1
Exhibit 10.46
AGREEMENT AND GENERAL RELEASE
BY AND AMONG
LITHIUM TECHNOLOGY CORPORATION
AND XXXXXX FERMENT
THIS AGREEMENT ("Agreement") is entered into and given as of this 31st
day of May, 2000 by and between Lithium Technology Corporation (the "Company"),
and Xxxxxx Ferment ("Ferment") on the following terms and conditions:
RECITALS
A. Ferment has been employed as an officer of the Company pursuant to
the terms of an Employment Agreement dated July 24, 1996 as amended and extended
(the "Ferment Employment Agreement") and served on its Board of Directors.
B. On January 19, 2000 the Company and Pacific Lithium Limited ("PLL")
entered into a Merger Agreement providing for the merger of the Company with and
into PLL (the "Merger") after the domestication of PLL to Delaware, its name
change to Ilion Technology Corporation ("Ilion") and the initial public offering
of Ilion (the "Ilion IPO").
C. Ferment desires to resign from the Company effective on the date
hereof.
E. The parties desire to enter into an amicable resolution relating to
the end of the employment relationship between the Company and Ferment.
NOW THEREFORE, for full and adequate consideration, the sufficiency of
which is hereby acknowledged by Ferment, the parties hereby agree as follows:
1. In full consideration of Ferment's execution of this Agreement, and his
agreement to be legally bound by its terms, the parties agree as
follows:
(a) The Company shall (i) pay Ferment his salary from the date hereof
until June 30, 2000 and (ii) pay to Ferment an amount equal to $77,500
(6 months salary) on June 30, 2000.
(b) Ferment shall be entitled until June 30, 2000 to receive all
benefits under the Corporation's medical insurance, disability
insurance, life insurance and other benefit plans as are then in effect
for executives of the Corporation
(c) All Company options shall be treated in accordance with the terms
of the applicable Stock Option Agreement as amended from time to time
by the Board of Directors and as further amended by any applicable
employment agreements between the Company and Ferment.
2
(d) The Company shall cause the 92,520 Ilion stock options to be
allocated to Ferment pursuant to Section 7.5 of the Merger Agreement
(the "Ilion Options") to be issued to Ferment by Ilion on the later of
the Ilion IPO or the Merger. The Ilion Options shall be 100% vested on
the date of issuance and shall be exercisable for a period of 90 days
after the shares underling the Ilion Options are (x) registered on an
effective Form S-8 Registration Statement with the Securities and
Exchange Commission and (y) eligible for sale under any contractual
lock-up agreement between Ferment and Ilion.
(e) Commencing on July 1, 2000 , in the event Ferment exercised his
COBRA rights, the Company shall pay the medical insurance premium due
on behalf of Ferment directly to the insurance provider until the
earlier of (x) the date on which the Company has paid $12,000 in
premium coverage, or (y) the date Ferment is employed and has medical
coverage with such new employer.
(f) The Company shall continue to cover Ferment under the Company's
director and officer policy for a period of one year from the date
hereof.
2. The Company agrees to support any claim by Ferment for unemployment
insurance payments.
3. Ferment hereby resigns from all positions of any nature which he holds
with the Company on the date hereof, including his position as a
director of the Company; provided, however, Ferment hereby agrees to
provide consultancy services to the Company, PLL and/or Ilion for a
period of 12 months from and after the date hereof on an as needed
basis (not to exceed three hours per month). These consultancy services
shall be rendered for no additional consideration other than as set
forth in Section 1 hereof and may be terminated by Ferment in the event
that such consultancy services interfere or restrict him from gaining
full time employment with another entity.
4. Ferment, for and in consideration of the undertakings of the Company
contained herein, and intending to be legally bound does hereby
release, remise and forever discharge the Company, as well as the
Company's current and former shareholders, directors, officers, agents,
members, managers, affiliates, attorneys and employees (the Company and
all such persons and entities collectively, the "Recipients"), of and
from any and all actions, suits, proceedings, controversies, claims
and/or demands ("Claims") whatsoever, other than for a breach of this
Agreement itself, so that Ferment shall not have any claim on or
against the Company or the Recipients, directly or indirectly, arising
from or relating to any matter undertaken, done, or omitted to be done
from the beginning of the world to the date hereof, including, without
limitation, any Claims arising out of or relating to Ferment's
employment and resignation of employment with the Company. This
releases all claims, including those of which Ferment is not aware and
those not mentioned in this Agreement.
5. The Company, for and in consideration of the undertakings of Ferment
set forth contained herein, and intending to be legally bound does
hereby release, remise and forever discharge
2
3
Ferment, of and from any and all claims whatsoever, other than for a
breach of this Agreement itself or any claim that would not be eligible
for indemnification under Section 145 of the Delaware General
Corporation Law, so that the Company shall not have any claim on or
against Ferment, directly or indirectly, arising from or relating to
any matter undertaken, done, or omitted to be done from the beginning
of the world to the date hereof, including, without limitation, any
Claims arising out of or relating to Ferment's employment with the
Company. This releases all claims, including those of which the
Company is not aware and those not mentioned in this Agreement.
