SECURITY AGREEMENT
Exhibit
10.4
SECURITY
AGREEMENT, dated
as of April 25, 2005 (this "Agreement") made
by Millennium Cell Inc., a Delaware corporation, ("Grantor"), in
favor of Portside Growth & Opportunity Fund, a company organized under the
laws of the Cayman Islands in its capacity as collateral agent (in such
capacity, the "Collateral
Agent") for
the "Buyers" (as
defined below) party to the Securities Purchase Agreement, dated as of even date
herewith (as amended, restated or otherwise modified from time to time, the
"Securities
Purchase Agreement").
W I T N E S S E T H:
WHEREAS,
Grantor and each party listed as a "Buyer" on the Schedule of Buyers attached
thereto (collectively, the "Buyers") are
parties to the Securities Purchase Agreement, pursuant to which Grantor shall be
required to sell, and the Buyers shall purchase or have the right to purchase,
the "Preferred
Shares" (as
defined therein);
WHEREAS,
it is a condition precedent to the Buyers entering into the Securities Purchase
Agreement that Grantor shall have executed and delivered to the Collateral Agent
this Agreement providing for the grant to the Collateral Agent for the benefit
of the Buyers of a security interest in certain segregated cash and cash
equivalents held in the Cash Collateral Account to provide for the payment of
dividends with respect to the Preferred Shares and to secure all of Grantor's
obligations under the Securities Purchase Agreement and the "Certificate
of Designations" (as
defined therein); and
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Buyers to perform under the Securities Purchase Agreement,
the Grantor agrees with the Collateral Agent, for the benefit of the Buyers, as
follows:
SECTION
1. Definitions.
(a) Reference
is hereby made to the Securities Purchase Agreement and the Certificate of
Designations for a statement of the terms thereof. All terms used in this
Agreement and the recitals hereto which are defined in the Securities Purchase
Agreement, the Certificate of Designations or in Articles 8 or 9 of the Uniform
Commercial Code (the "Code") as in
effect from time to time in the State of New York, and which are not otherwise
defined herein shall have the same meanings herein as set forth therein;
provided that
terms used herein which are defined in the Code as in effect in
the State of New York on the date hereof shall continue to have the same meaning
notwithstanding any replacement or amendment of such statute except as the
Collateral Agent may otherwise determine.
(b) The
following terms shall have the respective meanings provided for in the Code:
"Cash Proceeds", "Deposit Account", "Financial Assistance", "Instruments",
"Investment Property", "Noncash Proceeds", "Proceeds", "Security", "Record" and
"Securities Account".
(c) As used
in this Agreement, the following terms shall have the respective meanings
indicated below, such meanings to be applicable equally to both the singular and
plural forms of such terms:
"Account
Control Agreement" has the
meaning specified in Section 4(p) of the Securities Purchase
Agreement.
"Cash
Collateral Account" means
the deposit account established pursuant to Section 4(p) of the Securities
Purchase Agreement.
"Cash
Collateral Bank" has the
meaning specified in Section 4(p) of the Securities Purchase
Agreement.
"Insolvency
Proceeding" means
any proceeding commenced by or against any Person under any provision of the
Bankruptcy Code (Chapter 11 of Title 11 of the United States Code) or under
any other bankruptcy or insolvency law, assignments for the benefit of
creditors, formal or informal moratoria, compositions, or extensions generally
with creditors, or proceedings seeking reorganization, arrangement, or other
similar relief.
"Lien" means
any mortgage, deed of trust, pledge, lien (statutory or otherwise), security
interest, charge or other encumbrance or security or preferential arrangement of
any nature, including, without limitation, any conditional sale or title
retention arrangement, any capitalized lease and any assignment, deposit
arrangement or financing lease intended as, or having the effect of,
security.
SECTION
2. Grant
of Security Interest. As
collateral security for all of the "Obligations" (as
defined in Section
3 hereof),
the Grantor hereby pledges and assigns to the Collateral Agent for the benefit
of the Buyers, and grants to the Collateral Agent for the benefit of the Buyers
a continuing security interest in the Cash
Collateral Account, all cash, and all other property from time to time deposited
therein and all
Proceeds, including all Cash Proceeds and Noncash Proceeds (if any) of the
foregoing (collectively, the "Collateral"), and
products of any and all of the foregoing Collateral, in each case howsoever the
Grantor's interest therein may arise or appear (whether by ownership, security
interest, claim or otherwise).
