Contract
Exhibit
10.2
RESTRICTED
STOCK GRANT AGREEMENT (this “Agreement”)
dated
as of June 22, 2006 (the “Effective
Date”),
by
and between MILLENNIUM CELL INC., a Delaware corporation (the “Company”),
and
H. XXXXX XXXX, an individual residing at 00 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx
00000-0000 (“Grantee”).
WHEREAS,
Grantee and the Company are parties to that certain Employment Agreement dated
as of the date hereof (the “Employment
Agreement”);
WHEREAS,
the Company recognizes the contributions that Grantee will make to the Company’s
development in his role as Chief Executive Officer of the Company;
and
WHEREAS,
in order to reward Grantee for his efforts, on May 2, 2006 the Compensation
Committee of the Company’s Board of Directors approved the Company’s grant to
Grantee of fifty thousand (50,000) restricted shares (the “Restricted
Shares”)
of the
common stock, par value $.001 per share, of the Company (the “Common
Stock”),
subject to the terms, conditions and restrictions set forth in this Agreement,
the Employment Agreement and that certain Amended and Restated Millennium Cell
Inc. 2000 Stock Option Plan (the “Plan”).
NOW,
THEREFORE, in consideration of the above premises 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. Grant
of Restricted Shares.
Pursuant to the Plan and subject to the terms, conditions and restrictions
set
forth in this Agreement and in the Employment Agreement, upon execution of
this
Agreement, the Company shall grant to Grantee the Restricted Shares.
2. Grantee
Bound by Plan.
The
Plan is incorporated herein by reference and made a part hereof. The Plan shall
govern all aspects of this Agreement except as otherwise specifically stated
herein. Grantee hereby acknowledges receipt of a copy of the Plan and agrees
to
be bound by all the terms and provisions thereof. Capitalized terms used but
not
defined herein shall have the meanings ascribed to them in the Plan. The Plan
should be carefully examined before any decision is made to accept the
Restricted Shares.
3. Vesting
Schedule.
Subject
to the Plan, the Restricted Shares awarded to Grantee shall vest in twelve
consecutive equal monthly installments commencing on January 31, 2006, or,
if
earlier, upon the termination of Grantee’s employment with the Company for any
reason (including, but not limited to, for death or disability) other than
a
termination by the Company for Cause or Grantee’s resignation of employment. For
purposes of this Agreement, Grantee may be terminated for cause if Grantee:
(i)
is convicted of, or pleads guilty or nolo contendere, to a felony or (ii)
engages in willful gross neglect or willful gross misconduct in carrying out
his
duties under the Employment Agreement, resulting, in either case, in material
economic harm to the Company.
4. Restrictions
on Transfer.
Grantee
agrees that, in addition to any restrictions on transfer that may be imposed
under applicable state and federal securities laws and in the Plan, the
Restricted Shares shall be subject to the following restrictions on
transfer:
(a) Grantee
shall not, without the prior written consent of the Company, offer, transfer,
sell, pledge, assign, hypothecate or otherwise encumber or dispose of any
unvested Restricted Shares.
(b) Any
attempted assignment, transfer, pledge, hypothecation or other disposition
of
the Restricted Shares contrary to the provisions hereof, and the levy of any
execution, attachment or similar process upon the Restricted Shares, shall
be
null and void and without any force or effect.
5. Cancellation
of Restricted Shares.
In
addition to the terms and conditions set forth in the Plan, upon a termination
of the Employment Agreement by the Company for Cause or the resignation of
employment by Grantee, any unvested Restricted Shares shall automatically be
cancelled without any further action on behalf of the Company or
Grantee.
6. Dividends.
If and
when the Company shall declare any dividend or distribution on the Common Stock,
Grantee shall be entitled to receive all cash, securities, proceeds or assets
of
any kind in connection with such dividend or distribution with respect to his
vested and unvested Restricted Shares, if any.
7. Stock
Certificates.
(a) Custody
of Certificates.
