VOTING AGREEMENT
Exhibit
10.6
VOTING
AGREEMENT, dated as of April 25, 2005 (this "Agreement"), by
and among Millennium Cell Inc., a Delaware corporation, with headquarters
located at Xxx Xxxxxxxxxx Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the
"Company"), and
___________ (the "Stockholder").
WHEREAS, the
Company and certain investors (each, a "Buyer", and
collectively, the "Buyers") have
entered into a Securities Purchase Agreement, dated as of the date hereof (the
"Securities
Purchase Agreement"),
pursuant to which, among other things, the Company has agreed to issue and sell
to the Buyers and the Buyers have, severally but not jointly, agreed to purchase
(i) shares of the Company's Series C Convertible Preferred Stock, par value
$.001 per share (the "Preferred
Shares"), which
will, among other things, be convertible into the Company's common stock, $.001
par value per share (the "Common
Stock") and
(ii) warrants ("Warrants") to
purchase shares of Common Stock. Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to such terms in the Securities
Purchase Agreement.
WHEREAS,
as of the date hereof, (i) the Stockholder owns the number of shares of Common
Stock set forth below such Stockholder’s name on the signature page hereto and
(ii) the Stockholder owns options (the "Options") to
purchase the number of shares of Common Stock set forth below such Stockholder’s
name on the signature page hereto (the "Option
Shares").
WHEREAS,
as a condition to the obligation of the Buyers to enter into the Securities
Purchase Agreement and to consummate the transactions contemplated thereby
(collectively, the "Transaction"), the
Buyers have required that the Stockholder agree, and in order to induce the
Buyers to enter into the Securities Purchase Agreement, the Stockholder has
agreed, to enter into this Agreement with respect to all the Common Stock now
owned and which may hereafter be acquired by the Stockholder (including, without
limitation, the Option Shares acquired upon exercise of the Options, and any
other securities, if any, which Stockholder is currently entitled to vote, or
after the date hereof becomes entitled to vote, at any meeting of the
stockholders of the Company (the
"Other
Securities")).
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereto hereby agree as follows:
ARTICLE
I
VOTING
AGREEMENT OF THE STOCKHOLDER
SECTION
1.01. Voting
Agreement. The
Stockholder hereby agrees that at any special or annual meeting of the
stockholders of the Company, however called, and in any action by written
consent of the Company’s stockholders, in each case for the purpose of
considering and approving the Company's issuance of all of the shares of Common
Stock issued and issuable upon conversion of the Preferred Shares and exercise
of the Warrants and as otherwise described in the Transaction Documents in
accordance with applicable law and the rules and regulations of the Principal
Market (the "Stockholder
Approval"), the
Stockholder shall vote the Common Stock owned by the Stockholder, any Option
Shares (to the extent any Options have been exercised) and any Other Securities
in favor of the Stockholder Approval. The obligations of the Stockholder under
this Section 1.01 shall terminate immediately following the occurrence of the
Stockholder Approval.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES OF THE STOCKHOLDER
The
Stockholder hereby represents and warrants to the Company and each of the Buyers
as follows:
SECTION
2.01. Authority
Relative to this Agreement. The
Stockholder has the capacity to execute and deliver this Agreement, to perform
his obligations hereunder and to consummate the transactions contemplated
hereby. This Agreement has been duly executed and delivered by the Stockholder
and constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, except (a) as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws now or
hereafter in effect relating to, or affecting generally, the enforcement of
creditors’ and other obligees’ rights and (b) where the remedy of specific
performance or other forms of equitable relief may be subject to certain
equitable defenses and principles and to the discretion of the court before
which the proceeding may be brought.
SECTION
2.02. No
Conflict. (a) The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder shall not, (i) conflict with or
violate any federal, state or local law, statute, ordinance, rule, regulation,
order, judgment or decree applicable to the Stockholder or by which the Common
Stock, Options, or any Other Securities currently owned by the Stockholder are
bound or affected or (ii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance on any of
the Common Stock, Options or any Other Securities currently owned by the
Stockholder pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Stockholder is a party or by which such Stockholder is
bound.
(b) The
execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement by the Stockholder shall not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental entity by the Stockholder.
