Contract
Exhibit
10.1
EMPLOYMENT
AGREEMENT dated as of August 12, 2005 (the “Employment
Agreement”),
by
and between MILLENNIUM CELL INC., a Delaware corporation (“Millennium
Cell”),
and
H. XXXXX XXXX, an individual residing at 00 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx
00000-0000 (“Executive”).
In
consideration of the promotion of Executive to the position of Chief Executive
Officer of Millennium Cell and in replacement of that certain employment
agreement between Millennium Cell and Executive dated as of July 14, 2004 (the
“Previous Agreement”), and the mutual covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as
follows:
1. Term.
Millennium Cell hereby agrees to continue to employ Executive, and Executive
hereby accepts such continued employment, under and subject to all of the terms,
conditions and provisions hereof, from April 25, 2005, and ending on the close
of business on December 31, 2005 (the “Employment
Term”).
At
the end of the Employment Term, this Employment Agreement shall renew
automatically for additional one-month periods unless either party delivers
to
the other party 30 days’ prior written notice of such party’s election that the
Employment Term not be so renewed. If this Employment Agreement is extended
in
accordance with the preceding sentence, the “Employment Term” shall be extended
until the end of the applicable extension period. The parties agree and
acknowledge that the Previous Agreement shall be null and void and of no further
force and effect as of the date hereof.
2. Duties.
During
the Employment Term, Executive will be employed as Millennium Cell’s Chief
Executive Officer. Executive shall be responsible for all duties customarily
associated with his title, and be responsible for the general management of
the
business and operations of Millennium Cell. Executive shall report directly
to
the Chairman of the Board of Directors of Millennium Cell (or any individual
director designated by such Chairman). Executive shall be allowed to devote
time
to other activities and employment; provided,
that
Executive shall devote a sufficient amount of time to Millennium Cell so as
to
be able to perform his duties under the above-mentioned title and shall make
himself available after regular business hours (by telephone, e-mail and
facsimile machine) and shall travel if and as necessary in order to conduct
Millennium Cell’s business and fully discharge Executive’s responsibilities
under this Employment Agreement.
3. Compensation;
Fringe Benefits.
As full
consideration for the services provided by Executive hereunder, Executive shall
be granted fifty thousand (50,000) restricted shares of common stock, par value
$.001 per share, of Millennium Cell, which restricted shares shall be subject
to
the vesting schedule, forfeiture events and other terms, conditions and
restrictions set forth in this Employment Agreement, in that certain Restricted
Stock Grant Agreement dated as of the date hereof (the “Grant
Agreement”)
issued
by Millennium Cell to Executive and in that certain Amended and Restated
Millennium Cell Inc. 2000 Stock Option Plan, amended effective December 1,
2001
(the “Plan”).
4. Termination.
This
Employment Agreement may be terminated by any party at any time for any reason.
In the event of any termination of this Employment Agreement, Executive agrees,
acknowledges and understands that he shall not be eligible for any severance
payments except as set forth in the Grant Agreement.
5. No
Solicitation of Employees.
During
the Employment Term, and for a period of one year after the expiration or
earlier termination of this Employment Agreement, other than in the course
of
Executive’s performance of his duties on behalf of Millennium Cell, Executive
shall not for any reason, directly or indirectly, through another person or
entity (i) induce or attempt to induce any officer, director, employee,
contractor, consultant or advisor (collectively, “Personnel”)
of
Millennium Cell or any of its Affiliates (as defined below) to end or terminate
its relationship with Millennium Cell or such Affiliates, or in any way
interfere with the relationship between Millennium Cell or any such Affiliates,
on the one hand, and any of their Personnel, on the other hand, (ii) knowingly
hire or assist a third party seeking to have any member of the Personnel of
Millennium Cell or its Affiliates until six months after such individual’s
relationship with Millennium Cell and/or any Affiliate of Millennium Cell has
been terminated or (iii) induce or attempt to induce any client, customer,
supplier, vendor, licensee or other business relation of Millennium Cell or
any
of its Affiliates to cease doing business with Millennium Cell or its
Affiliates, or in any way interfere with the relationship between any such
client, customer, supplier, vendor, licensee or business relation, on the one
hand, and Millennium Cell or any its Affiliates, on the other hand.
