ADVISORY BOARD CHAIRMAN CONSULTING AGREEMENT
Exhibit
10.1
ADVISORY
BOARD CHAIRMAN
This
ADVISORY BOARD CHAIRMAN CONSULTING AGREEMENT (the “Agreement”),
dated
September 20, 2007, by and between MILLENNIUM CELL INC., a Delaware corporation,
(the “Company”),
and
XXXXXXXXX X. “XXX” XXXXX, JR., an individual (the “Consultant”).
RECITALS
WHEREAS,
the Company is engaged in the development of hydrogen battery technology for
use
in portable electronic devices and remote power applications for the, military,
medical, industrial and consumer markets (the “Business”);
WHEREAS,
the Company has established an advisory board (the “Advisory
Board”)
to
assist the Board of Directors and senior management of the Company in promoting
the Company’s products and technology to the appropriate government and military
agencies and prime military contractors with the objective of enhancing the
use
of the products and the widespread adoption of the technology in a wide range
of
targeted applications (the “Advisory
Board Purpose”).
WHEREAS,
the Consultant is a member of the Board of Directors of the
Company;
WHEREAS,
the Consultant has demonstrated extensive knowledge, skill and expertise in
areas related to the Advisory Board Purpose;
WHEREAS,
the Company desires to retain the benefit of the Consultant’s services as the
Chairman of the Advisory Board;
WHEREAS,
the Company also desires to (i) keep confidential and secret all information
the
Consultant has regarding the operations of the Business and (ii) secure the
Consultant’s agreement not to compete with the Business under the certain
circumstances and for the certain time periods described in this
Agreement;
WHEREAS,
the Consultant understands the necessity of keeping the aforementioned
information confidential and secret, recognizes the proprietary nature of such
information and agrees not to compete with the Business under the certain
circumstances and for the certain time periods specified in this
Agreement;
WHEREAS,
the Company is willing to compensate the Consultant for his services as a
consultant to the Company and member of the Advisory Board, together with his
noncompetition and nondisclosure covenants, all upon the terms, covenants and
conditions hereinafter set forth.
NOW,
THEREFORE, in consideration of the compensation paid hereunder, the mutual
covenants, agreements and promises hereinafter set forth, and for other good
and
valuable consideration, the receipt and sufficiency of which is hereby agreed
and acknowledged, the parties hereto, intending to be legally bound, agree
as
follows:
| (1) |
Definitions.
|
| (a) |
“Affiliate”
means any Person (as hereinafter defined) now or hereafter controlling,
controlled by, or under common control with another
Person.
|
| (b) |
“Area”
means (i) the Borough of Eatontown, New Jersey, Monmouth County,
New
Jersey, the adjacent counties in New Jersey, the rest of the State
of New
Jersey, the states contiguous thereto, and each other state in the
United
States where the Company conducts the Business or has conducted the
Business.
|
| (c) |
“Board”
means the Board of Directors of the
Company.
|
| (d) |
“Cause”
means (A) the commission of any act by the Consultant constituting
financial dishonesty against the Company or its Affiliates; (B) the
commission of a felony; (C) the commission of or act by the Consultant
involving moral turpitude that brings the Company, or its Affiliates
in
public disrepute or disgrace or causes harm to the conduct by the
Company
or its Affiliates of the Business; (D) incompetence of the Consultant
resulting or arising out of the use or reporting to work under the
influence of alcohol, narcotics, other unlawful drugs or controlled
substances; or (E) any material breach of this Agreement, including
without limitation, any breach of Sections 7 and 8; or (F) the failure
of
the Consultant to perform in all material respects his duties as
required
hereunder.
|
| (e) |
“Commencement
Date”
means the date of this Agreement.
|
| (f) |
“Consulting
Fee”
has the meaning set forth in Section
3.
|
| (g) |
“Consulting
Period”
has the meaning set forth in Section
2(a).