The
Company shall hold the certificate(s) evidencing the Restricted Shares in its
custody until they have vested, and as a condition to the granting of the
Restricted Shares, Grantee shall deliver a stock power, substantially in the
form attached hereto as Exhibit
A-1,
endorsed in blank, relating to the Restricted Shares.
(b) Stock
Legends.
The
share certificates evidencing the Restricted Shares, both prior to and after
the
vesting thereof, shall have endorsed upon them in bold-faced type the following
legends (in addition to any legend(s) required under applicable state or federal
securities laws):
THIS
CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS
AND CONDITIONS (INCLUDING FORFEITURE PROVISIONS AND RESTRICTIONS AGAINST
TRANSFER) CONTAINED IN THE MILLENNIUM CELL INC. 2000 STOCK OPTION PLAN AND
A
RESTRICTED STOCK AWARD AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER
AND
MILLENNIUM CELL INC. RELEASE FROM SUCH TERMS AND CONDITIONS SHALL BE OBTAINED
ONLY IN ACCORDANCE WITH THE PROVISIONS OF THE PLAN AND AGREEMENT, A COPY OF
EACH
OF WHICH IS ON FILE IN THE OFFICE OF THE SECRETARY OF MILLENNIUM CELL
INC.
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS
UPON TRANSFER AND CANCELLATION AS SET FORTH IN A RESTRICTED STOCK GRANT
AGREEMENT DATED AS OF MAY [18], 2006, BETWEEN MILLENIUM CELL INC. (THE
“CORPORATION”), AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE CORPORATION.
8. Representations
and Warranties.
Grantee
represents to the Company that:
(a) Grantee
has relied solely upon the information, if any, requested of the Company and
upon his own due diligence in making the decision to acquire the Restricted
Shares. To the extent necessary, Grantee has retained, at his own expense,
and
relied upon the advice of, appropriate professionals regarding the investment,
tax and legal merits and consequences of the purchase of the Restricted
Shares. Grantee
covenants that the Restricted Shares were not offered or transferred to Grantee
by means of any form of general solicitation or general advertising, and in
connection therewith, Grantee did not: (I) receive or review any advertisement,
article, notice or other communication published in a newspaper or magazine
or
similar media or broadcast over television or radio whether closed circuit
or
generally available or (II) attend any seminar meeting or industry investor
conference whose attendees were invited by any general solicitation or general
advertising
(b) Grantee
acknowledges receipt of a copy of the Plan and represents that it is familiar
with the terms and provisions thereof, and hereby accepts this Restricted Stock
Grant subject to all of the terms and provisions thereof except as otherwise
specifically stated in this Agreement. Grantee has reviewed the Plan and this
Agreement in their entirety, has had an opportunity to obtain the advice of
counsel prior to executing this Agreement and fully understands all provisions
of the Plan and this Agreement. Grantee hereby agrees to accept as binding,
conclusive and final all decisions or interpretations of the Board or Committee
(both as defined in the Plan) upon any questions arising under the Plan; and
(c) Grantee
acknowledges agree that, as a condition to each vesting of the Restricted
Shares, the representations and warranties of this Section 8 shall be true
and
correct as of such vesting date as if they had been made on such date with
respect to the vested Restricted Shares.
(d) Grantee
acknowledges that the Restricted Shares may only be transferred or otherwise
disposed of pursuant to (i) a registration statement on Form S-8 upon delivery
of a resale prospectus to the recipient of the Restricted Shares, as long as
Grantee is an affiliate of the Company, (ii) an effective registration statement
under the Securities Act of 1933 (the “Act”)
or
(iii) pursuant to an exemption from registration under the Act.
(e) Grantee
acknowledges that the transfer of the Restricted Shares is restricted by the
terms of this Agreement and the Plan, and Grantee must therefore hold the
Restricted Shares indefinitely unless a subsequent disposition of the Restricted
Shares is permitted under the terms of this Agreement.
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(f) Grantee
acknowledges that, given the restrictions on transfer acknowledged above, he
is
able to bear the economic risk of holding the Restricted Shares for an
indefinite period of time and can afford a complete loss of the value of the
Restricted Shares.