6. Confidential
Information.
Executive recognizes and acknowledges that Millennium Cell and its Affiliates’
trade secrets and confidential or Proprietary Information (as defined below),
including such trade secrets or information as may exist from time to time,
and
information as to the identity of customers of Millennium Cell and its
Affiliates, and other similar items (collectively, “Confidential
Information”),
are
valuable, special and unique assets of Millennium Cell’s business, the access to
and knowledge of which are essential to the performance of the duties of
Executive hereunder. Executive will not, in whole or in part, disclose, at
any
time, either during or subsequent to his employment with Millennium Cell, such
Confidential Information to any person, firm, corporation, limited liability
company, partnership, association or any other entity for any reason or purpose
whatsoever, except as required in connection with Executive’s duties to
Millennium Cell and except to Millennium Cell’s Personnel and similar
representatives who are aware of the confidential nature thereof and are bound
by a duty of confidentiality with respect thereto, nor shall Executive make
use
of any such Confidential Information for his own purposes or for the benefit
of
any person, firm, corporation limited liability company, partnership,
association or other entity (except Millennium Cell) under any circumstances;
provided,
however,
that
Executive may disclose (i) information in the public domain not as a result
of a
breach of this Employment Agreement, (ii) information lawfully received from
a
third party who had the right to disclose such information and was not violating
an obligation to Millennium Cell in connection therewith and (iii) information,
other than Proprietary Information, learned through Executive’s own independent
skill, knowledge, know-how and experience to whatever extent and in whatever
way
Executive wishes, in each case consistent with Executive’s obligations under
this Employment Agreement. In the event that Executive is requested or required
(by oral questions, deposition, interrogatories, requests for information or
documents, subpoena, civil investigative demand or other process) to disclose
all or any part of any Confidential Information, Executive shall use reasonable
efforts to provide Millennium Cell with prompt notice of such request or
requirement so that Millennium Cell may seek an appropriate protective order
or
waive compliance with the provisions of this Employment Agreement, as well
as
notice of the terms and circumstances surrounding such request or requirement.
In any such case, Executive shall discuss with Millennium Cell the advisability
of pursuing any such order or other legal action or available steps to resist
or
narrow such request or requirement. If, failing the entry of a protective order
or the receipt of a waiver hereunder, Executive is legally compelled to disclose
Confidential Information, Executive may disclose that portion of the
Confidential Information which Executive is legally compelled to disclose.
In
any event, Executive shall use reasonable efforts to cooperate with Millennium
Cell’s efforts to obtain and shall not oppose action by Millennium Cell to
obtain, an appropriate protective order or other reliable assurance that
confidential treatment will be accorded the disclosure of such
information.
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7. Ownership
of Proprietary Information.
Executive acknowledges and agrees that all information that has been created,
discovered or developed by Millennium Cell, its subsidiaries, affiliates,
licensors, licensees, successors or assigns (collectively, the “Affiliates”)
(including, without limitation, information relating to the development of
Millennium Cell’s business created, discovered, developed or made known to
Millennium Cell or the Affiliates by the Executive during the Employment Term
and information relating to Millennium Cell’s customers, suppliers, consultants
and licensees) and/or in which property rights have been assigned or otherwise
conveyed to Millennium Cell or its Affiliates, shall be the sole property of
Millennium Cell or its Affiliates, as applicable, and Millennium Cell or its
applicable Affiliate, as the case may be, shall be the sole owner of all
patents, patent rights, licenses and other proprietary rights in connection
therewith, including, but not limited to, the right to file applications for
statutory protection. All of the aforementioned information is hereinafter
called “Proprietary
Information”.
By way
of illustration, but not limitation, Proprietary Information includes trade
secrets, processes, discoveries, structures, inventions, designs, ideas, works
of authorship, copyrightable works, trademarks, copyrights, formulas, data,
know-how, show-how, improvements, inventions, product concepts, techniques,
information or statistics contained in, or relating to, marketing plans,
strategies, forecasts, blueprints, sketches, records, notes, devices, drawings,
customer lists, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications and information about Millennium Cell’s or its
Affiliates’ Personnel and/or advisors (including, without limitation, the
compensation, responsibility and performance of such Personnel).
8. Disclosure
and Ownership of Inventions.