SECTION
3. Security
for Obligations. The
security interest created hereby in the Collateral constitutes continuing
collateral security for all of the following obligations, whether now existing
or hereafter incurred (collectively, the "Obligations"):
(a) (i) the
payment by Grantor, as and when due and payable (at scheduled maturity, required
redemption, occurrence of Liquidation Event, demand or otherwise), of all
amounts from time to time owing by it in respect of the Securities Purchase
Agreement, the Preferred Shares, including, without limitation, any cash or in
kind dividends thereon (without regard to whether such amounts are express to be
junior to any other outstanding preferred sock of the Company) and the other
"Transaction
Documents" (as
defined in the Securities Purchase Agreement); and
(b) the due
performance and observance by the Grantor of all of its other obligations from
time to time existing in respect of any of the Transaction Documents, including
without limitation, with respect to any conversion or redemption rights of the
Buyers under the Preferred Shares, for so long as the Preferred Shares are
outstanding.
SECTION
4. Representations
and Warranties. The
Grantor represents and warrants as follows:
(a) Schedule
I hereto
sets forth (i) the exact legal name of the Grantor, and (ii) the organizational
identification number of the Grantor or states that no such organizational
identification number exists.
(b) There is
no pending or written notice threatening any action, suit, proceeding or claim
affecting the Grantor before any governmental authority or any arbitrator, or
any order, judgment or award by any governmental authority or arbitrator, that
may adversely affect the grant by the Grantor, or the perfection, of the
security interest purported to be created hereby in the Collateral, or the
exercise by the Collateral Agent of any of its rights or remedies
hereunder.
(c) All
Federal, state and local tax returns and other reports required by applicable
law to be filed by the Grantor have been filed, or extensions have been
obtained, and all taxes, assessments and other governmental charges imposed upon
the Grantor or any property of the Grantor (including, without limitation, all
federal income and social security taxes on employees' wages) and which have
become due and payable on or prior to the date hereof have been paid, except to
the extent contested in good faith by proper proceedings which stay the
imposition of any penalty, fine or Lien resulting from the non-payment thereof
and with respect to which adequate reserves have been set aside for the payment
thereof in accordance with generally accepted accounting principles consistently
applied ("GAAP").
(d) The
Grantor is and agrees to take any and all actions to ensure that it will remain
the sole and exclusive owner of, or otherwise has or will have adequate rights
in, the Collateral free and clear of any Liens other than the rights of the Cash
Collateral Bank. No effective financing statement or other instrument similar in
effect covering all or any part of the Collateral is on file with the Secretary
of State of New Jersey or the recorder of deeds of Monmouth County, New Jersey
except such as may have been filed in favor of the Collateral Agent relating to
this Agreement.
(e) The
exercise by the Collateral Agent of any of its rights and remedies hereunder
will not contravene any law or any contractual restriction binding on or
otherwise affecting the Grantor or any of its properties and will not result in
or require the creation of any Lien, upon or with respect to any of its
properties.
(f) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or other regulatory body, or any other Person (other
than the Company in the case of exercise of remedies), is required for
(i) the grant by the Grantor, or the perfection, of the security interest
purported to be created hereby in the Collateral, or (ii) the exercise by
the Collateral Agent of any of its rights and remedies hereunder, except for the
filing under the Uniform Commercial Code as in effect in the applicable
jurisdiction of the financing statements, all of which financing statements,
have been duly filed and are in full force and effect.
(g) This
Agreement creates in favor of the Collateral Agent a legal, valid and
enforceable security interest in the Collateral, as security for the
Obligations. The Account Control Agreement and/or the Collateral Agent's having
possession of all Instruments and cash constituting Collateral from time to
time, the recording of the appropriate, and the filing of the financing
statements and the other filings and recordings, as applicable, described in
Schedule
I hereto
will result in the protection of such security interests. Such security
interests are, or in the case of Collateral in which the Grantor obtains rights
after the date hereof, will be, perfected, first priority security interests.
