beneficial ownership of twenty (20%) or more of the combined voting
power of EFC's then outstanding voting securities; or
(ii) individuals who, as of January 1, 2000, were members of the Board
of EFC (the "Original EFC Board"), together with individuals
approved by a vote of at least two-thirds (2/3) of the individuals
who were members of the Original EFC Board and are then still
members of the Board of EFC, cease for any reason to constitute at
least one-third (1/3) of the Board of EFC; or
-6-
(iii) approval by the shareholders of either of the Companies of a
complete winding-up of such Company or an agreement for the sale or
other disposition of all or substantially all of the assets of
either of the Companies.
The Executive shall give to the Companies an Executive's Notice of
Termination if the Executive desires to terminate his employment because
there has been a Change in Control, such notice to specify the date of such
termination which shall be not less than thirty (30) days after such notice
is received by the Companies. Any such notice, to be effective with respect
to any Change in Control, must be sent no later than twenty-four (24)
months after such Change in Control.
(f) Termination Date, Etc. "Termination Date" shall mean in the case of the
---------------------
Executive's death, his date of death, or in all other cases, the date
specified in the Notice of Termination subject to the following:
(i) if the Executive's employment is terminated by the Companies for
Cause or due to Disability, the date specified in the Companies'
Notice of Termination shall be at least thirty (30) days from the
date the Notice of Termination is given to the Executive, provided
that in the case of Disability the Executive shall not have
returned to the full-time performance of his duties during such
period of at least thirty (30) days;
(ii) if the Executive's employment is terminated for Good Reason, or
because there has been a Change in Control, the Termination Date
specified in the Executive's Notice of Termination shall not be
more than sixty (60) days from the date the Notice of Termination
is given to the Companies.
(g) Retirement. At any time beginning 150 days prior to his 68th birthday, the
----------
Executive may retire from his positions with the Companies ("Retirement")
by giving to the Companies written Notice of Retirement specifying the
Retirement Date, which Retirement Date shall be at least one hundred and
fifty (150) days from the date of such Notice of Retirement.
(h) Termination at Will. Subject to the other provisions of this Section 6, the
-------------------
Executive may terminate his employment with the Companies for any reason
other than the other reasons specified in this Section 6 ("Termination at
Will"), by giving to the Companies written Notice of Termination specifying
the Termination Date, which Termination Date shall be at least one hundred
and fifty (150) days from the date of such Notice of Termination.
7. Compensation upon Termination.
-----------------------------
Upon termination of the Executive's employment hereunder, the Executive shall be
entitled to the following benefits:
(a) If the Executive's employment is terminated by the Companies for Cause or
if the Executive's employment is terminated by the Executive other than
with either Good Reason, because there has been a Change in Control, due to
Non-Renewal, due to Termination at Will or due to Retirement, then the
Companies shall pay the Executive all amounts of Base Salary and the
employee benefits specified in clauses (a), (b) and (c) of Section 4 of
this Agreement earned or accrued hereunder
-7-
through the Termination Date but not paid as of the Termination Date
(collectively, "Accrued Compensation").
(b) If the Executive's employment by the Companies shall be terminated (1) due
to Disability, (2) by the Executive for Good Reason, (3) by the Executive
because there has been a Change in Control, (4) by the Executive's death,
(5) due to Non-Renewal, (6) due to Termination at Will, or (7) due to
Retirement, then the Executive shall be entitled to the benefits provided
below:
(i) the Companies shall pay the Executive (a) all Accrued Compensation,
(b) a bonus at a rate of the higher of (i) 35%, or (ii) the rate
that would otherwise be payable pursuant to the provisions of
Section 3(b) above for the year in which the Termination Date
occurs, of Executive's annual Base Salary as of the Termination
Date, pro rated based on the number of days in such year which
occurred prior to the Termination Date, and (c) the amounts
referred to in Sections 4(d) and (e) above, to the extent earned or
accrued hereunder through the Termination Date but unpaid as of the
Termination Date;
(ii) the Companies shall pay the Executive as severance pay (in addition
to any amounts payable as severance under law) and in lieu of any
further salary for periods subsequent to the Termination Date
(except as provided in Section 7(b)(i) above), in a single payment
an amount in cash equal to:
(c) In the event of termination due to Good Reason, Change in
Control, Non Renewal, Retirement, Disability, death or any
other termination without Cause by the Companies, the annual
Base Salary at the highest rate in effect at any time within
the ninety (90) day period ending on the Termination Date (or
if the Executive's employment is terminated due to Change in
Control, the Base Salary rate in effect immediately prior to
such Change in Control, if greater), multiplied by three (3).