(a)
During the Employment Term, Executive agrees that he will promptly disclose
to
Millennium Cell, or any persons designated by Millennium Cell, any and all
improvements, inventions, designs, ideas, works of authorship, copyrightable
works, discoveries, trademarks, copyrights, trade secrets, formulas, processes,
structures, product concepts, marketing plans, strategies, customer lists,
techniques, blueprints, sketches, records, notes, devices, drawings, know-how,
data, whether or not patentable, patent applications, continuation applications,
continuation-in-part applications, file wrapper continuation applications and
divisional applications (collectively hereinafter referred to as the
“Inventions”),
made
or conceived or reduced to practice or learned by Executive, either alone or
jointly with others, during the Employment Term.
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(b) Executive
agrees that all Inventions shall be the sole property of Millennium Cell to
the
maximum extent permitted by applicable law and to the extent permitted by law
shall be “works made for hire” as that term is defined in the United States
Copyright Act (17 USCA, Section 101). To the extent that any Inventions are
not
deemed “works made for hire”, Executive hereby agrees to assign such Invention
to Millennium Cell. Millennium Cell shall be the sole owner of all patents,
copyrights, trademarks, trade secret rights and other intellectual property
or
other rights in connection therewith. Executive hereby agrees to assign to
Millennium Cell all right, title and interest Executive may have or acquire
in
all Inventions. Executive further agrees to assist Millennium Cell in every
proper way (but at Millennium Cell’s expense) to obtain and from time to time
enforce patents, copyrights, trademarks or other rights on said Inventions
in
any and all countries, and to that end Executive will execute all documents
necessary:
(i) to
apply
for, obtain and vest in the name of Millennium Cell alone (unless Millennium
Cell otherwise directs) letters patent, copyrights, trademarks or other
analogous protection in any country throughout the world and when so obtained
or
vested to renew and restore the same; and
(ii) to
defend
any opposition proceedings in respect of such applications and any opposition
proceedings or petitions or applications for revocation of such letters patent,
copyright, trademark or other analogous protection.
(c) Executive’s
obligation to assist Millennium Cell in obtaining and enforcing patents,
copyrights and trademarks for the Inventions in any and all countries shall
continue beyond the Employment Term, but Millennium Cell agrees to compensate
Executive at a reasonable rate after the expiration of the Employment Term
for
time actually spent by Executive at Millennium Cell’s request in connection with
such assistance.
9. Injunction.
Executive agrees that his failure to perform the obligations provided by
Sections 5, 6, 7 or 8 of this Employment Agreement will result in material
irreparable injury to Millennium Cell for which there is no adequate remedy
at
law and that it will not be possible to measure damages for such injuries
precisely. Accordingly, Executive agrees that if he breaches, or proposes to
breach, any portion of Sections 5, 6, 7 or 8 of this Employment Agreement,
Millennium Cell shall be entitled, in addition to all other remedies that it
may
have and without the posting of a bond or other security, to a temporary
restraining order and/or an injunction, specific performance or other
appropriate equitable relief to restrain any such breach without showing or
proving any actual damage to Millennium Cell.
10. Acknowledgment;
Enforceability.
Executive has reviewed this Employment Agreement in its entirety, has had an
opportunity to obtain the advice of counsel prior to executing this Employment
Agreement and fully understands all provisions of this Employment Agreement.
Executive hereby acknowledges that the type and periods of restriction imposed
in the provisions of this Employment Agreement are fair and reasonable and
are
reasonably required for the protection of Millennium Cell’s Proprietary
Information, Confidential Information and the goodwill associated with
Millennium Cell’s business. Executive hereby further acknowledges that the
provisions of this Employment Agreement shall be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction
in
which enforcement is sought. Accordingly, if any portion or provision of this
Employment Agreement is to any extent declared illegal, invalid or unenforceable
by a court of competent jurisdiction, then this Employment Agreement shall
be
deemed amended to modify or delete therefrom the portion thus declared illegal,
invalid or unenforceable, and the remainder of this Employment Agreement, or
the
application of such portion or provision in circumstances other than those
as to
which it is so declared illegal, invalid or unenforceable, will not be affected
thereby, and each portion and provision of this Employment Agreement shall
be
valid and enforceable to the fullest extent permitted by law. In the event
that
any provision of this Employment Agreement is determined by any court of
competent jurisdiction to be unenforceable by reason of excessive scope,
geographic area, or temporal or functional coverage, such provision will be
deemed to extend only over the maximum scope, geographic area or temporal and
functional coverage as to which it may be enforceable, and the court shall
revise the restriction contained herein to cover such maximum scope, geographic
area and temporal and functional coverage. Any provision of this Employment
Agreement which is prohibited or unenforceable in any jurisdiction shall, as
to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction.