(g) Grantee
agrees and acknowledges that the Company may, if it so desires and subject
to
Section 3, permit the transfer of the Restricted Shares out of Grantee’s name
only when Grantee’s request for transfer is accompanied by an opinion of counsel
reasonably satisfactory to the Company and its counsel that neither the sale
nor
the proposed transfer results in a violation of the Act or any state securities
or “blue sky” laws (collectively, “Securities
Laws”).
Grantee agrees to hold the Company and its directors, officers, agents and
controlling persons and their respective heirs, representatives, successors
and
assigns harmless and to indemnify them from and against all liabilities, costs
and expenses incurred by them as a result of any misrepresentation made by
Grantee contained herein or any sale or distribution by Grantee in violation
of
the Securities Laws.
(h) Grantee
represents that the receipt of the Restricted Shares by Grantee will not result
in the violation by Grantee of any law, statute, rule, regulation, order, writ,
injunction, judgment or decree of any court or governmental authority to or
by
which Grantee is bound, including, without limitation, United States laws and
other laws that may be applicable to Grantee and will not conflict with, or
result in a material breach or violation of, any of the terms or provisions
of,
or constitute (with due notice or lapse of time or both) a material default
under, any material lease, loan agreement, mortgage, security agreement, trust
indenture or other agreement or instrument to which Grantee is a party or by
which Grantee is bound or to which Grantee’s material properties or assets is
subject, nor result in the creation or imposition of any lien upon any of the
material properties or assets of Grantee.
(i) Grantee
acknowledges and agrees that this Agreement is not a contract of employment
and
that nothing in this Agreement shall confer upon Grantee any right with respect
to continuation of service to or employment by the Company, nor shall it
interfere in any way with his right or the Company’s right to terminate his
service to or employment by the Company at any time, with or without
cause.
(j) Grantee
acknowledges and agrees that the vesting of shares pursuant to this Agreement
is
earned only through Grantee’s continued and satisfactory employment by the
Company or its subsidiaries or affiliates and not through the grant of the
Restricted Shares hereunder.
(k) Grantee
hereby accepts this Agreement subject to all of the terms and provisions hereof.
Grantee has reviewed this Agreement in its entirety, has had an opportunity
to
obtain the advice of counsel prior to executing this Agreement, and fully
understands all provisions of this Agreement.
(l) Grantee
acknowledges that the Company and its counsel are entitled to rely on the
representations made above.
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9. Tax
and Financial Consequences.
Grantee
has reviewed with Grantee’s own tax and financial advisors the federal, state,
local and foreign tax consequences of this Agreement. Grantee is relying solely
on such advisors and not on any statements or representations of the Company
or
any of its agents. Grantee understands that Grantee (and not the Company) shall
be responsible for Grantee’s own tax liability that may arise as result of the
transactions contemplated by this Agreement. Grantee understands that Section
83
of the Internal Revenue Code of 1986, as amended from time to time (the
“Code”),
taxes
as ordinary income the fair market value, as defined by the Code, of the
Restricted Shares as of the date they become “substantially vested” within the
meaning of Section 1.83-3(b) of the regulations promulgated pursuant to Section
83 of the Code. Grantee understands that Grantee may elect to be taxed at the
time the Restricted Shares are granted, rather than at the time, if any, that
they become substantially vested, by filing an election under Section 83(b)
of
the Code with the Internal Revenue Service within 30 days from the date of
grant.
GRANTEE
ACKNOWLEDGES THAT IT IS GRANTEE’S SOLE RESPONSIBILITY AND NOT THE COMPANY’S TO
FILE A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN IF GRANTEE REQUESTS THE
COMPANY, OR ITS REPRESENTATIVES, TO MAKE THIS FILING ON GRANTEE’S
BEHALF.
10. Consent
of Spouse.
As a
further condition to the Company’s obligations under this Agreement, the Company
may require the spouse of Grantee, if any, to execute and deliver to the Company
the Consent of Spouse attached hereto as Exhibit
A-2.