(d) In the event of termination due to Termination at Will, the
sum of five hundred twenty thousand dollars ($520,000).
(iii) for a number of months equal to the lesser of (A) thirty six (36)
or (B) the number of months remaining until the Executive's 68th
birthday, the Companies shall at their expense continue on behalf
of the Executive and his dependents and beneficiaries all of the
benefits, including without limitation manager's insurance, life
insurance, disability, medical, dental and hospitalization benefits
and use of an automobile, which were being provided to the
Executive at the time Notice of Termination is given (or, if the
Executive terminates his employment for Good Reason or because a
Change in Control has occurred, the benefits provided to the
Executive at the time immediately preceding when such Good Reason
arose or such Change in Control occurred, if greater, or if such
benefits are being provided after the Executive's death, the date
of his death), provided that the Companies' obligation hereunder
with respect to the foregoing benefits shall be limited to the
extent that the Executive obtains any such benefits pursuant to a
subsequent employer's benefit plans; and
-8-
(c) The Companies shall procure life insurance on the Executive in order
to secure the payment of its obligations arising in the event of
termination under Section 6(a) hereof. Such insurance shall be payable
to the Company, which shall remain primarily liable for the payment of
all such obligations to the Executive.
As a condition to receiving the payments described in this Section 7, the
Executive shall execute and deliver to the Companies a release in the form
attached hereto as Exhibit A.
8. Confidentiality; Proprietary Rights; Competitive Activity.
---------------------------------------------------------
(a) Confidentiality. Executive recognizes and acknowledges that the technology,
---------------
developments, designs, inventions, improvements, data, methods, trade
secrets and works of authorship which the Companies own, plan or develop,
including without limitation the specifications, documentation and other
information relating to the Companies' zinc-air battery systems, and
businesses and equipment related thereto (in each case whether for their
own use or for use by their clients) are confidential and are the property
of the Companies. Executive also recognizes that the Companies' technology,
customer lists, supplier lists, proposals and procedures are confidential
and are the property of the Companies. Executive further recognizes and
acknowledges that in order to enable the Companies to perform services for
their clients, those clients may furnish to the Companies confidential
information concerning their business affairs, property, methods of
operation or other data. All of these materials and information will be
referred to below as "Proprietary Information"; provided, however, that
such information shall not include any information known generally to the
public (other than as a result of unauthorized disclosure by the
Executive).
(b) Non-Disclosure. Executive agrees that, except as directed by the Companies,
--------------
and in the ordinary course of the Companies' businesses, Executive will not
during Executive's employment with the Companies and thereafter, disclose
to any person or entity or use, directly or indirectly for Executive's own
benefit or the benefit of others, any Proprietary Information, or permit
any person to examine or make copies of any documents which may contain or
be derived from Proprietary Information; provided, however, that the
Executive's duties under this Section 8(b) shall not extend to (i) any
disclosure that may be required by law in connection with any judicial or
administrative proceeding or inquiry or (ii) any disclosure which may be
reasonably required in connection with any actions or proceedings to
enforce the Executive's rights under this Agreement. Executive agrees that
the provisions of this paragraph shall survive the termination of this
Agreement and Executive's employment by the Companies.