|
| (h) |
“Ordinary
Course of Business”
means the conduct of the business and affairs of the Company or its
Affiliates in the usual and ordinary course and in a manner which
advances
the purposes and is in the best interest of the Company and its
Affiliates.
|
| (i) |
“Person”
means any individual, corporation, firm, partnership, limited liability
company or other business entity whether or not such entity is operated
for profit.
|
| (j) |
“Proprietary
Information”
means all information or data with respect to the conduct or details
of
the Business (whether constituting a trade secret or not) including,
without limitation, methods of operation, customers and customer
lists,
supplier lists, sales data, details of contracts with customers,
consultants, suppliers or employees, products, proposed products,
former
products, proposed, pending or completed acquisitions of any company,
division, product line or other business unit, prices and pricing
policies, fees, costs, patents, trademarks, trade names, plans, designs,
drawings, specifications, models, programs, cards, tapes , disks,
printouts, manuals, guides, notes, technology, inventions, trade
secrets,
know-how, software, marketing methods, policies, plans, personnel,
suppliers, competitors, markets or other specialized information
or
proprietary matters of the Company.
|
2
| (k) |
“Publicly
Traded”
with respect to the Common Stock, means listed for trading on any
national
or regional securities exchange or the OTC Bulletin
Board.
|
| (l) |
“VP
of Government Relations”
means the Vice President of Government Relations of the
Company.
|
| (2) |
Consulting
Period and Duties with the Company.
|
| (a) |
Consulting
Period.
During 2007, the Consultant shall be available as a consultant to
the
Company from the date hereof (the “Commencement
Date”)
through and including December 31, 2007. Thereafter, and provided
that the
Consultant continues to serve as a consultant to the Company, the
consulting period shall continue for consecutive periods of one (1)
year each.
The period during which the Consultant shall be available as a consultant
to the Company shall be referred to herein as the “Consulting
Period”
Notwithstanding anything contained herein with respect to the term
of the
Consulting Period, the Company may at any time terminate this Agreement
pursuant to Section 6 hereof upon giving notice to the Consultant
to such
effect.
|
| (b) |
Effectiveness.
This Agreement shall become effective upon: (a) the authorization
by the
Board with respect to the establishment of the Advisory Board and
the
approval of the charter thereof, and (b) approval by the Board of
this
Agreement.
|
| (c) |
Duties.
During the Consulting Period, the Consultant shall make himself
available
to perform such promotional, consulting, informational and analytical
services as may reasonably be requested by the Company (the “Consulting
ervices”).
The Consultant shall report directly to the Board at regularly
scheduled
meetings, and shall use his best efforts to further the Advisory
Board
Purpose. The Consulting Services shall include the
following:
|
| (i) |
act
as Chairman of the Advisory Board and call and attend a maximum of
four
(4) meetings of the Advisory Board per year in a location in the
Washington DC area designated by the VP of Government
Relations;
|
| (ii) |
Determine,
after consultation with the VP of Government Relations, which employees
of
the Company, in addition to the VP of Government Relations shall
attend
meetings of the Advisory Board and request the presence of such
employees.
|
3
| (iii) |
communicate
with the VP of Government Relations and other employees of the Company,
as
appropriate, to stay abreast of the Company’s products and technology
development initiatives;
|
| (iv) |
promote
the Company’s products and technology to the appropriate government and
military agencies and prime military contractors with the objective
of
enhancing the use of those products and the widespread adoption of
the
technology in a wide range of targeted
applications;
|
| (v) |
recommend
improvements to and revisions in the Company’s strategy and approach to
selling and marketing its products and technology to government and
military agencies and prime military contractors;
and
|
| (vi) |
introduce
appropriate Company personnel to key decision makers in government
and
military agencies and prime military contractors to enhance credibility
and confidence in the Company’s products and
technology.
|
| (d) |
Company
Policies.