11. Notices.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to the Company 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 Grantee. Any notice required to be given or
delivered to Grantee shall be in writing and addressed to the most recent
address of Grantee, as set forth in the books and records of the Company. 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, the Employment Agreement and the Plan 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 Agreement and the Employment Agreement, that are not
fully expressed herein or therein.
13. Counterparts.
This
Agreement may be signed in one or more counterparts, all of which shall be
considered one and the same agreement.
14. Further
Assurances.
Each
party to this Agreement agrees to perform all further acts and to execute and
deliver all further documents as may be reasonably necessary to carry out the
intent of this Agreement.
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15. Severability.
If any
provision of this Agreement or any other agreement or document delivered in
connection with this Agreement, if any, are held to be partially or completely
invalid or unenforceable in any jurisdiction, then such unenforceable provisions
shall be automatically replaced by a provision as similar in terms as may be
valid and enforceable in that jurisdiction, but the invalidity or
unenforceability of that provision shall not affect the validity or
enforceability of any other provision of this Agreement, all of which shall
be
construed and enforced as if that invalid or unenforceable provision were
omitted, nor shall the invalidity or unenforceability of that provision in
one
jurisdiction affect its validity or enforceability in any other
jurisdiction.
16. Construction.
Whenever used in this 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 Agreement have been inserted for purposes of convenience
and shall not be used for interpretive purposes.
17. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Delaware, without regard to the conflicts of laws principles of such
State.
18. Submission
to Jurisdiction.
Any and
all suits, legal actions or proceedings against any party hereto arising out
of
this Agreement shall be brought in any United States federal court sitting
in
the State of New 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.
19. Successors.
The
rights and obligations of the Company under this Agreement shall be transferable
to any successor thereto. The rights and obligations of Grantee under this
Agreement may only be assigned with the prior written consent of the Company.
20. Amendment.
This
Agreement may only be amended by the written consent of the parties to this
Agreement at the time of such amendment.
21. No
Waiver.
Either
party’s failure to enforce any of the provisions of this Agreement shall not in
any way be construed as a waiver of any such provision, nor prevent that party
from thereafter enforcing any other provision of this Agreement. The rights
granted both parties hereunder are cumulative and shall not constitute a waiver
of either party’s right to assert any other available legal remedy.
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IN
WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the
date first set forth above.
By:
/s/G. Xxxxx Xxxxxxxx
Name:
G.
Xxxxx Xxxxxxxx
Title:
Chairman of the Board
/s/H.
Xxxxx Xxxx
H.
Xxxxx Xxxx
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EXHIBIT
A-1
STOCK
POWER
ASSIGNMENT
SEPARATE
FROM
CERTIFICATE
FOR
VALUE
RECEIVED, the undersigned hereby sells, assigns and transfers unto
_____________________, fifty thousand (50,000) restricted shares of Common
Stock
of MILLENIUM CELL INC., standing in the undersigned’s name on the books of said
Company, represented by the within Certificate No. ___, and hereby irrevocably
constitutes and appoints _______________________ attorney to transfer the said
shares on the books of the within named Company with full power of substitution
in the premises.
Dated:
_____________________
H.
Xxxxx
Xxxx
EXHIBIT
A-2
CONSENT
OF SPOUSE
I,
_____________________, spouse of H. Xxxxx Xxxx, have read and approve the
foregoing Restricted Stock Grant Agreement dated as of June 22, 2006 (the
“Agreement”).
In
consideration of the grant by Millennium Cell Inc. (the “Company”),
to my
spouse of the restricted shares (the “Restricted
Shares”)
of
common stock, par value $.001 per share, of the Company, as set forth in the
Agreement, I hereby appoint my spouse as my attorney-in-fact in respect to
the
exercise of any right under the Agreement and agree to be bound by the
provisions of the Agreement insofar as I may have any rights in said Agreement
or the Restricted Shares issued pursuant thereto under the community property
laws or similar laws relating to marital property in effect in the state of
our
residence as of the date of the signing of the Agreement.
Dated:
________________, 2006
_______________________________
Signature
of Spouse