SECTION
2.03. Title
to the Stock. As of
the date hereof, (a) the Stockholder is the owner of the number of shares of
Common Stock set forth below such Stockholder’s name on the signature page
hereto and (b) the Stockholder owns Options to purchase the Option Shares. As of
the date hereof, the Stockholder is entitled to vote, without restriction, on
all matters brought before holders of capital stock of the Company, the shares
of Common Stock owned by him and the Other Securities that the Stockholder has
been granted to vote. Such Common Stock and the Options are all the securities
of the Company owned, either of record or beneficially, by the Stockholder. Such
Common Stock is owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, agreements, limitations on the
Stockholder's voting rights, charges and other encumbrances of any nature
whatsoever. The Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Common Stock or
Other Securities owned by the Stockholder.
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ARTICLE
III
MISCELLANEOUS
SECTION
3.01. Further
Assurances. The
Stockholder shall execute and deliver such further documents and instruments and
take all further action as may be reasonably necessary in order to consummate
the transactions contemplated hereby.
SECTION
3.02. Specific
Performance. The
parties hereto agree that irreparable damage would occur in the event any
provision of this Agreement was not performed in accordance with the terms
hereof and that any Buyer (without being joined by any other Buyer) shall be
entitled to seek specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION
3.03. Entire
Agreement. This
Agreement constitutes the entire agreement among the Company and the Stockholder
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the Company and the Stockholder
with respect to the subject matter hereof.
SECTION
3.04. Amendment. This
Agreement may not be amended except by an instrument in writing signed by the
parties hereto.
SECTION
3.05. Severability. If any
term or other provision of this Agreement is invalid, illegal or incapable of
being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is not affected in
any manner materially adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
SECTION
3.06. Governing
Law. All
questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of
Delaware, without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Delaware or any other jurisdictions)
that would cause the application of the laws of any jurisdictions other than the
State of Delaware. The parties hereby agree that all actions or proceedings
arising directly or indirectly from or in connection with this Agreement shall
be litigated only in the Supreme Court of the State of New York or the United
States District Court for the Southern District of New York located in New York
County, New York. The parties consent to the jurisdiction and venue of the
foregoing courts and consent that any process or notice of motion or other
application to any of said courts or a judge thereof may be served inside or
outside the State of New York or the Southern District of New York by registered
mail, return receipt requested, directed to the party being served at its
address set forth on the signature ages to this Agreement (and service so made
shall be deemed complete three (3) days after the same has been posted as
aforesaid) or by personal service or in such other manner as may be permissible
under the rules of said courts. Each of the Company and the Stockholder
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now or hereafter have to the laying of the venue of any such suit,
action, or proceeding brought in such a court and any claim that suit, action,
or proceeding has been brought in an inconvenient forum. EACH
PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN
CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
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SECTION
3.07. Third-Party
Beneficiaries. The
Buyers shall be intended third party beneficiaries of this Agreement to the same
extent as if they were parties hereto, and shall be entitled to enforce the
provisions hereof.
SECTION
3.08. Termination. This
Agreement shall terminate immediately following the occurrence of the
Stockholder Approval or upon the mutual consent of the Stockholder and the
Buyers.
SECTION
3.09. Stockholder
Capacity; No Limitations on Actions of Stockholder as Director. No
person executing this Agreement who is or becomes during the term hereof a
director of the Company makes any agreement or understanding herein in his or
her capacity as such director. Each Stockholder signs solely in his or her
individual capacity as the record and beneficial owner of, or the trustee of a
trust whose beneficiaries are the beneficial owners of, such Stockholder’s
shares of Common Stock, Options and Other Securities. Accordingly, nothing in
this Agreement is intended or shall be construed to require such Stockholder, in
such Stockholder’s capacity as a director of the Company, to fail to act in
accordance with the Stockholder’s fiduciary duties in his or her capacity as a
director.
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IN
WITNESS WHEREOF, the Stockholder and the Company has duly executed this
Agreement as of the date first written above.
| THE COMPANY: | ||
| MILLENNIUM CELL INC. | ||
| By: | ||
|
| ||
| Address: | Xxx Xxxxxxxxxx Xxx Xxxx | |
|
Xxxxxxxxx,
Xxx Xxxxxx 00000 | ||
| STOCKHOLDER: | ||
| |
| |
| [ ] | ||
| Address: |
| |
|
| ||
|
| ||
|
As
of the date hereof, owner of: | ||
| |
|
|
| ______Shares of Common Stock | ||
|
Options
to Purchase ______Shares of Common Stock | ||
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