The Consultant agrees to comply with all policies applicable to him
of the
Company in effect from time to time, including without limitation,
the
Company’s xxxxxxx xxxxxxx policy and guidelines with respect to certain
transactions in Company securities, as approved by the Board and
in effect
from time to time (the “Xxxxxxx
Xxxxxxx Policy”).
The Consultant acknowledges that by being a member of the Advisory
Board
and a party to this Agreement he is an “Insider” under the Xxxxxxx Xxxxxxx
Policy. The Consultant agrees that he will refrain from trading in
any of
the Company’s securities without first complying with the Company’s
“pre-clearance” process as set out in the Xxxxxxx Xxxxxxx Policy. The
Consultant may request a copy of the current Xxxxxxx Xxxxxxx Policy
from
the Company’s Vice President of Administration. The Company is in the
process of reviewing the Xxxxxxx Xxxxxxx Policy, and it agrees that
it
shall provide the Consultant with a copy of the Xxxxxxx Xxxxxxx Policy
upon the Board’s approval of an amendment and/or restatement of such
policy. The Consultant agrees that he will certify to the Company
that he
has carefully read, understands and agrees to comply with the Xxxxxxx
Xxxxxxx Policy at each such time as the Board has approved an amended
and/or restated Xxxxxxx Xxxxxxx
Policy.
|
| (3) |
Compensation.
For each full year during which the Consultant serves as a consultant
to
the Company in accordance with the terms of this Agreement (and prorated
(based upon a year consisting of 365 days) for 2007 and for any other
less
than full year period during which the Consultant so serves as a
consultant to the Company), the Company shall pay to the Consultant,
and
the Consultant shall accept from the Company in full payment for
the
Consulting Services rendered to the Company pursuant to Section 2
hereof
and for the Consultant’s nondisclosure and noncompetition covenants
pursuant to Sections 7 and 8, respectively, the following
compensation:
|
4
| (a) |
an
honorarium in an amount as determined by the Board of Directors of
the
Company (which for the remainder of 2007 shall be based upon a full
year
honorarium equal to Seven Thousand Five Hundred Dollars
($7,500));
|
| (b) |
an
amount equal to One Thousand Dollars ($1,000) in compensation for
each
Advisory Board meeting the Consultant
attends.
|
| (c) |
subject
to the approval by the Board, the Consultant will receive a grant
of
options to purchase such number of shares of the Company’s common stock,
par value $0.001 per share, as the Board of Directors of the Company
shall
determine (which for the remainder of 2007 shall be based upon a
full year
stock option award consisting of Twenty-Two Thousand Five Hundred
(22,500) shares of the Company’s common stock) (the “Options”)
under the Company’s Amended and Restated 2000 Stock Option Plan subject to
the terms and conditions of a Stock Option Grant Agreement to be
entered
into by the Company and the Consultant upon approval by the
Board.
|
| (4) |
Expenses.
The Company shall reimburse the Consultant for reasonable travel
and other
business expenses that are incurred by the Consultant in the performance
of the Consulting Services upon the presentation to the Company of
appropriate written documentation for such
expenses.
|
| (5) |
Independent
Contractor.
The Consultant and the Company agree that for the purposes of this
Agreement, the Consultant shall be an independent contractor and
not an
employee of the Company. Except for the compensation and expense
reimbursement provided for in Sections 3 and 4, respectively, the
Consultant will not be entitled to any salary or other compensation
from
the Company and will not receive any employee benefits or any sick,
holiday or vacation pay from the Company. The Company will not withhold
income taxes or pay social security or unemployment taxes for the
Consultant, and the Consultant will be responsible for all income
and
other tax liability arising out of this Agreement. The Consultant
shall
have no authority to enter into contracts which bind the Company
or
otherwise create obligations on the part of the
Company.
|
| (6) |
Termination
of Consultancy.
