EXHIBIT 10.31
EXECUTION COPY
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AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AGREEMENT is entered into as of the 1st day of October, 1996, 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 Xxxxxx, Israel I.D. Number 05051616 (the "Executive").
WHEREAS, the Companies and the Executive entered into an Employment
Agreement dated as of December 15, 1993 (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
certain provisions of the Original Agreement 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.
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The term of the Executive's employment under this Agreement shall be for the
period commencing on the date hereof and ending on December 15, 2000 (the
"Initial Term"); provided, however, that the term of this Agreement shall be
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automatically extended for additional terms of two (2) years each (each, an
"Additional Term") upon the end of each 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 eighty days (180) days prior thereto
that the term of this Agreement shall not be so extended.
2. Employment.
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(a) The Executive shall be employed as the President and Chief Executive 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 member of the Steering
Committee of Xxxxx Research and Development Ltd. and may become an officer
or director of this and other companies. In addition, the Companies
acknowledge that the Executive is involved in certain technical and business
development activities and may undertake other activities. The Companies
consent to these other positions and activities so long as these do not
interfere in any material manner with the Executive'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, the Companies
shall cause the Executive to be elected to, and the Executive shall serve
on, each Board 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 the Executive is a director or officer of either
Company, a directors and officers liability policy covering the Executive
in an amount reasonably deemed satisfactory by the Executive and otherwise
containing terms and conditions reasonably deemed satisfactory by the
Executive.
3. Base Salary, Bonus and Options.
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(a) The Companies agree to pay or cause to be paid to the Executive during the
term of this Agreement a base salary at the rate of US $11,736.00 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
from time to time determine (hereinafter referred to as the "Base Salary").
On each anniversary of this Agreement, the Base Salary shall be adjusted
upward in an amount equal to the greater of 3% or in an amount equal to the
excess, if any, of any increase in the Israeli Consumer Price Index over
any devaluation in currency of Israel compared to the U.S. Dollar, in each
case during the year immediately preceding such anniversary. Such Base
Salary shall be payable in equal monthly installments.
(b) The Companies agree to pay or cause to be paid to the Executive on each
anniversary of this Agreement a bonus of at least 50% (but which bonus may
be in excess of 50%) of the annual Base Salary based on the attainment of
the Companies' budgeted (as mutually approved by the Executive and the
Boards) results for such period and such other goals, if any, as may be
mutually agreeable to the Executive and the Boards; provided, however, that
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if the Companies have a positive net earnings before taxes and
extraordinary and other nonrecurring items ("Net Earnings") in any fiscal
year and such Net Earnings are at least equal to the Companies' budgeted
(as mutually approved by the Executive and the Boards)
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Net Earnings for such period, the Executive shall, in lieu of the bonus
otherwise payable under the preceding provisions of this Section 3(b), be
paid a bonus equal to not less than 2% of such Net Earnings if such amount
would exceed the amount of the bonus otherwise payable under the preceding
provisions of this Section 3(b). Notwithstanding the foregoing, until such
time as the Companies have Net Earnings, the Boards may award the Executive
an annual bonus based on the achievement of objectives established in
advance from time to time by the Boards in their sole discretion, provided,
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that any such bonus shall be no less than 25% of the annual Base Salary if
the Companies have attained at least 80% of the Companies' budgeted results
for such period.
(c) 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 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,
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that in no event shall the EFL Base Salary in any year be greater than the
Base Salary for that year.
(d) In connection with his employment by the Companies and in addition to the
compensation referred to in Section 3(a)-(c), from time to time the
Executive may be granted options ("Options"), under the EFC 1993 Stock
Option and Restricted Purchase Plan or otherwise to purchase shares of
EFC's Common Stock $.01 per value per share (the "Common Stock") based on
the Executive's performance and achievements on behalf of the Company. The
Options shall be on terms and conditions to be determined from time to time
by the Boards.
4. Employee Benefits.
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The Executive shall be entitled to the following benefits:
(a) Manager's Insurance. The Companies will pay to an insurance company of the
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Executive's choice, as premiums for manager's insurance for the Executive,
an amount equal to 13.33% of each monthly payment of the EFL Base Salary
together with 2.5% of the EFL Base Salary for disability, and will deduct
from each monthly payment of the EFL Base Salary and pay to such insurance
company an amount equal to 5% of each monthly payment of the EFL 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.
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(b) Education Fund (Keren Hishtalmut). The Companies will contribute to an
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education fund of the Executive's choice an amount equal to 7.5% of each
monthly payment of the EFL Base Salary, and will deduct from each monthly
payment of the EFL Base Salary and contribute to such education fund an
additional amount equal to 2.5% of each such monthly payment of the EFL 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
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equal to the number of work days specified in the table below opposite the
period for which the Executive has been employed by EFC or any of its
subsidiaries, or by Xxx Industries Limited or any of its subsidiaries or by
Advanced Materials Technology, Inc. or any of its subsidiaries:
Period of Employment Days of Vacation
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Less than three complete years 15
Three complete years or more, but less than six complete years 19
Six complete years or more, but less than eight complete years 21
Eight complete years or more 24
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)
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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; and provided, further, that, effective
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as of the execution of this Agreement, the Executive shall be irrevocably
deemed to have exercised his option to have all of his accumulated and
unused vacation days in excess of two (2) times his current annual
entitlement of vacation days as of such execution converted into the right
to receive such a cash payment. 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
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leave; provided, however, that the Executive shall not be entitled to sick
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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
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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. The Companies shall make an automobile available to the
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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 model
Volkswagen Caravelle, 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 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
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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
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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.
