EXHIBIT
10.4
SEVERANCE
AGREEMENT
This
Severance Agreement (this “ Agreement ”) is made
and entered into as of the 16 th
day of
February, 2009, by and between MEDIS TECHNOLOGIES LTD. , a
Delaware corporation, having a principal place of business at 805
Third Avenue, New York, New York 10022 (the “
Company ”) and HOWARD WEINGROW , an individual
residing at 51 Wheatley Road, Old Westbury, New
York 11568 (the “ Consultant
”).
WHEREAS , the
Company and the Consultant are parties to that certain Consulting
Agreement, dated as of February 9, 2008, a copy which is attached
hereto as Exhibit A (the “ Consulting Agreement
”); and
WHEREAS
, the
Company and the Consultant desire to set forth herein their
agreement with respect to all remuneration to be paid to the
Consultant in connection with the expiration of his consulting
relationship with the Company; and
WHEREAS
,
capitalized terms used herein and not otherwise defined shall have
the meanings ascribed to such terms in the Consulting
Agreement.
NOW, THEREFORE , in
consideration of the mutual covenants herein contained, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereof agree as
follows:
(a)
Upon
the expiration of the Initial Term, the Company shall pay to
Consultant, his heirs or the legal
representatives of his estate, an amount equal to One Hundred
Eighty Thousand Dollars ($180,000) (the “ Severance
Amount ”), payable during the twelve (12) month period
commencing on the date of the expiration of the Initial Term (the
“ Severance Period ”). The Severance
Amount shall be payable at the times and in the manner the Company
shall determine; provided, however, no less frequently than on a
monthly basis. The obligation of the Company to make any
of the payments to Consultant required pursuant to the terms of
this Agreement shall be conditioned upon the delivery by the
Consultant of a general release, in form and substance reasonably
satisfactory to the Company, by which the Consultant
unconditionally, without any reservation, irrevocably and forever
releases and discharges the Company and its affiliates, and their
respective shareholders, members, partners, officers, directors,
managers and employees (collectively, the “ Released
Parties ”) of and from any and all claims, causes of
action or demands, that the Consultant then has, or may have,
against any of the Released Parties, other than claims arising
under this Agreement. The Company shall also deliver a
general release, in form and substance reasonably satisfactory to
the Consultant, by which the Company unconditionally, without any
reservation, irrevocably and forever releases and discharges the
Consultant, his heirs and the legal representatives of his estate
(collectively, the “ Consultant Released Parties
”) of and from any and all claims, causes of action or
demands, that the Company then has, or may have, against any of the
Consultant Released Parties, other than claims arising under this
Agreement.
(b)
In the
event that the Company achieves Five Million Dollars ($5,000,000)
in gross revenue during each of two consecutive fiscal
quarters during the Severance Period, the
Company
shall be obligated to pay, and the Consultant shall be entitled to
receive, an additional Thirty Thousand Dollar ($30,000) severance
payment (the “ Bonus Severance Amount
”). The Bonus Severance Amount shall be paid in a
lump-sum installment on a date which is no later than thirty days
after the last day of the applicable fiscal quarter.
(c)
The
Consultant acknowledges and agrees that he shall have no further
right to receive, and the Company shall have no obligation to pay,
any amount in excess of the Severance Amount and the Bonus
Severance Amount, if applicable, upon the ex
