EXHIBIT
10.2
AGREEMENT
This
Agreement (the “ Agreement ”) by and between
Medis Technologies Ltd., a Delaware corporation (the
“Company”) with executive offices at 805 Third Avenue,
New York, New York 10022, and Thomas Finn (“ Finn
”) is hereby entered into on February 17, 2009 and effective
as of January 13, 2009 (the “ Effective Date
”).
RECITALS
WHEREAS,
the Company wishes to employ Finn, effective as of the Effective
Date through the Employment Term (as defined below), as its
Executive Vice President, and Finn wishes to be employed by the
Company in such capacity, pursuant to the terms and conditions set
forth herein.
NOW,
THEREFORE, in consideration of the mutual promises, terms,
covenants and conditions set forth herein and the performance of
each, it is hereby agreed as follows:
AGREEMENTS
1.
[ Intentionally Omitted ]
2.
Employment and Duties .
(a)
During the Employment Term (as defined below), the Company shall
employ Finn in the position of Executive Vice President of the
Company (and such other positions consistent with his status as the
Executive Vice President of the Company as shall be reasonably
assigned to Finn by the Company’s Chief Executive Officer or
Board of Directors of the Company (the “ Board
”)). Finn shall report to the Chief Executive Officer. Finn
shall have all of the normal and customary responsibilities, duties
and authorities customarily accorded to, and expected of, such
position, including those as may be reasonably established by the
Chief Executive Officer or the Board; provided that the nature of
such responsibilities, duties and authorities shall not be
materially inconsistent with Finn’s positions and duties
hereunder or with those customarily accorded to, and expected of,
those of an equivalent role of a company similar to the
Company.
(b)
Finn
hereby accepts this employment upon the terms and conditions
contained herein and agrees to devote his full business time,
attention and efforts to promote and further the business of the
Company. Finn shall not, during the Employment Term, be engaged in
any other business activity pursued for gain, profit or other
pecuniary advantage without the prior consent of the Board.
Notwithstanding the foregoing limitations, provided that such
activities neither interfere with the discharge of the employment
duties and responsibilities of Finn hereunder nor violate the terms
of Section 4 hereof, Finn shall be able to: (i) devote occasional
business time to charitable, industry trade group and community
activities and making personal passive investments in publicly
traded securities in general and in competitors of the Company and
its subsidiaries and affiliates; provided that Finn shall not in
any event own more than 2% of the issued and outstanding securities
of any such publicly traded company.
(c)
The
Company may, from time to time, require Finn to travel in
reasonable amounts in carrying out his employment duties pursuant
to this Agreement, including but not limited to the Company’s
other offices and facilities.
(d)
Finn
faithfully shall adhere to, execute and fulfill all policies
lawfully established by the Chief Executive Officer and/or the
Board acting in good faith.
3.
Compensation . For all employment services
rendered by Finn in any capacity required hereunder, the Company
shall compensate Finn as follows:
(a)
Base
Salary .
Commencing the Effective Date, Finn shall be paid a base salary at
a rate of $220,000 per year (or pro rated amount for any partial
period (the “ Base Salary ”)), payable on a
regular basis in accordance with the Company’s standard
payroll procedure, but no less frequently than monthly;
provided , however , that Finn’s Base Salary
from the Effective Date through March 14, 2009 shall be payable at
or promptly after the end of such term. For the Initial Employment
Term and for each successive Renewal Employment Term (as defined in
Section 5 hereof), the Base Salary shall be reviewed by the
CEO after consultation with Finn and may be increased (but not
decreased). This process of reviewing the Base Salary and assessing
performance will commence on the 6 th
month
anniversary of this Agreement, with respect to the Initial
Employment Term, and thereafter no less frequently than once a
year.
