EXHIBIT 10.39
ELECTRIC FUEL CORPORATION
December 10, 1997
Xx. Xxxx X. Xxxxx
c/o Enterprises Inc.
River Park House
0000 Xxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Re: Amendment No. 1 to Voting Rights Agreement
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Dear Xxxx:
Each of Electric Fuel Corporation, a Delaware corporation (the "Company"),
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Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxx (each, a "Stockholder" and collectively with
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you, the "Stockholders") hereby agrees with you as follows:
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1. Reference to Voting Rights Agreement; Definitions. Reference is hereby
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made to the Voting Rights Agreement dated as of September 30, 1996 by and among
the Company and the Stockholders (the "Voting Rights Agreement"). Terms defined
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in the Voting Rights Agreement and not otherwise defined herein are used herein
with the meaning so defined.
2. Amendment to Voting Rights Agreement. The Company and the Stockholders
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hereby agree that, effective as of the date hereof, the Voting Rights Agreement
is hereby amended as follows:
(a) Amendment to Section 1. Election of Directors
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Section 1 of the Voting Rights Agreement is hereby amended in its entirety
as follows:
"1. Election of Directors. The Company shall use its best efforts to
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cause Xxxxxxxx X. Xxxxxx to be designated as Xxxx X. Xxxxx' nominee for
election to the Board of Directors of the Company (the "Board"); (i)
immediately upon satisfaction of all applicable governmental and corporate
requirements, which the parties shall use all reasonable efforts to
accomplish as expeditiously as
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possible, after the Closing; (ii) after each of Xxxx X. Xxxxx and Xxxxxxxx
X. Xxxxxx has executed a confidentiality agreement in the form attached
hereto as Exhibit A; and (iii) for so long as Xxxx X. Xxxxx or his heirs or
The Xxxx Xxxxx Charitable Foundation hold in excess of 1,375,000 shares of
Common Stock. In the event Xxxxxxxx X. Xxxxxx shall cease to serve as a
member of the Board of Directors for any reason, Xxxx X. Xxxxx, or if Xx.
Xxxxx is then serving as a director of the Company, an individual
designated by Xx. Xxxxx subject to the approval of the Company (the
"Alternate Director") shall be nominated for election and be a successor to
the rights of Xx. Xxxxxx in accordance with the terms of this Section 1.
Subject to the terms and conditions hereof, until the later of (i) December
10, 2002 or (ii) the fifth Annual Meeting of Stockholders occurring after
December 10, 1997, each Stockholder agrees to vote all shares of Common
Stock or other voting securities of the Company over which such Stockholder
has voting control, whether directly or indirectly, and to take all other
necessary or desirable actions within his control (whether as a
stockholder, director or officer of the Company or otherwise, including
without limitation attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of
meetings), so that each of Xxxxxxxx X. Xxxxxx (or, if applicable, the
Alternate Director), Xxxxxx X. Xxxxxxx and Xxxxxx Xxxxxx (collectively, the
"Directors") shall serve as members of the Board."
(b) Amendment to Section 3: Section 3 of the Voting Rights Agreement
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is hereby amended in its entirety as follows:
"3. Termination. In addition to the ability to exercise the remedies
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provided for in Section 6 hereof, each Director's obligations under this
Agreement shall terminate with respect to each other Director if such other
Director does not nominate any of the Directors or does not vote his Common
Stock for any of the Directors, whether or not such other Director's
failure to vote to elect such Director as director of the Company was in
violation of this Agreement."
(c) Addition of Foundation as Party. By execution of this Amendment,
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Xxxx X. Xxxxx and Xxxxxxxx X. Xxxxxx, as Co-Trustees of The Xxxx Xxxxx
Charitable Foundation under Deed of Trust dated May 28, 1997 (the
"Foundation") hereby agrees to be joined as a party to the Voting Rights
Agreement as a Stockholder as if it were an original Stockholder party
thereto and acknowledges and agrees that the shares of Common Stock of the
Company held by the Foundation at any time during the term of the Voting
Rights Agreement shall be subject to and bound by the Voting Rights
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Agreement, and the other parties hereto agree that it shall have the benefits
of the Voting Rights Agreement, to the same extent as the other Stockholders
party thereto.
(d) Miscellaneous. Except to the extent specifically amended hereby,
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the provisions of the Voting Rights Agreement shall remain unmodified and
the Voting Rights Agreement, as amended hereby, is hereby confirmed as
being in full force and effect. This Amendment may be executed in any
number of counterparts which together shall constitute one instrument,
shall be governed by and construed in accordance with the laws of State of
Delaware, without regard to any conflicts or choice of law principles which
would cause the application of the internal laws of any jurisdiction other
than the State of Delaware and shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
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If the foregoing corresponds with your understanding of the Agreement by
and among the Company and you, kindly sign this letter and the accompanying
copies hereof in the appropriate space below and return the same to the Company,
upon which this letter shall become a binding agreement by and among the Company
and you as of the date hereof.
Very truly yours,
ELECTRIC FUEL CORPORATION
By:________________________________
Name:
Title:
________________________________
Xxxxxx X. Xxxxxxx
________________________________
Xxxxxx Xxxxxx
Agreed and accepted:
_______________________________
Xxxx X. Xxxxx
THE XXXX XXXXX CHARITABLE FOUNDATION
UNDER DEED OF TRUST DATED MAY 28, 1997.
By:_________________________________________
Xxxx X. Xxxxx, Co-trustee
By: ________________________________________
Xxxxxxxx X. Xxxxxx, Co-trustee