The Company shall have the right to terminate this Agreement at any
time
during the term of this Agreement for any reason, including, without
limitation, a finding by the Board that the Consultant’s relationship with
the Company under this Agreement shall cause him to no longer be
an
“independent director” as defined under Nasdaq Marketplace Rule
4200(a)(15). Upon such termination, the Company shall have no further
liability for compensation or other benefits to the Consultant under
this
Agreement except for such amounts that have been earned prior to
the date
of termination and remain unpaid as of such
date.
|
5
| (7) |
Nondisclosure.
|
| (a) |
The
Consultant covenants and agrees that, at all times from and after
the
Commencement Date, he shall keep completely confidential and retain
in
strictest confidence and shall not directly or indirectly disclose,
communicate or divulge to any Person other than the Company and its
Subsidiary, and their respective employees, officers and agents,
to whom
such disclosure is necessary in the Ordinary Course of Business,
or use
for the benefit of any Person other than the Company or its Subsidiaries,
any Proprietary Information. The restriction contained in the preceding
sentence shall not apply to any Proprietary Information that (i)
is a
matter of public knowledge on the Commencement Date, (ii) becomes
a matter
of public knowledge after the Commencement Date solely from a source
other
than the Consultant or any other Person subject to an obligation
of
confidentiality to the Company or (iii) is required by law or by
the order
of any court or government agency, or in any litigation or similar
proceeding to be disclosed; provided,
that the Consultant shall, prior to making such legally required
or
compelled disclosure, notify the Company in order to permit the Company
to
seek an appropriate protective order and, upon such disclosure, shall
request confidential treatment
thereof.
|
| (b) |
All
Proprietary Information shall be, become and remain the exclusive
property
of the Company. Upon the termination of the Consulting Period, all
originals, copies and reprints of the Proprietary Information in
the
Consultant’s possession, custody, or control shall be promptly surrendered
and/or delivered to the Company, and the Consultant shall thereafter
make
no further use, either directly or indirectly, of any such Proprietary
Information, provided
that the Consultant shall not be obligated to deliver to the Company
or
prohibited from using such written information as is a matter of
public
knowledge through no action on his part on or prior to the date of
the
termination of the Consulting Period (whether pursuant to this Agreement
or otherwise).
|
| (8) |
Covenants
Not to Compete.
|
| (a) |
The
Consultant covenants and agrees that he will not at any time during
the
Consulting Period, directly or indirectly, for himself or through
or on
behalf of any other Person, whether as employee, owner, partner,
agent,
director, officer, consultant, or shareholder (except as the holder
of not
more than one percent (1%) of the outstanding shares of a corporation
whose shares are Publicly Traded) or in any other capacity, do any
of the
following: (i) invest in, carry on, engage in or conduct or become
involved in the Business or propose to engage in the Business within
the
Area, (ii) establish any Person that engages in the Business or proposes
to engage in the Business within the Area, (iii) be affiliated or
connected with any Person that engages in the Business or proposes
to
engage in the Business in the Area, (iv) solicit, divert or accept
business from or otherwise take away or interfere with any customer
of or
supplier to the Company, or any distributor or seller of products
of the
Company, including without limitation any Person who was a customer,
supplier or distributor or whose business was being pursued by the
Company
(A) during the period in which he serves as a consultant to the Company,
(B) one (1) year after the date as of which he ceases serve as a
consultant to the Company or (v) solicit or attempt to solicit the
employment of any Person employed by the Company or any of its Affiliates
or in any manner induce or attempt to induce any Person employed
by the
Company or any of its Affiliates to leave such
employment.
|
6
| (b) |
The
Consultant hereby acknowledges that the scope and duration of the
restriction imposed in the provisions set forth above are fair and
reasonable and are reasonably required for the protection of the
Company’s
proprietary information and the goodwill associated with the Business.