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11. Notices.
Any
notice required to be given or delivered to Millennium Cell under the terms
of
this Employment Agreement shall be in writing and addressed to Millennium Cell
at 0 Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx [Missing Graphic
Reference]07724,
Fax: 000-000-0000, Attention: Chairman of the Board, or to such other address
as
shall be provided in writing to Executive. Any notice required to be given
or
delivered to Executive shall be in writing and addressed to the most recent
address of Executive, as set forth in the books and records of Millennium Cell.
All notices shall be deemed effective upon personal delivery against receipt
therefor; one day after being sent by Federal Express or similar overnight
delivery; or three days after being mailed registered or certified mail, postage
prepaid, and properly addressed to the party to be notified.
12. Entire
Agreement.
This
Agreement and the Grant Agreement contain the entire understanding between
the
parties concerning the subject matter contained in herein and therein. There
are
no representations, agreements, arrangements or understandings, oral or written,
between the parties hereto, relating to the subject matter of this Employment
Agreement, that are not fully expressed herein or therein.
13. Governing
Law.
This
Employment Agreement shall be governed by, and construed in accordance with,
the
laws of the State of New York (without regard to such State’s conflict of laws
doctrines).
14. Amendments
and Waivers.
The
parties hereto may, by written agreement signed by the parties, modify any
of
the covenants or agreements or modify the time for the performance of any of
the
obligations contained in this Employment Agreement or in any document delivered
pursuant to this Employment Agreement. Any party hereto may waive, by written
instrument signed by such party, compliance by the other party, with any of
the
other party’s obligations contained in this Employment Agreement.
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15. No
Waiver of Rights.
No
failure or delay on the part of any party in the exercise of any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude other or further exercise thereof
or of any other right or power. The waiver by any party or parties hereto of
a
breach of any provision of this Employment Agreement shall not operate or be
construed as a waiver of any other or subsequent breach hereunder. All rights
and remedies existing under this Employment Agreement are cumulative and are
not
exclusive of any rights or remedies otherwise available.
16. Submission
to Jurisdiction.
Any and
all suits, legal actions or proceedings against any party hereto arising out
of
this Employment Agreement shall be brought in any United States federal court
sitting in the State of York or any other court of appropriate jurisdiction
sitting in the State of New York, as the party bringing such suit may elect
in
its sole discretion, and each party hereby submits to and accepts the exclusive
jurisdiction of such courts for the purpose of such suit, legal action or
proceeding, each party hereto waives personal service of any summons, complaint
or other process and agrees that service thereof may be made by certified or
registered mail. Each party hereto hereby irrevocably waives any objection
which
it may now hereafter have to the laying of venue of such suit, legal action
or
proceeding in any such court and hereby further waives any claim that any such
suit, legal action or proceeding brought in any such court has been brought
in
an inconvenient forum.
17. Counterparts.
This
Employment Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but both of which together shall constitute
one and the same instrument.
18. Construction.
Whenever used in this Employment Agreement, the singular number will include
the
plural, and the plural number will include the singular, and the masculine
or
neuter gender shall include the masculine, feminine or neuter gender. The
headings of the Sections of this Employment Agreement have been inserted for
purposes of convenience and shall not be used for interpretive
purposes.
19. Successors.
The
rights and obligations of Millennium Cell under this Employment Agreement shall
be transferable to any successor thereto. The rights and obligations of
Executive under this Employment Agreement may only be assigned with the prior
written consent of Millennium Cell.
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Employment
Agreement as of the day and year first set forth above.
H. Xxxxx
Xxxx
/s/H.
Xxxxx Xxxx
By:
/s/G.
Xxxxx Xxxxxxxx
Name:
G.
Xxxxx Xxxxxxxx
Title:
Chairman of the Board