Such recordings and filings and all other action necessary or desirable to
perfect and protect such security interests have been duly taken with respect to
assets held in the Cash Collateral Account.
SECTION
5. Covenants
as to the Collateral. So long
as any of the Obligations shall remain outstanding, unless the Collateral Agent
shall otherwise consent in writing:
(a) Further
Assurances. The
Grantor will at its expense, at any time and from time to time, promptly execute
and deliver all further instruments and documents and take all further action
that the Collateral Agent may reasonably request in order to: (i) perfect
and protect the security interest purported to be created hereby;
(ii) enable the Collateral Agent to exercise and enforce its rights and
remedies hereunder in respect of the Collateral; or (iii) otherwise effect
the purposes of this Agreement, including, without limitation:
(A) executing and filing (to the extent, if any, that the Grantor's
signature is required thereon) or authenticating the filing of, such financing
or continuation statements, or amendments thereto, as may be necessary or
desirable or that the Collateral Agent may request in order to perfect and
preserve the security interest purported to be created hereby, and
(B) furnishing to the Collateral Agent from time to time statements and
schedules further identifying and describing the Collateral.
(b) Transfers
and Other Liens.
(i) The
Grantor will not sell, assign (by operation of law or otherwise), exchange or
otherwise transfer or dispose of any of the Collateral other
than the rights of the Cash Collateral Bank.
(ii) The
Grantor will not create, suffer to exist or grant any Lien upon or with respect
to any Collateral, except the Lien created hereby.
SECTION
6. Additional
Provisions Concerning the Collateral.
(a) The
Grantor hereby (i) authorizes the Collateral Agent to file one or more
Uniform Commercial Code financing or continuation statements, and amendments
thereto, relating to the Collateral and (ii) ratifies such authorization to
the extent that the Collateral Agent has filed any such financing or
continuation statements, or amendments thereto, prior to the date hereof. A
photocopy or other reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law.
(b) The
Grantor hereby irrevocably appoints the Collateral Agent as its attorney-in-fact
and proxy, with full authority in the place and stead of the Grantor and in the
name of the Grantor or otherwise, from time to time in the Collateral Agent's
discretion, so long as (x) a Liquidation Event shall have occurred and is
continuing or (y) the Company has failed to pay any Obligation when due, whether
in cash or in kind as permitted pursuant to the Certificate of Designation, and
such failure to pay is continuing for a period of at least five (5) Business
Days, to take any action and to execute any instrument which the Collateral
Agent may deem necessary or advisable to accomplish the purposes of this
Agreement, including, without limitation, (i) to ask, demand, collect, xxx for,
recover, compound, receive and give acquittance and receipts for moneys due and
to become due under or in respect of the Collateral, (ii) to receive, endorse,
and collect any drafts or other instruments, documents and chattel paper in
connection with clause (i) above, (iii) to file any claims or take any action or
institute any proceedings which the Collateral Agent may deem necessary or
desirable for the collection of any Collateral or otherwise to enforce the
rights of the Collateral Agent and the Buyers with respect to any Collateral,
and (iv) to execute assignments and other documents to enforce the rights of the
Collateral Agent and the Buyers with respect to any Collateral. This power is
coupled with an interest and is irrevocable until all of the Obligations are
indefeasibly paid in full in cash.
(c) If a
Grantor fails to perform any agreement contained herein, the Collateral Agent
may itself perform, or cause performance of, such agreement or obligation, in
the name of the Grantor or the Collateral Agent, and the expenses of the
Collateral Agent incurred in connection therewith shall be payable by the
Grantor pursuant to Section
8 hereof
and shall be secured by the Collateral.
(d) The
powers conferred on the Collateral Agent hereunder are solely to protect its
interest in the Collateral and shall not impose any duty upon it to exercise any
such powers. Except for the safe custody of any Collateral in its possession and
the accounting for moneys actually received by it hereunder, the Collateral
Agent shall have no duty as to any Collateral or as to the taking of any
necessary steps to preserve rights against prior parties or any other rights
pertaining to any Collateral.