It
is the desire and intent of the parties that such provisions 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 set forth above is declared
illegal, invalid, or unenforceable by a court of competent jurisdiction,
then this Agreement shall be deemed amended to modify or delete therefrom
the portion thus declared illegal, invalid, or unenforceable, and
the
remainder of this 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 Agreement shall be valid and enforceable
to
the fullest extent permitted by law. In the event that any of the
provisions set forth above are determined by any court of competent
jurisdiction to be unenforceable by reason of excessive scope, geographic
area, or duration, such provisions will be deemed to extend only
to the
maximum scope, geographic area, and duration as to which it may be
enforceable, and the court shall revise the restrictions contained
herein
to cover such maximum scope, geographic area, and duration. For the
purposes of this Section 8, the parties hereto agree that the covenants
contained in Section 8(a) shall be construed as a series of separate
covenants, one for each geographical subdivision which comprises
the Area
and, except for geographic coverage, each separate covenant shall
be
deemed identical.
|
| (9) |
Acknowledgments;
Injunctive Relief.
The Consultant acknowledges the confidential and secret nature of
the
Proprietary Information. The Consultant also acknowledges that the
Company
has devoted considerable time, expense and other resources to the
development or acquisition of the Proprietary Information. In light
of
this expenditure of time, money and resources by the Company, the
Consultant further acknowledges (i) that all of the Proprietary
Information has great economic value and is proprietary to the Company,
(ii) that his violation of this Agreement would cause the Company
to
suffer irreparable damage and (iii) that the character, periods and
geographical areas and the scope of restrictions on the Consultant’s
activities during the Consulting Period are fair and reasonably required
for the protection of the Company. Therefore, in addition to any
other
remedies which the Company may have under this Agreement or otherwise,
the
Company shall be entitled to apply to any court of competent jurisdiction
for an injunction restraining the Consultant from committing or continuing
any violation of Sections 7 or 8 of this Agreement, and the Consultant
shall not object to such application except to litigate whether,
in fact,
he has violated Sections 7 and/or 8 of this
Agreement.
|
7
| (10) |
Notice.All
notices, requests, consents and other communications hereunder shall
be
deemed given: (i) when delivered if delivered personally (including
by
courier); (ii) on the third day after mailing, if mailed, postage
prepaid,
by registered or certified mail (return receipt requested); (iii)
on the
day after mailing if sent by a nationally recognized overnight delivery
service which maintains records of time, place, and receipt of delivery;
or (iv) upon receipt of a confirmed transmission, if sent by telex,
telecopy or facsimile transmission, in each case to the parties at
the
following addresses or to other such addresses as may be furnished
in
writing by one party to the other in accordance herewith, except
that
notices of change of address shall be effective only upon
receipt:
|
Ifto
the
Consultant:
Xxxxxxxxx
X.
“Xxx”
Xxxxx, Jr.
0000
Xxxxxxxxx Xxx
Xxxxxxxxx,
XX 00000
Xxxxxx
Xxxxxx of America
(000)
000-0000
xxxxxxx@xxxxxxxxxxxx.xxx
If
to the
Company:
Vice
President of Administration
Xxx
Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx,
Xxx Xxxxxx 00000
Fax:
(000) 000-0000
The
Consultant shall promptly notify the Company in writing, in accordance herewith,
of any change of address during the Consulting Period.
| (11) |
Disclosure.
The Consultant acknowledges that the identity of the Consultant may
be
publicly disclose and highlighted in the Company’s press releases, filings
and submissions to the U.S. Securities and Exchange Commission, and
by any
other means selected by the
Company.
|
| (12) |
Invalid
or Unenforceable Provisions.
In the event that any part of this Agreement shall be held to be
unenforceable or invalid, the remaining parts thereof shall nevertheless
continue to be valid and enforceable as though the invalid portions
were
not a part hereof.
|
| (13) |
Benefit
and Burden.
This Agreement shall inure to the benefit of, and shall be binding
upon,
the parties hereto and their respective legatees, distributees, executors,
administrators, personal or legal representatives, successors and
permitted assigns.
|
| (14) |
Indemnification.
