Exhibit 10.1
EMPLOYMENT AGREEMENT dated as of July 14, 2004 (the
"Employment Agreement"), 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 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 employs Executive, and
Executive hereby accepts such employment, under and subject to all of the terms,
conditions and provisions hereof, for a six month term commencing as of March
19, 2004, and ending on the close of business on September 18, 2004 (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.
2. Duties. During the Employment Term, Executive will be
employed as Millennium Cell's President and 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 one
hundred thousand (100,000) 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 and in that certain Restricted Stock
Grant Agreement dated as of the date hereof (the "Grant Agreement") issued by
Millennium Cell to Executive.
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.
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.
(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.
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
[GRAPHIC OMITTED]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.
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.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Employment Agreement as of the day and year first set forth
above.
/s/H. Xxxxx Xxxx
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H. Xxxxx Xxxx
MILLENNIUM CELL INC.
By: /s/G. Xxxxx Xxxxxxxx
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Name: G. Xxxxx Xxxxxxxx
Title: Chairman of the Board