(b)
Equity
Incentive Compensation. Subject
to the penultimate sentence of this Section 3(b), the Company shall
issue to Finn restricted shares of the Company’s common stock
(the “ Restricted Shares ”) under the
Company’s 2007 Equity Incentive Plan (the “
Incentive Plan ”). The Restricted Shares, the initial
amount of which shall be determined in accordance with Section 3(d)
hereof as if it were a Bonus, but estimated to be no less than
150,000 Restricted Shares, shall have such terms and conditions
that are no less favorable to Finn than the terms and conditions
applicable to restricted stock granted at or about the same time to
other executive officers of the Company. Notwithstanding the
foregoing, the grant of the Restricted Shares shall be subject to
(i) the Company obtaining the approval of its stockholders, at the
next annual meeting of stockholders, to increase the number of
shares available under the Incentive Plan, which approval the Board
of Directors of the Company shall undertake best efforts to
recommend and obtain, and the Restricted Shares shall not be
granted and the Company’s obligations related to the
Restricted Shares shall be terminated and of no force and effect in
the event of the Company’s failure to so obtain stockholder
approval and (ii) Finn achieving performance goals reasonably set
by the Board or the Compensation Committee thereof (the “
Compensation Committee ”) in good faith. The Company
may at any time and from time to time in its sole discretion
consider Finn for future annual or other grants of stock options,
restricted shares or other forms of equity incentive
compensation.
(c)
Vacation
and Leave. During
the Employment Term, Finn shall be entitled to 4 weeks (i.e., 20
days) paid vacation per year, pro-rated for partial years (the
“ Annual Vacation Days ”); provided, however,
that Finn shall not be compensated for any unused Annual Vacation
Days or Carryforward Vacation Days (as defined below) upon
termination of this Agreement or Finn’s employment by the
Company. Finn shall be entitled to carry forward his unused Annual
Vacation Days from each year, but only up to the lesser of (i)
thirty percent (30%) of the Annual Vacation Days or (ii) the number
of unused Annual Vacation Days from that year (by way of
illustration,
if no vacation is taken in a particular year, then 6 days will be
carried forward to the next year (30% of 20 days), but if 15 days
of vacation are taken in a particular year, then 5 days will be
carried forward to the next year) (the “ Carryforward
Vacation Days ”). Finn shall be entitled to disability
and other leave as provided by the policies of the Company from
time to time.
(d)
Incentive
Bonus Plan . Commencing
on and for the fiscal year ending December 31, 2009, and annually
thereafter until termination of this Agreement, Finn shall be
eligible to receive a performance bonus (the “ Bonus
”), which shall constitute a wage, based upon the
Company’s level of achievement of pre-established performance
goals that shall be determined by the Chief Executive Officer and
the Compensation Committee (acting in good faith) pursuant to
discussions to be commenced in the first quarter of 2009, but only
after consultation with Finn, based on the Board approved budget
for such year (excluding extraordinary gains). Such pre-established
performance goals shall be reduced to writing and delivered to Finn
upon adoption prior to the commencement of the fiscal year to which
such pre-established performance goals relate or, in the event of
the Bonus for fiscal 2009, upon confirmation of the aforementioned
pre-established performance goals. The Company shall review
Finn’s performance and the Bonus for fiscal year 2009
promptly after June 30, 2009, which shall include consultation with
Finn, and the Company shall make such adjustments to the Bonus for
such fiscal year as shall be determined pursuant to such review.
The Bonus, if any, will be paid to Finn in accordance with policies
established by the Board or the Compensation Committee, from time
to time, with respect to the method and timing for payment of
bonuses to senior executive officers of the Company generally, and
shall be paid pro rata for partial fiscal years.
(e)
Benefits
and Other Compensation . During
the Employment Term, Finn shall be entitled to receive additional
benefits and compensation from the Company in such form and to such
extent as specified below:
|
(i)
|
The
Company shall include Finn as a covered insured under its Directors
and Officers insurance policy and any other liability or similar
insurance policies (“ Insurance ”), if provided
to other senior executives of the Company. The Company shall
provide a copy to Finn of its policies of Insurance, together with
all amendments thereto or replacements thereof, from time to time.