6. Ferment and the Company further agree and covenant that neither of
them, nor any person, organization or other entity on their respective
behalves, will file, charge, claim, xxx or cause or permit to be filed,
charged or claimed any action for damages against each other (including
injunctive, declaratory, monetary, relief or other) involving any
matter occurring at any time since the beginning of Ferment's
employment with the Company up to date of this Agreement or involving
any continuing effects or any acts or practices which may have arisen
or occurred prior to the date of this Agreement other than for a breach
of the Agreement itself or any claim that would not be eligible for
indemnification under Section 145 of the Delaware General Corporation
Law. Ferment further agrees that he will not commence a claim, lawsuit,
or other cause of action against the Company under Title VII of the
Civil Rights Acts of 1964, as amended; the Age Discrimination in
Employment Act; the Americans with Disabilities Act; the Family and
Medical Leave Act; the Employee Retirement Income Security Act
("ERISA") and any applicable state law equivalent of the foregoing
federal statutes; or any other applicable federal, state or local
statute. Ferment recognizes and acknowledges, further, that the
obligation of the Company to provide the consideration recited herein
is expressly contingent upon his fulfillment and satisfaction of the
obligations set forth herein and that should he fail to comply with any
of the covenants or provisions set forth herein, the Company can
immediately cease the payment of any amount set forth in Section 1
which remains unpaid as liquidated damages.
7. Ferment and the Company agree that all obligations of Ferment and the
Company under the Ferment Employment Agreement shall terminate on the
date hereof other than Section 7 (Confidentiality), Section 8
(Non-Competition) and Section 9 (Remedies and Survival) shall survive.
Notwithstanding the foregoing the parties acknowledge and agree that
the one year period contained in Section 8 of the Ferment Employment
Agreement is hereby amended to six months or such shorter period agreed
to by the Company (the "Surviving Provisions").
8. The parties hereto shall not disparage or make any statements of a
negative nature regarding any of the parties to this Agreement. The
Company agrees to provide Ferment with a copy of any press release
announcing or describing the resignation of Ferment prior to the
release of the same.
9. Ferment certifies that he has read the terms of this Agreement and
General Release, that he has had an opportunity to discuss it with an
attorney, and that he understands its terms and effect. Ferment
acknowledges, further, that he is executing this Agreement and General
3
4
Release of his own volition, with a full understanding of its terms and
effects, and with the intention of releasing all claims recited herein
in exchange for the consideration described herein, which he
acknowledges is adequate and satisfactory to him. Neither the Company
nor its agents, representatives, or attorneys have made any
representations to Ferment concerning the terms or effects of this
Agreement and General Release other than those contained herein.
Ferment further acknowledges that Xxxxxxxxx, Xxxxxx & Xxxxxx and Xxxxxx
X. Xxxxxxxxx provided legal advice solely to the Company with respect
to this Agreement and that he has been advised to and has had an
opportunity to consult with his own independent legal counsel.
10. The existence and the terms of this Agreement shall remain confidential
and shall not be revealed to anyone by any party hereto.
Notwithstanding the foregoing, disclosure to a third party may occur,
to the minimum extent necessary, in the following situations:
(a) insofar as disclosure is required pursuant to a subpoena or
order issued by a court of competent jurisdiction or
legislative body;
(b) insofar as disclosure is reasonably necessary to carry out and
effectuate the terms of this Agreement; and
(c) insofar as disclosure is otherwise required by law.
11. This Agreement and the Surviving Provisions constitute the entire
agreement among the parties and supercedes any and all prior agreements
or understandings between and among the parties or any of them arising
out of or relating to the employment and termination of the employment
of Ferment. This Agreement may be changed only by agreement in writing
among the parties.
12. This Agreement shall be binding upon Ferment and his respective heirs,
successors and assigns, and shall enure to the benefit of the
Recipients and their respective heirs, successors and assigns.
13. This Agreement and any controversy which might arise herefrom will in
all respects be interpreted, enforced and governed by the laws of the
Commonwealth of Pennsylvania. The parties agree that this Agreement
will be construed as a whole according to its fair meaning and is not
to be strictly construed for or against either of the parties hereto.
14. This Agreement may be executed in any number of counterparts, each of
which together shall constitute one and the same instrument.
4
5
IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement as of the date first above written.
LITHIUM TECHNOLOGY CORPORATION
By: /s/ Xxxxx X. Xxxx
-------------------------------
Xxxxx X. Xxxx, Chairman and
Chief Executive Officer
/s/ Xxxxxx Ferment
----------------------------------------
Xxxxxx Ferment, Personally
The foregoing Agreement is accepted by
Pacific Lithium Limited
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Director
Date: June 6, 2000
5