SECTION
7. Remedies
Upon Failure to Pay the Obligations. If any
failure to pay any of the Obligations has occurred and be
continuing:
(a) The
Collateral Agent may exercise in respect of the Collateral, in addition to any
other rights and remedies provided for herein or otherwise available to it, all
of the rights and remedies of a secured party upon default under the Code
(whether or not the Code applies to the affected Collateral), and also may
(i) take absolute control of a portion of the Collateral equal to the
amount of the Obligations which is then due but not paid, including, without
limitation, transfer into the Collateral Agent's name or into the name of its
nominee or nominees (to the extent the Collateral Agent has not theretofore done
so) a portion of the Collateral equal to the amount of the Obligations which is
then due but not paid or any part thereof consisting of cash equivalents, for
cash at such price or prices and upon such other terms as the Collateral Agent
may deem commercially reasonable. The Grantor agrees that, to the extent notice
of sale or any other disposition of its respective Collateral shall be required
by law, at least ten (10) days' notice to the Grantor of the time and place of
any public sale or the time after which any private sale or other disposition of
its respective Collateral is to be made shall constitute reasonable
notification. The Collateral Agent shall not be obligated to make any sale or
other disposition of any Collateral regardless of notice of sale having been
given. The Collateral Agent may adjourn any public or private sale from time to
time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. The Grantor hereby waives any claims against the Collateral Agent and
the Buyers arising by reason of the fact that the price at which its respective
Collateral may have been sold at a private sale was less than the price which
might have been obtained at a public sale or was less than the aggregate amount
of the Obligations, even if the Collateral Agent accepts the first offer
received and does not offer such Collateral to more than one offeree, and waives
all rights that the Grantor may have to require that all or any part of such
Collateral be marshalled upon any sale (public or private) thereof. The Grantor
hereby acknowledges that (i) any such sale of its respective Collateral by
the Collateral Agent shall be made without warranty, (ii) the Collateral
Agent may specifically disclaim any warranties of title, possession, quiet
enjoyment or the like, and (iii) such actions set forth in clauses (i)
and (ii) above shall not adversely effect the commercial reasonableness of any
such sale of Collateral.
(b) A portion
of the cash held in the Cash Collateral Account equal to the amount of the
Obligations which is then due but not paid and all Cash Proceeds received by the
Collateral Agent in respect of any sale of or collection from, or other
realization upon, all or any part of the Collateral may, in the discretion of
the Collateral Agent, be held by the Collateral Agent as collateral for, and/or
then or at any time thereafter applied (after payment of any amounts payable to
the Collateral Agent pursuant to Section
8 hereof)
in whole or in part by the Collateral Agent against, all or any part of the
Obligations in such order as the Collateral Agent shall elect, consistent with
the provisions of the Securities Purchase Agreement. Any surplus of such cash or
Cash Proceeds held by the Collateral Agent and remaining after the indefeasible
payment in full in cash of all of the Obligations shall be paid over to
whomsoever shall be lawfully entitled to receive the same or as a court of
competent jurisdiction shall direct.
(c) In the
event that the cash held in the Cash Collateral Account of Cash Proceeds of any
such sale, collection or realization are insufficient to pay the amount of the
Obligations which is then due but not paid, the Grantor shall remain liable for
the deficiency, together with interest thereon at the highest rate specified in
any of the applicable Transaction Documents for interest on overdue amount
thereof or such other rate as shall be fixed by applicable law, together with
the costs of collection and the reasonable fees, costs, expenses and other
client charges of any attorneys employed by the Collateral Agent to collect such
deficiency.
(d) The
Grantor hereby acknowledges that if the Collateral Agent complies with any
applicable state, provincial, or federal law requirements in connection with a
disposition of the Collateral, such compliance will not adversely affect the
commercial reasonableness of any sale or other disposition of the
Collateral.