(c) Competitive Activity. The Executive undertakes not, directly or indirectly
--------------------
(whether as owner, partner, consultant, employee or otherwise) at any time,
during and for thirty-six (36) months following termination of his
employment with the Companies, to engage in or contribute his knowledge to
any work or activity that involves a product, process, service or
development which is then directly (in any material manner) competitive
with the Companies' zinc-air energy systems and the same as or similar to a
product, process, service or development specifically related to the
Companies' zinc-air energy system on which the Executive worked or with
respect to which the Executive had access to Proprietary Information while
with the Companies. Notwithstanding the foregoing, the Executive shall be
permitted to engage in the aforementioned proposed work or activity if the
Companies furnishes him with written consent to that effect signed by an
authorized officer of each Company.
-9-
(d) No Solicitation. During the period specified in 8(c) hereof, Executive will
---------------
not solicit or encourage any customer or supplier of either Company or of
any group, division or subsidiary of either Company, to terminate its
relationship with either Company or any such group, division or subsidiary,
and Executive will not, directly or indirectly, recruit or otherwise seek
to induce any employee of either Company or any such group, division or
subsidiary to terminate his or her employment or violate any agreement with
or duty to either Company or any such group, division or subsidiary.
(e) Equitable Relief. The Executive agrees that violations of the material
----------------
covenants in this Section 8 will cause the Companies irreparable injuries
and agrees that the Companies may enforce said covenants by seeking
injunctive or other equitable relief (in addition to any other remedies the
Companies may have at law for damages or otherwise) from a court of
competent jurisdiction. In the event such court declares these covenants to
be too broad to be specifically enforced, the covenants shall be enforced
to the largest extent as may be allowed by such court for the Companies'
protection. Executive further agrees that no breach by the Companies of, or
other failure by the Companies under this Agreement shall relieve the
Executive of any obligations under Sections 8(a) and 8(b) hereof.
9. Successors and Assigns.
----------------------
(a) This Agreement shall be binding upon and shall inure to the benefit of each
Company, its successors and assigns and the Companies shall require any
successor or assign to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Companies would be
required to perform it if no such succession or assignment had taken place.
The term the "Companies" as used herein shall include such successors and
assigns. The term "successors and assigns" as used herein shall mean a
corporation or other entity acquiring all or substantially all the assets
and business of either Company (including this Agreement) whether by
operations of law or otherwise.
(b) Subject to Section 16 hereof, neither this Agreement nor any right or
interest hereunder shall be assignable or transferable by the Executive,
his beneficiaries or legal representatives, except by will or by the laws
of descent and distribution. This Agreement shall inure to the benefit of
and be enforceable by the Executive's legal personal representative.
10. Notice.
------
For the purposes of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have
been duly given when personally delivered or sent by registered mail, postage
prepaid, addressed to the respective addresses set forth below or last given by
each party to the other. All notices and communications shall be deemed to have
been received on the date of delivery thereof or on the eighth business day
after the mailing thereof, except that notice of change of address shall be
effective only upon receipt.
The initial addresses of the parties for purposes of this Agreement shall be as
follows:
The Companies: Electric Fuel Corporation
000 Xxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
-10-
Attention: Xxxxxx Xxxxxx, President
and Electric Fuel Limited
Western Industrial Park
X.X. Xxx 000
Xxxx Xxxxxxx 00000
Xxxxxx
The Executive: Xxxxxx X. Xxxxxxx
00 Xxxxx Xxxxx
Ramat Beit Shemesh
Israel
11. Miscellaneous.
-------------
No provision of this Agreement may be modified, waived or discharged unless such
waiver, modification or discharge is agreed to in writing and signed by the
Executive and the Companies. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. No agreement or representations, oral or otherwise,
express or implied, with respect to the subject matter hereof have been made by
either party which are not expressly set forth in this Agreement.
12. Governing Law; Venue.
--------------------
This Agreement shall be governed by and construed and enforced in accordance
with the laws of Israel without application of any conflicts of laws principles
which would cause the application of the domestic substantive laws of any other
jurisdiction. Each of the Executive and the Companies hereby irrevocably waives
any objection it may now or hereafter have to the laying of venue in the courts
of the State of Israel for any legal suit or action instituted by any party to
the Agreement against any other with respect to the subject matter hereof.