(h) Non-Renewal Payments and Benefits. Upon termination of the Executive's
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employment hereunder for any reason other than for Cause, including at the
conclusion of the Initial Term (or Additional Term, if this Agreement shall
be extended beyond the Initial Term), the Executive shall receive payments
and options equal to the amounts set forth in Sections 7(b)(i), (ii) and
(iv) of this Agreement and shall be entitled to the benefits specified in
Section 7(b)(iii) of this Agreement if either (i) the Companies shall have
given the notice referred to in Section 1 hereof; or (ii) the Executive has
been employed by EFC or any of its subsidiaries, or by Xxx Industries
Limited or any of its subsidiaries, or by Advanced Materials Technology,
Inc. or any of its subsidiaries for a period of ten complete years or more.
The obligation to make the payments required by this Section 4(h) may, if
approved by the Compensation Committee of the Board of EFC, be funded upon
the vesting of such obligation by a rabbi trust established by the
Companies.
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5. Expenses.
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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.
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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.
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(b) Disability. The Companies may terminate the Executive's employment after
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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
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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 knowledge 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.
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(d) Good Reason. The Executive may terminate his employment under this Agreement
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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 or a failure by the
Companies to increase the Executive's Base Salary within any twelve
(12) month period by the average percentage increase during such
period of the greater of (a) the base salaries of other senior
executive employees or (b) the annual average increase in the
salaries of all of the employees of the Companies;
(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
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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.
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(e) Change in Control. The Executive may terminate this Agreement if there is a
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"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 October 1, 1993, 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
(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 twelve (12)
months after such Change in Control.
(f) Termination Date, Etc. "Termination Date" shall mean in the case of the
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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
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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; and
(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.
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7. Compensation Upon Termination.
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Upon termination of the Executive's employment hereunder, other than because of
the expiration of the term of such employment pursuant to Section 1 hereof (in
which event the Executive shall receive the amounts and benefits specified in
Section 4(h) hereof), the Executive shall be entitled to the following benefits:
(a) If the Executive's employment is terminated by the Companies for Cause or
Disability or by the Executive (other than for Good Reason and other than
because there has been a Change in Control), 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 through the Termination Date but not paid as of the Termination
Date (collectively, "Accrued Compensation"); provided, however, that unless
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the Executive's employment is terminated by the Companies for
Cause, the Executive shall also be entitled to payment of a pro rata (based
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on number of days elapsed since the immediately preceding anniversary
of this Agreement) portion of the bonus due pursuant to Section 3(b) hereof
for the period ending with the anniversary of this Agreement immediately
following such termination and provided, further, that if the Executive's
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employment is terminated by the Companies for Disability and
the Termination Date is on or after the third anniversary of the date of
this Agreement, then the Executive shall be entitled to the benefits
specified in clauses (i), (ii), (iii) and (iv) of Section 7(b) hereof.
(b) If the Executive's employment by the Companies shall be terminated (1) by
the Companies other than for Cause or (subject to the second proviso to
Section 7(a) hereof) Disability, (2) by the Executive for Good Reason, (3)
by the Executive because there has been a Change in Control, or (4) by the
Executive's death, then the Executive shall be entitled to the benefits
provided below:
(i) the Companies shall pay the Executive all Accrued Compensation and
the entire bonus due pursuant to Section 3(b) hereof for the period
ending with the anniversary of this Agreement immediately following
such termination;
(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, in a single
payment an amount in cash equal to thirty six (36) times the
Executive's Base Salary at the highest rate in effect at any time
within the ninety (90) day period ending on the date the Notice of
Termination is given (or if the Executive's employment is terminated
after a Change in Control, the Executive's Base Salary immediately
prior to such Change in Control, if greater) plus an amount equal to
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the greater of (x) the average of all bonuses paid to the Executive
during the three most recent full calendar years immediately preceding
the Termination Date or (y) all bonuses paid to the
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Executive during the most recent full calendar year immediately
preceding the Termination Date;
(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 65th
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
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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
(iv) all restrictions on any outstanding awards (including restricted share
option awards) granted to the Executive shall lapse and such awards
shall immediately become fully (100%) vested, and the Option and any
share options granted to the Executive shall become fully (100%)
vested and shall become immediately exercisable and the Executive
shall be entitled to exercise the Option and any other share options
held by him by delivery of a promissory note in form and substance
reasonably satisfactory to EFC.
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.
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(a) Confidentiality. Executive recognizes and acknowledges that the technology,
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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
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of operation or other data. All of these materials and information will be
referred to below as "Proprietary Information"; provided, however, that such
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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,
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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
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(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's 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.
(d) No Solicitation. During the period specified in 8(c) hereof, Executive will
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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
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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
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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.
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(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.
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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 Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Chairman
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The Executive: Xxxxxx Xxxxxx
c/o Electric Fuel Corporation
5 Kiryat Mada Street
Har Hotzvim Science Park
P.O. Box 23073
91230 Xxxxxxxxx, Xxxxxx
00. Miscellaneous.
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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.
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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.
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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.
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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.
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.
(b) 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).
(c) 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.
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(d) 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.
(e) 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.
(f) 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.
(g) 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.
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:______________________
Its:
ELECTRIC FUEL LIMITED
By: __________________________ _____________________________
Its: Executive
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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 Amended and Restated Employment
Agreement dated as of ___________, 1996 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
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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:
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