(e) The
Collateral Agent shall not be required to marshal any present or future
collateral security (including, but not limited to, this Agreement and the
Collateral) for, or other assurances of payment of, the Obligations or any of
them or to resort to such collateral security or other assurances of payment in
any particular order, and all of the Collateral Agent's rights hereunder and in
respect of such collateral security and other assurances of payment shall be
cumulative and in addition to all other rights, however existing or arising. To
the extent that the Grantor lawfully may, the Grantor hereby agrees that it will
not invoke any law relating to the marshalling of collateral which might cause
delay in or impede the enforcement of the Collateral Agent's rights under this
Agreement or under any other instrument creating or evidencing any of the
Obligations or under which any of the Obligations is outstanding or by which any
of the Obligations is secured or payment thereof is otherwise assured, and, to
the extent that it lawfully may, the Grantor hereby irrevocably waives the
benefits of all such laws.
SECTION
8. Indemnity
and Expenses.
(a) The
Grantor agrees to protect, indemnify and hold the Collateral Agent and each of
the Buyers, jointly and severally, harmless from and against any and all claims,
damages (other than lost profits and consequential or incidental damages),
losses, liabilities, obligations, penalties, fees, costs and expenses
(including, without limitation, reasonable legal fees, costs, expenses, and
disbursements of such Person's counsel) to the extent that they arise out of or
otherwise result from the Grantor’s breach of this Agreement (including, without
limitation, enforcement of this Agreement), except claims, losses or liabilities
resulting from such Person's gross negligence, bad faith or willful
misconduct.
(b) The
Grantor agrees to upon demand pay to the Collateral Agent the amount of any and
all costs and expenses, including the reasonable fees, costs, expenses and
disbursements of counsel for the Collateral Agent and of any experts and agents
(including, without limitation, any collateral trustee which may act as agent of
the Collateral Agent), which the Collateral Agent may incur in connection with
(i) the preparation, negotiation, execution, delivery, recordation,
administration, amendment, waiver or other modification or termination of this
Agreement, (ii) the custody, preservation, use or operation of, or the sale
of, collection from, or other realization upon, any Collateral, (iii) the
exercise or enforcement of any of the rights of the Collateral Agent hereunder,
or (iv) the failure by any Grantor to perform or observe any of the
provisions hereof.
SECTION
9. Notices,
Etc. All
notices and other communications provided for hereunder shall be in writing and
shall be mailed (by certified mail, postage prepaid and return receipt
requested), telecopied or delivered, if to a Grantor at its address specified
below and if to the Collateral Agent to it, at its address specified below; or
as to any such Person, at such other address as shall be designated by such
Person in a written notice to such other Person complying as to delivery with
the terms of this Section
9. All
such notices and other communications shall be effective (a) if sent by
certified mail, return receipt requested, when received or three days after
deposited in the mails, whichever occurs first, (b) if telecopied, when
transmitted (during normal business hours) and confirmation is received,
otherwise, the day after the notice was transmitted if confirmation is received,
or (c) if delivered, upon delivery.
SECTION
10. Miscellaneous.
(a) No
amendment of any provision of this Agreement shall be effective unless it is in
writing and signed by the Grantor and the Collateral Agent, and no waiver of any
provision of this Agreement, and no consent to any departure by a Grantor
therefrom, shall be effective unless it is in writing and signed by the
Collateral Agent, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
(b) No
failure on the part of the Collateral Agent to exercise, and no delay in
exercising, any right hereunder or under any of the other Transaction Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The rights and remedies of the Collateral Agent or any Buyer
provided herein and in the other Transaction Documents are cumulative and are in
addition to, and not exclusive of, any rights or remedies provided by law. The
rights of the Collateral Agent or any Buyer under any of the other Transaction
Documents against any party thereto are not conditional or contingent on any
attempt by such Person to exercise any of its rights under any of the other
Transaction Documents against such party or against any other Person, including
but not limited to, any Grantor.
(c) Any
provision of this Agreement that 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 portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
(d) This
Agreement shall create a continuing security interest in the Collateral and
shall (i) remain in full force and effect until the indefeasible payment in full
in cash of the Obligations, and (ii) be binding on the Grantor and all other
Persons who become bound as debtor to this Agreement in accordance with Section
9-203(d) of the Code and shall inure, together with all rights and remedies of
the Collateral Agent and the Buyers hereunder, to the benefit of the Collateral
Agent and the Buyers and their respective permitted successors, transferees and
assigns. Without limiting the generality of clause (ii) of the immediately
preceding sentence, without notice to any Grantor, the Collateral Agent and the
Buyers may assign or otherwise transfer their rights and obligations under this
Agreement and any of the other Transaction Documents, to any other Person and
such other Person shall thereupon become vested with all of the benefits in
respect thereof granted to the Collateral Agent and the Buyers herein or
otherwise. Upon any such assignment or transfer, all references in this
Agreement to the Collateral Agent or any such Buyer shall mean the assignee of
the Collateral Agent or such Buyer. None of the rights or obligations of any
Grantor hereunder may be assigned or otherwise transferred without the prior
written consent of the Collateral Agent, and any such assignment or transfer
without the consent of the Collateral Agent
shall be null and void.