13. Severability.
------------
The provisions of this Agreement shall be deemed severable, and the invalidity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof.
14. Entire Agreement.
----------------
This Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements, understandings and arrangements, oral or
written, between the parties hereto with respect to the subject matter hereof
including, without limitation the Original Agreement.
15. Joint and Several Obligations.
-----------------------------
The obligations and liabilities of each Company hereunder shall be joint and
several with the obligations and liabilities of the other Company hereunder.
-11-
16. Registration Rights.
-------------------
(a) If EFC at any time proposes to register any of its securities under the
Securities Act of 1933, as from time to time in effect (together with the
rules and regulations thereunder, all as from time to time in effect, the
"Securities Act"), for its own account or for the account of any holder of
its securities, on a form which would permit registration of Common Stock
of EFC at the time held or obtainable upon the exercise of options,
warrants or rights, or the conversion of convertible securities, at the
time held by the Executive ("Registrable Securities"), for sale to the
public under the Securities Act, EFC will each such time give notice to the
Executive of its intention to do so. Such notice shall describe such
securities and specify the form, manner and other relevant aspects of such
proposed registration. The Executive may, by written response delivered to
EFC within 15 days after the giving of any such notice, request that all or
a specified part of the Registrable Securities be included in such
registration. EFC will thereupon use its best efforts as part of its filing
of such form to effect the registration under the Securities Act of all
Registrable Securities which EFC has been so requested to register by the
Executive, to the extent required to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of the Registrable
Securities to be so registered.
(d) The Executive may, by notice to EFC specifying the intended method or
methods of disposition, given at any time and from time to time after EFC
has registered any shares of its Common Stock under the Securities Act,
request that EFC effect the registration under the Securities Act of all or
a specified part of the Registrable Securities; provided, however, that EFC
shall not be required to effect a registration pursuant to this Section
16(b) unless such registration may be effected on a Form S-3 (or any
successor or similar Form); and provided, further, that each registration
pursuant to this Section 16(b) shall cover a number of Registrable Shares
equal to not less than 2% of the aggregate number of shares of EFC Common
Stock then outstanding. EFC will then use its best efforts to effect the
registration as promptly as practicable under the Securities Act of the
Registrable Securities which EFC has been requested to register by the
Executive pursuant to the Section 16(b).
(e) Notwithstanding the provisions of Section 16(b), in the event that
Executive has requested pursuant to Section 16(b) that EFC effect a
registration of securities, and (i) the Board of EFC determines that it
would be seriously detrimental to EFC to effect a registration pursuant to
Section 16(b), or (ii) the Board of EFC determines in good faith that (A)
EFC is in possession of material, non-public information concerning an
acquisition, merger, recapitalization, consolidation, reorganization or
other material transaction by or of EFC or concerning pending or threatened
litigation and (B) disclosure of such information would jeopardize any such
transaction or litigation or otherwise materially harm EFC, then EFC shall
promptly notify Executive of the occurrence of any of the events described
in the foregoing clauses (i) or (ii). Upon the occurrence of any of the
events described in clauses (i) or (ii) hereof, EFC shall be allowed to
defer a registration of securities pursuant to Section 16(b) above, and if
a registration statement had already been filed at such time, Executive
shall not dispose of his Registrable Securities under such registration
statement until it is so advised in writing by EFC that the registration of
securities under 16(b) may be effected or resumed. Notwithstanding the
foregoing, any such deferment or prohibition on disposition shall not be in
effect for more than 90 days in any 12 months period.
-12-
(d) EFC shall not be obligated to effect any registration of Registrable
Securities under Section 16(a) hereof incidental to the registration of any
of its securities in connection with mergers, acquisitions, exchange
offers, dividend reinvestment plans or stock option or other employee
benefit plans.