If this Agreement is terminated for any reason, the Company shall
continue to provide such documents to Finn for a period of 5 years
following the date of termination.
|
|
(ii)
|
The
Company shall provide Finn any and all other benefits of employment
generally provided to other senior executive officers of the
Company, which may include, for example and without limitation,
health insurance, medical insurance, life insurance, disability
insurance, unemployment or workers’ compensation insurance,
profit sharing, 401(k), and other employee benefits.
|
|
(iii)
|
Reimbursement
for all business travel and other out-of-pocket expenses actually,
reasonably and properly incurred by Finn in the performance of his
services pursuant to this Agreement. All reimbursable expenses
shall be appropriately documented in reasonable detail by Finn upon
submission of any request for reimbursement, and in a format and
manner consistent with the Company’s expense reporting
policy, and shall be reimbursed no less than on a monthly
basis.
|
|
(iv)
|
An
automobile allowance of $400.00 per month during the Employment
Term.
|
|
(v)
|
To
the extent provided to other executive officers of the Company, the
Company shall enter into an indemnification agreement with Finn
that would provide for indemnification rights to Finn separate and
distinct from the indemnification rights that would be provided to
Finn pursuant to the Company’s By-Laws in effect from time to
time. Nothing in this Section 3(e)(v) shall be deemed to require
the Company to enter into any such agreement with Finn or otherwise
to provide indemnification rights to Finn that are different from
the other senior executive officers of the Company.
|
(f)
Payment.
Except
as otherwise provided herein, payment of all compensation and
benefits to Finn hereunder shall be made in accordance with the
relevant Company policies in effect from time to time, including
normal payroll practices, and shall be subject to all applicable
employment and withholding taxes and source deductions.
(g)
Cessation
of Employment . In
the event Finn shall cease to be employed by the Company for any
reason, Finn’s compensation and benefits with respect to such
employment shall cease on the date of such event, except as
otherwise provided herein.
4.
Non-Competition Agreement .
(a)
Finn
shall not, without the prior consent of the Board, during the
Employment Term and for the Applicable Period, for himself or on
behalf of, or in conjunction with, any other person, company,
partnership, corporation, entity or business of whatever nature,
either directly or indirectly:
|
(i)
|
engage,
as an officer, director, shareholder, member, manager, owner,
partner, joint venturer, trustee, or in a managerial capacity,
whether as an executive, independent contractor, agent, consultant
or advisor, or as a sales representative, in any business selling
any products or services that compete with the products or services
offered by the Company at the later of the time of termination of
Finn’s consultancy or employment, as
|
|
|
the
case may be, hereunder, anywhere in the United States and in any
other country in which the Company does business;
|
|
(ii)
|
solicit
any person who is at that time, or at any time within the preceding
ninety (90) days of the time of the proposed call was, an employee
of the Company, for the purpose, or with the intent, of enticing
such employee away from, or out of, the employ of the Company or
for the purpose of hiring such employee for Finn or any other
Person; provided , however , that this Section
4(a)(ii) shall not apply to any person who independently contacts
Finn during the Applicable Period in response to a general
solicitation by a person or entity with which Finn is affiliated
published in a newspaper, website or other publication of general
circulation that is not specifically targeted at the
Company’s employees; or
|
|
(iii)
|
solicit
any person or entity that is at that time, or that was, at any time
within the twelve (12) months prior to that time, a customer of the
Company, for the purpose of soliciting or selling products or
services offered by the Company.
|
For
the purposes of this Agreement the term “ Applicable
Period ” shall mean twelve (12) months from the date Finn
ceases to be an employee of the Company, regardless of the reason
for separation.
(b)
Because of the difficulty of measuring economic losses to the
Company as a result of a breach of the foregoing covenant, and
because of the immediate and irreparable damage that could be
caused to the Company for which it would have no other adequate
remedy, Finn agrees that the foregoing covenant may be enforced by
the Company in the event of breach by him, by injunctions and
restraining orders, without the necessity of posting a bond or
other security.
(c)
It is
agreed by the parties that the foregoing covenants in this Section
4 impose a reasonable restraint on Finn in light of the activities,
business and plans of the Company on the date of the execution of
this Agreement, and Finn’s fees or compensation, as the case
may be, hereunder, in part, constitutes consideration for this
covenant; but it is also the intent of the Company and Finn that
such covenants be construed and enforced in accordance with any
change in the activities, business or plans of the Company
throughout the term of this Agreement.
