TARGET TERMINATION AGREEMENT
Exhibit
10.4
This
Target Termination Agreement (this Agreement”)
is
entered into as of December 29, 2006 by and among Millennium Cell Inc., a
Delaware corporation (“MCEL”),
Gecko
Energy Technologies, Inc., a Delaware corporation (“Gecko”),
Xxxxxx X. Xxxxxx, an individual residing in the State of New Jersey
(“RJK”),
and
Xxxxxx X. Xxxxx, an individual residing in the State of New Jersey
(“SDP”).
Each
of MCEL, Gecko, RJK and SDP is referred to herein as a “Party”
and,
collectively, the “Parties.”
R
E C I T
A L S:
A. MCEL
and
Gecko are parties to that certain Joint Development Agreement, dated as of
February 15, 2006 (the “JDA”),
whereby MCEL and Gecko agreed to jointly develop planar fuel cell products
and
systems;
B. In
connection with the JDA, on February 15, 2006, MCEL and Gecko entered into
a
Stock Purchase Agreement (the “SPA”),
whereby Gecko agreed to sell to MCEL and MCEL agreed to purchase from Gecko,
shares of Gecko’s common stock, no par value per share (“Gecko
Common Stock”);
C. In
connection with the SPA, on February 00, 0000, XXXX, Xxxxx, XXX and SDP entered
into a Stockholders Agreement (the “SA”)
relating to the voting and transfer of Gecko Common Stock;
D. On
the
date hereof, MCEL, M.C.E. Venture, L.L.C., a Delaware limited liability company
and a wholly-owned subsidiary of MCEL (“Merger
Sub”),
and
Gecko, RJK and SDP have entered into an Agreement and Plan of Merger (the
“Merger
Agreement”),
whereby MCEL will acquire Gecko in a merger of Gecko with and into Merger Sub
(the “Merger”);
E.
Effective as of the effective time of the Merger (the “Effective
Time”)
and
subject to the terms set forth herein, each of MCEL and Gecko desire to
terminate each of the JDA and the SPA; and
F. Effective
as of the Effective Time and subject to the terms set forth herein, each of
MCEL, Gecko, RJK and SDP desire to terminate the SA.
NOW,
THEREFORE, the Parties hereby agree as follows:
1. Terminations.
(a) MCEL
and
Gecko hereby agree that as of the Effective Time, each of the JDA and the SPA
shall be terminated and of no further force or effect. For the avoidance of
doubt, MCEL and Gecko hereby acknowledge and agree to terminate all provisions
of the JDA and the SPA, including those provisions which, by the terms of the
JDA and/or the SPA, would otherwise survive a termination of the JDA, in each
case in a manner such that, as of the Effective Time, neither MCEL nor Gecko
shall have any rights or obligations whatsoever under the JDA.
(b) Each
Party hereby agrees that as of the Effective Time, the SA shall be terminated
and of no further force or effect.
2.
Releases.
(a) Except
for claims arising under the terms of this Agreement, each Party, on behalf
of
itself and its agents, trustees, directors, officers, employees,
representatives, successors and assigns (together, the “Releasing
Parties”)
for
and in consideration of the Parties’ agreement to effect the terminations
described in Sections 1 and 2 hereof, hereby knowingly and voluntarily releases
and discharges each other Party, together with its subsidiaries, affiliates,
past, present and future stockholders, managers, members, partners, officers,
directors, employees, agents and consultants, and their respective heirs,
executors, administrators, agents, trustees, employees, representatives,
successors, transferees or assignees, and any other person or entity acting
on
their behalf (collectively, the “Releasees”)
from
(and covenants not to institute, pursue or participate in any complaint, action,
suit, arbitration or other proceeding against the Releasees relating to) any
and
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions,
liabilities, costs, expenses, losses, claims and demands of any kind or
character whatsoever, in law, admiralty or equity (collectively, “Claims”),
from
the beginning of the world to the day of the date of this Agreement, whether
presently known or unknown, asserted or unasserted, which the Releasing Parties
ever had, now have or hereafter can, shall or may have against the Releasees
arising out of or by reason of the JDA, the SPA and/or the SA, the transactions
contemplated thereby and the termination thereof.
3. IP
Assignment Agreement.
For the
avoidance of doubt, nothing contained in this Agreement shall modify, limit
or
otherwise restrict the transactions contemplated by that certain IP Assignment
Agreement dated December 29, 2006 by and among Target and the Selling
Stockholders (as assignors) and Merger Sub (as assignee), including, without
limitation, the assignment by Target and the Selling Stockholders of the
Assignor Intellectual Property to Merger Sub.
4. Due
Authorization; Successors.
Each
Party represents and warrants that it has the power and authority to execute
and
deliver this Agreement and that this Agreement has been duly authorized and
constitutes a valid and binding agreement of such Party, enforceable in
accordance with its terms. This Agreement shall be binding upon the respective
successors in interest of the Parties hereto and shall inure to the benefit
of,
and be enforceable by, the respective successors in interest of the Parties
hereto.
5. Governing
Law.
This
Agreement and any dispute arising hereunder or in connection with the matters
contemplated hereby, whether in contract, tort or otherwise, shall be governed
in all respects by the internal laws of the State of New York,
without
giving effect to New York principles or rules of conflict of laws to the extent
such principles or rules would require or permit the application of the laws
of
another jurisdiction.
6. Counterparts.
This
Agreement may be executed by facsimile and in one or more counterparts, each
of
which shall be deemed an original copy of this Agreement, and all of which,
taken together, shall be deemed to constitute one and the same
agreement.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first above written.
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By:
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/s/
Xxxx Xxxxxx
|
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Name:
Xxxx Xxxxxx
|
|
Title:
President
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GECKO
ENERGY TECHNOLOGIES, INC.
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By:
|
/s/
Xxxxxx X. Xxxxxx
|
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Name:
Xxxxxx X. Xxxxxx
|
|
Title:
President
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/s/
Xxxxxx X. Xxxxxx
XXXXXX
X.
XXXXXX
/s/
Xxxxxx X. Xxxxx
XXXXXX
X.
XXXXX