(e) EFC hereby agrees to pay, or cause to be paid, all legal, accounting,
printing and other expenses (other than the fees and expenses of the
Executive's own counsel and other than underwriting discounts and
commissions attributable to the Registrable Securities) in connection with
each registration of Registrable Securities pursuant to this Section 16.
(f) In connection with each registration of Registrable Securities pursuant to
this Section 16, EFC and the Executive will enter into such agreements,
containing such terms and conditions, as are customary in connection with
public offerings, such agreements to contain, without limitation, customary
indemnification provisions, representations and warranties and opinions and
other documents to be delivered in connection therewith, and to be, if
requested, with underwriters.
(g) The provisions of this Section 16 shall be subject to any agreement entered
into by EFC, in good faith, with any underwriter of EFC's securities or any
person or entity providing financing to EFC, in each case containing
reasonable limitations on the Executive's rights and EFC's obligations
hereunder.
(h) The provisions of this Section 16 shall survive the termination of the
other provisions of this Agreement. The rights of the Executive under this
Section 16 are assignable, in whole or in part, by the Executive to any
person or other entity acquiring securities of EFC from the Executive.
(i) Notwithstanding anything in the foregoing to the contrary, the Executive
shall not demand a registration during the 180 days following an
underwritten public offering of the Common Stock of the Company.
(j) Without the prior written consent of the underwriters managing any public
offering, for a period beginning ten days immediately preceding the
effective date of any registration statement filed by the Company under the
Securities Act of 1933, as amended, and ending on the earlier of (i) 180
days after the effective date of such registration statement and (ii) the
end of the shortest period generally applicable to any "affiliate" (as
defined in the Securities Act of 1933, as amended) of EFC who is a selling
shareholder pursuant to such registration statement or who is otherwise
subject to a lockup provision, the Executive (whether or not a selling
shareholder pursuant to such registration statement) shall not sell or
otherwise transfer any securities of EFC except pursuant to such
registration statement.
-13-
IN WITNESS WHEREOF, the Companies have caused this Agreement to be executed
by its duly authorized officer and the Executive has executed this Agreement as
of the day and year first above written.
ELECTRIC FUEL CORPORATION
By: /s/ Xxxxxx Xxxxxx
------------------------
Its: President and CEO
ELECTRIC FUEL LIMITED
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxxx
------------------------ -------------------------------
Its: President and CEO Executive
-14-
Exhibit A
---------
FORM OF MUTUAL RELEASE
----------------------
This mutual release is executed and delivered by and between the
undersigned employee of Electric Fuel Corporation, a Delaware corporation
("EFC") and Electric Fuel Limited ("EFL") and the undersigned's successors,
assigns, executors, estates and personal representatives (collectively, the
"Executive"), on the one hand, and EFC and EFL and each of their respective
affiliates, agents, successors and assigns (collectively, the "Companies"), on
the other hand. For and in consideration of the Executive receiving the
compensation referred to in Section 7 of the Second Amended and Restated
Employment Agreement dated as of January 1, 2000 and other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged by the
Executive and the Companies, the Executive hereby remises, releases and forever
discharges the Companies, and the Companies hereby remise, release and forever
discharge the Executive, of and from any and all manner of action and actions,
cause and causes of actions, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, covenants, contracts, controversies, executions,
claims and demands of any kind and nature whatsoever in law or in equity, known
or unknown, against the other party which ever existed prior to the date hereof,
or may ever have on and after the date hereof with respect to matters arising,
and dealings with the other party occurring, prior to the date hereof; provided,
however, that nothing contained herein shall be construed to release the
Executive from any obligations to the Companies pursuant to the Employment
Agreement nor to release the Companies from any of their obligations to the
Executive pursuant to the Employment Agreement.
IN WITNESS WHEREOF, the Executive and the Companies have each caused this
Release to be executed as of __________________.
EXECUTIVE
______________________________
Name:
ELECTRIC FUEL CORPORATION
By:___________________________
Title:
ELECTRIC FUEL LTD.
By:___________________________
Title:
