Exhibit 10.9
TERMINATION AGREEMENT
TERMINATION AGREEMENT, made as of the 5th day of April, 2000, by and
between H POWER CORP., a Delaware corporation having its principal place of
business at 0000 Xxxxx Xxxxxx, Xxxxxxx, Xxx Xxxxxx 00000 (the "Company"), and
Xxxxxx Xxxxxxxxx, an individual residing at 000 Xxxxx Xxxxx Xxxx, Xxxxxxxxx,
X.X. 00000 (the "Consultant").
W I T N E S S E T H :
WHEREAS, the Company and the Consultant are parties to a Consulting
Agreement, dated July 28, 1999 (the "Consulting Agreement"), pursuant to which
the Consultant has provided consulting services to the Company on
corporate-related matters, including the Company's capital raising activities;
and
WHEREAS, the Company and the Consultant deem it in their respective
best interests to terminate the Consulting Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. TERMINATION. Effective as of the date hereof, the Consulting Agreement,
and each of the terms, provisions and covenants contained therein, shall
terminate and be of no further force or effect; PROVIDED, HOWEVER, that the
option grant and registration rights provisions contained in Sections 4(c) and
12, respectively, of the Consulting Agreement shall continue in full force and
effect.
2. TERMINATION BENEFITS. Pursuant to this Termination Agreement, the
Company shall provide the Consultant with the following benefits, and no other:
(a) a lump sum cash payment of $1,000,000;
(b) options to purchase 60,000 shares (the "Options") of the
Company's common stock (as same may be adjusted for any stock
splits or dividends) at an exercise price per share equal to
the IPO price of the Company's common stock;
(c) for a period of ten (10) years from the date hereof, health
insurance for the Consultant, his spouse and any minor
dependents substantially equivalent to the health insurance
package currently provided to the Company's executive
officers;
(d) the Consultant may retain possession of any computer
furniture, hardware and/or software that has been provided by
the Company for use at the Consultant's residential offices;
(e) the Company shall include all shares of common stock
underlying the Options in any Registration Statement on Form
S-8 filed by the Company with respect to options granted to
the Company's employees or officers, and if such registration
statement is not filed within six months prior to the
expiration date of the Options, the Company shall amend the
underlying option agreement to extend the expiration date of
the Options for a period of not less than six (6) months after
the effective date of the Registration Statement on Form S-8;
and
(f) transfer into the Consultant's name, at the Company's expense,
the automobile lease currently in place for the Consultant's
benefit, with all future lease payments to be the sole
responsibility and obligation of the Consultant.
3. RELEASE OF CLAIMS
(a) In consideration of the benefits offered herein, Consultant
hereby agrees to release and discharge the Company, and the
Company's officers, directors, employees, and agents
(collectively, the "Released Parties") from any and all
claims, causes of action and demands of every kind, arising at
law or in equity, which Consultant has or ever had against any
of them, arising up to and including the date Consultant signs
this Termination Agreement, including, but not limited to
claims arising out of the Consulting Agreement, Consultant's
relationship with the Company or the termination thereof under
any contract, tort, federal, state or local fair employment
practices or civil rights law including, but not limited to,
Title VII of the Civil Rights Act of 1964, as amended, the
Civil Rights Act of 1991, the Americans with Disabilities Act,
the Age Discrimination in Employment Act, the Older Workers
Benefit Protection Act, the Employee Retirement Income
Security Act of 1974, the New Jersey Law Against
Discrimination, or any claim for physical or emotional
distress or injuries, or any other duty or obligation of any
kind or description. This release shall apply to all known,
unknown, unsuspected and unanticipated claims, liens, injuries
and damages including, but not limited to, claims of
employment discrimination, indemnity or discharge, or claims
sounding in tort or in contract, express or implied as of the
date of the execution of this Termination Agreement. Except to
enforce the provisions of this Termination Agreement,
Consultant agrees not to initiate any legal action, charge or
complaint seeking to recover damages against any of the
Released Parties relating to the matters covered or
contemplated by this Termination Agreement or that is based on
events that took place prior to the date of execution hereof
or claims existing as of the date of execution hereof. In the
event Consultant asserts any such actions, charges or
complaints in the future, Consultant agrees that the Company,
in addition to any other remedies available at law or in
equity, shall be entitled to recover its costs and the
attorneys fees incurred by one or more of the Released Parties
in defending such action, charge or complaint. This
Termination
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Agreement shall not affect Consultant's rights and obligations
under the terms of any pension or 401k plan.
(b) The Company hereby agrees to release and discharge Consultant
from any and all claims, causes of action and demands of every
kind, arising at law or in equity, whether known or unknown,
which the Company has, ever had had, and ever in the future
may have against Consultant, arising up to and including the
date the Company signs this Termination Agreement, provided
that with respect to Consultant's actions as a director of the
Company the foregoing release shall not apply to any claims
arising from or related to (i) any breach of Consultant's duty
of loyalty to the Company or its stockholders; (ii) acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of the law; (iii) section
174 of the Delaware General Corporation Law, or (iv) any
transaction from which the Consultant derived an improper
personal benefit. Except to enforce the provisions of this
Termination Agreement or as otherwise provided herein, the
Company agrees not to initiate any legal action, charge or
complaint seeking to recover damages against Consultant
relating to the matters covered or contemplated by this
Termination Agreement or that is based on events that took
place prior to the date of execution hereof or claims existing
as of the date of execution hereof. In the event the Company
asserts any such actions, charges or complaints in the future,
Consultant agrees that the Company, in addition to any other
remedies available at law or in equity, shall be entitled to
recover its costs and the attorneys fees incurred by
Consultant in defending such action, charge or complaint.
(c) Consultant hereby acknowledges that he has been provided an
opportunity to consult with an attorney or other advisor of
his choice regarding the terms of this Termination Agreement,
that he has been given 45 days in which to consider whether he
wishes to enter into this Termination Agreement, and that he
has elected to enter this Termination Agreement knowingly and
voluntarily. Consultant further acknowledges that he may
revoke his assent to this Agreement within seven days of its
execution by Consultant. If Consultant wishes to revoke his
agreement, he must notify Xxxxxxx X. Xxxx within the seven day
revocation period. The voluntary payments to be provided
hereunder will be held in escrow by Fulbright & Xxxxxxxx
L.L.P., counsel to the Company, and will be released upon
expiration of the revocation period.
4. COOPERATION AND INDEMNIFICATION
(a) Consultant agrees to reasonably cooperate and assist in the
defense of all actions or proceedings brought against the
Company. The Company will reimburse Consultant for all related
and customary out-of-pocket expenses in connection therewith
and will pay Consultant reasonable per diem compensation.
(b) The Company acknowledges that the execution of this
Termination Agreement is not intended to modify or alter any
corporate indemnification rights which Consultant may have as
an officer, director, employee or agent of the Company
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pursuant to the Company's organizational documents, by-laws,
resolutions or other corporate instruments or by-law. In
addition, the Company shall indemnify Consultant if Consultant
is made a party or threatened to be made a party to any
action, suit or proceeding, whether civil or criminal,
administrative or investigative by reason of the fact that
Consultant is or was a director, officer , employee or agent
of the Company, or is or was serving at the request of the
Company, against expenses (including attorneys' fees),
judgment, fines, and amounts paid in settlement actually and
reasonable incurred by Consultant in connection with such
action, suit or proceeding if Consultant acted in good faith
and in a manner reasonably believed to be in or not opposed to
the best interests of the Company, and with respect to any
criminal action or proceedings, had no reasonable cause to
believe his conduct was unlawful.
5. MISCELLANEOUS PROVISIONS.
(a) This Termination Agreement shall not be amended or modified
except by a written instrument signed by the Company and the
Consultant.
(b) Any and all other previous or contemporaneous agreements,
understandings, representations and statements, oral or
written, between the parties relating to consulting or other
services provided by the Consultant are hereby superceded and
shall be of no further force or effect.
(c) This Termination Agreement may be executed in counterparts,
each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall
together constitute one and the same agreement. This
Termination Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall
bear the signatures of all of the parties reflected hereon as
the signatories.
(d) This Termination Agreement shall be governed by and construed
in accordance with the laws of the State of New Jersey,
without regard to the conflicts of laws principles thereof.
(e) This Termination Agreement shall inure to the benefit of, be
enforceable by, and bind the parties hereto and their
respective successors and assigns. Except as specifically set
forth or referred to herein, nothing herein expressed or
implied is intended or shall be construed to confer upon or
give to any person other than the parties hereto and their
successors or assigns any rights or remedies under or by
reason of this Termination Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Termination Agreement as of the day and year first above written.
H POWER CORP.
By: /s/ H. Xxxxx Xxxxxxx
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H. Xxxxx Xxxxxxx
Chief Executive Officer
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxx Xxxxxxxxx
Consultant
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