(e) Upon the
indefeasible payment in full in cash of the Obligations, (i) this Agreement and
the security interests created hereby shall terminate and all rights to the
Collateral shall revert to the respective Grantor that granted such security
interests hereunder, and (ii) the Collateral Agent will, upon the Grantor's
request and at the Grantor's expense, (A) return to the Grantor such of the
Collateral as shall not have been sold or otherwise disposed of or applied
pursuant to the terms hereof, and (B) promptly execute and deliver to the
Grantor such documents as the Grantor shall reasonably request to evidence such
termination, all without any representation, warranty or recourse
whatsoever.
(f) THIS
AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW
AND EXCEPT TO THE EXTENT THAT THE VALIDITY AND PERFECTION OR THE PERFECTION AND
THE EFFECT OF PERFECTION OR NON-PERFECTION OF THE SECURITY INTEREST CREATED
HEREBY, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE
GOVERNED BY THE LAW OF A JURISDICTION OTHER THAN THE STATE OF NEW
YORK.
(g) ANY LEGAL
ACTION, SUIT OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY DOCUMENT
RELATED THERETO MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE
COUNTY OF NEW YORK OR THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF
NEW YORK, AND APPELLATE COURTS THEREOF, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE GRANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE
GRANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION, SUIT OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND CONSENTS TO THE GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY THE COURT.
(h) THE
GRANTOR AND (BY ITS ACCEPTANCE OF THE BENEFITS OF THIS AGREEMENT) THE COLLATERAL
AGENT WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF
THE OTHER TRANSACTION DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
VERBAL OR WRITTEN STATEMENT OR OTHER ACTION OF THE PARTIES HERETO.
(i) The
Grantor irrevocably consents to the service of process of any of the aforesaid
courts in any such action, suit or proceeding by the mailing of copies thereof
by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to the Grantor at its address provided herein, such service to
become effective 10 days after such mailing.
(j) Nothing
contained herein shall affect the right of the Collateral Agent to serve process
in any other manner permitted by law or commence legal proceedings or otherwise
proceed against any Grantor or any property of the Grantor in any other
jurisdiction.
(k) The
Grantor irrevocably and unconditionally waives any right it may have to claim or
recover in any legal action, suit or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
(l) Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(m) This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together constitute one in the same
Agreement.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the Grantor has caused this Agreement to be executed and
delivered by its officer thereunto duly authorized, as of the date first above
written.
| MILLENNIUM CELL INC. | ||
| By: |
/s/ Xxxx
X. Xxxxxx | |
|
Name: Xxxx X. Xxxxxx | ||
| Title: Vice President — Finance and Chief Financial Officer | ||
| Address: | Xxx Xxxxxxxxxx Xxx Xxxx | |
|
Xxxxxxxxx,
Xxx Xxxxxx 00000 | ||
| ACCEPTED BY: | ||
| PORTSIDE GROWTH OPPORTUNITY FUND, | ||
| as Collateral Agent | ||
| By: /s/ Xxxxxxx Xxxxx | ||
| Name: Xxxxxxx Xxxxx | ||
| Title: Authorized Signatory | ||
| Address: | c/o Ramius Capital Group, L.L.C. | |
| 000 Xxxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
SCHEDULE
I
LEGAL
NAMES; ORGANIZATIONAL IDENTIFICATION NUMBERS; STATES OR JURISDICTION OF
ORGANIZATION
Millennium
Cell Inc. Delaware Corporation - Tax ID number is 00-0000000
SCHEDULE
II
UCC-1
FINANCING STATEMENTS