The Consultant agrees to save and hold the Company harmless from
and
against any claim, loss or damage whatsoever (including reasonable
attorneys’ fees and other costs of enforcement of this Agreement) arising
out of a breach by the Consultant of his obligations under this Agreement.
The foregoing shall be in addition to, and not in limitation of,
any
rights the Company may have against the Consultant arising out of
or in
connection with this Agreement.
|
8
| (15) |
Modifications.
No change or modification of this Agreement shall be valid unless
the same
is in writing and signed by all the parties hereto. No waiver of
any
provision of this Agreement shall be valid unless in writing and
signed by
the party against whom it is sought to be enforced. The failure of
either
party at any time to insist upon strict performance of any condition,
promise, agreement or understanding set forth herein shall not be
construed as a waiver or relinquishment of the right to insist upon
strict
performance of the same or other conditions, promises, agreements
or
understandings at a future time.
|
| (16) |
Entire
Agreement.
This Agreement contains all of the promises, agreements, conditions,
understandings, warranties and representations between the parties
hereto
with respect to the subject matter hereof, and there are no promises,
agreements, conditions, understandings, warranties or representations,
oral or written, express or implied, between them with respect to
such
matters other than as set forth herein. Any and all prior agreements
between the parties hereto with respect to such matters are hereby
revoked
and are deemed null and void. This Agreement is intended by the parties
to
bean integration of any and all prior agreements or understandings,
oral
or written, with respect to the subject matter
hereof.
|
| (17) |
Governing
Law.
This Agreement, including without limitation, the interpretation,
construction, validity and enforceability thereof, shall be construed
and
enforced in accordance with and governed by the laws of the state
of New
York, without regard to such jurisdiction’s conflict of laws
principles.
|
| (18) |
Forum
Selection And Consent to Jurisdiction.
Any legal action or proceeding with respect to this Agreement may
be
brought in any state or federal court in the county of New York,
in the
state of New York and, by the execution and delivery of this Agreement,
the Company and the Consultant each hereby irrevocably accepts for
itself
or himself and in respect of any of its or his property, generally
and
unconditionally, the jurisdiction of the aforesaid courts. The Company
and
the Consultant further irrevocably consent to the service of process
out
of any of the aforementioned courts in any such action or proceeding
by
hand delivery or by registered or certified mail, postage prepaid,
to the
Company or the Consultant at the addresses set forth in Section 10,
such
service to become effective upon hand delivery (including by courier)
or
ten (10) days after such mailing. The Company and the Consultant
hereby
irrevocably waive to the fullest extent they may effectively do so,
any
objection they may have to venue and the defense of an inconvenient
forum
to the maintenance of such actions or
proceedings.
|
| (19) |
Headings.
The headings and other captions in this Agreement are for convenience
and
reference only and shall not be used in interpreting, construing
or
enforcing any of the provisions of this
Agreement.
|
9
| (20) |
Survival.
Notwithstanding anything contained in this Agreement to the Contrary,
the
covenants contained in Sections 7 and 8 shall survive the termination
of
this Agreement.
|
| (21) |
Counterparts.
This Agreement may be executed in two counterparts, each of which
shall be
deemed an original and both of which, taken together, shall constitute
one
and the same instrument. Any such counterpart may be executed by
facsimile
signature with only verbal confirmation, and when so executed and
delivered shall be deemed an original and such counterpart(s) together
shall constitute only one original.
|
[THE
BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
10
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
| MILLENNIUM CELL INC. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxx | |
|
Name: Xxxxxx Xxxxxx |
||
| Title: Vice President of Administration | ||
| CONSULTANT: | ||
| |
|
|
| /s/ Xxxxxxxxx X. “Xxx” Xxxxx, Jr. | ||
|
Name: Xxxxxxxxx X. “Bud” Xxxxx, Jr. |
||
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