(d)
The
covenants in this Section 4 are severable and separate, and the
unenforceability of any specific covenant or part thereof shall not
affect the remainder of such covenant or provisions of any other
covenant.
(e)
All
of the covenants in this Section 4 shall be construed as an
agreement independent of any other provision in this Agreement, and
the existence of any claim or cause of action of Finn against the
Company, whether predicated on this Agreement or otherwise,
shall
not
constitute a defense to the enforcement of such covenants; provided
that the Company is not in breach of any obligation with respect to
the payment of any compensation or Severance (as defined in Section
5(e) hereof) and the Company’s breach of such obligation is a
result of circumstances other than Finn’s breach of Section 4
or Section 7 hereof.
(f)
Notwithstanding any of the foregoing, if any applicable law shall
reduce the time period or scope during which Finn shall be
prohibited from engaging in any competitive activity described in
Section 4(a) hereof, the period of time or scope for which Finn
shall be prohibited pursuant to Section 4(a) hereof shall be the
maximum time or scope permitted by law.
5.
Term; Termination; Rights on Termination . The
term of employment under this Agreement shall have begun on the
Effective Date and shall continue until December 31, 2011 (the
“ Initial Employment Term ”) and, unless
terminated as herein provided or otherwise modified by mutual
agreement, shall be automatically renewed at the end of the Initial
Employment Term for a period of one (1) year and thereafter for
successive one (1) year terms (each such one (1) year term, a
“ Renewal Employment Term ”), on the same terms
and conditions contained herein with such changes, additions,
deletions or modifications as may be agreed to in writing by Finn
and the Company (the Initial Employment Term and each Renewal
Employment Term, each an “ Employment Term ”),
until either party notifies the other party in writing at least one
hundred twenty (120) days prior to the expiration of the then
current Employment Term that he or it does not want the Employment
Term to so renew. It is acknowledged and understood that this
Agreement shall remain in full force and effect during any notice
period until the actual termination date hereof, subject to the
terms hereof. This Agreement and Finn’s consultancy or
employment, as the case may be, may be terminated in any one of the
following ways:
(a)
Death
. Finn’s
employment hereunder shall immediately terminate upon his death,
and the Company shall pay to Finn’s estate (i) all Base
Salary earned as of the date of his death but unpaid, (ii) Bonus
amounts, if any, earned as of the date of his death but unpaid and
(iii) all other unpaid benefits from the period prior to the date
of his death.
(b)
Disability
. If,
as a result of Finn’s incapacity due to physical or mental
illness, Finn shall not have performed his duties hereunder on a
full-time basis for three (3) consecutive months or for one hundred
twenty (120) days in any twelve (12) month period, Finn’s
employment under this Agreement may be terminated by the Company
upon ten (10) days written notice if Finn is unable to resume his
full time duties at the conclusion of such notice period.
Finn’s compensation during any period of disability prior to
the effective date of such termination shall be the amounts
normally payable to him in accordance with his then current annual
Base Salary, reduced by the amounts of disability pay, if any, paid
to Finn under any Company disability program. Finn shall not be
entitled to any further salary or other compensation from the
Company for any period subsequent to the effective date of such
termination, except for (i) all Base Salary earned as of the date
of such termination but unpaid, (ii) Bonus amounts, if any, earned
as of the date of his termination but unpaid, (iii) all other
unpaid benefits from the period prior to the date of such
termination, and (iv) any other pay and benefits, if any, in
accordance with then existing severance policies of the Company and
Company benefit plans.
(c)
Termination
by Company .
|
(i)
|
For
Cause . The
Company may terminate this Agreement immediately upon written
notice to Finn for cause, which shall mean: (1) Finn’s
willful misconduct or gross negligence in the performance or
nonperformance of any of Finn’s material duties and
responsibilities hereunder; (2) Finn’s continued and willful
refusal promptly to follow any lawful direction of the Chief
Executive Officer or the Board consistent with the provisions for
such contained herein, provided that if Finn disagrees in good
faith with such lawful direction in writing within a reasonable
period of time after such lawful direction is given, then the Chief
Executive Office
|
|
