EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement is entered into this ___ day of September 2005
and effective as of September , 2005, between Axion Power International, Inc.,
a
Delaware corporation, having a place of business at 000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxx Xxxxxx (the “Company”) and Xxxxxx Xxxxx of <City>,
<State>, (the “Executive”).
WHEREAS,
the
Company is engaged in research and development relating to a novel technology
for a supercapacitor/battery hybrid that replaces the lead-based negative
electrode in a lead-acid battery with a highly permeable nanoporous carbon
electrode; and
WHEREAS,
the
Company is desirous of making appropriate arrangements for the management of
its
business affairs; and
WHEREAS,
the
Company is desirous of retaining the Executive to serve as its Chief of Research
and Development on the conditions set forth herein for the entire term of this
Agreement, and
WHEREAS,
in such
capacity, the Executive will have access to all of the business methods and
confidential information relating to the Company and its business activities
including, but not limited to, its proprietary techniques and technologies,
its
operational and financial matters, its business and financial and development
plans, its personnel training and development programs and its industry
relationships.
NOW
THEREFORE,
in
consideration of the promises and of the mutual covenants and agreements herein
contained, the parties hereto agree as follows:
1. Executive
Representations and Warranties.
The
Executive represents and warrants to the Company that he is free to accept
employment hereunder and that he has no prior or other obligations or
commitments of any kind to anyone that would in any way hinder or interfere
with
his acceptance of, or the full, uninhibited and faithful performance of this
Agreement, or the exercise of his best efforts as an executive officer of the
Company.
2. Employment
and Duties.
The
Company shall employ the Executive as it’s Chief of Research and Development, or
such other comparable executive capacity as the Board of Directors of the
Company shall specify from time to time. The company has recently budgeted
the
sum of $150,000 for the purpose of establishing a carbon electrode manufacturing
facility in upstate New York at a site that will be selected by the Executive
and the Company’s Chief Executive Officer. Pending the establishment of the
planned electrode facility, the Executive will work from the Company's office
in
the Toronto Metropolitan Area. When the electrode facility has been installed
and placed in service, the Executive will work from the newly established
electrode facility, provided that regular travel to the Company’s Toronto
facilities will be expected. The Executive’s initial responsibilities shall
include all of the duties and responsibilities of the Chief of Research and
Development as described in a more detailed job description that will be
negotiated between the Executive and the Board of Directors, as the same may
be
amended from time to time. In addition, the Executive shall, perform such other
mutually agreeable functions and duties as the Board of Directors may entrust
or
delegate to him from time to time.
3. Conduct
of Executive.
During
the entire Term of this Agreement, the Executive shall devote his full business
time, effort, skill and attention to the affairs of the Company and its
subsidiaries, will use his best efforts to promote the interests of the Company,
and will discharge his responsibilities in a diligent and faithful manner,
consistent with sound business practices. During the entire Term of this
Agreement, the Executive shall agree to serve as a member of the Company’s Board
of Directors if appointed to such position by the board of directors or elected
to such position by the shareholders of the Company. In furtherance of the
foregoing:
(a) The
Executive understands and agrees that he owes the Company a fiduciary duty,
without limiting any other obligations or requirements that are imposed on
the
Executive by this Employment Agreement or by law. As such, the Executive shall
occupy a position of and commit to the highest degree of trust, loyalty, honesty
and good faith in all of his dealings with and on behalf of the
Company.
(b) The
Executive represents that his employment by the Company will not conflict with
any obligations which he has to any other person, firm or entity. The Executive
specifically represents that he has not brought to the Company (during the
period before the signing of this Agreement) and he will not bring to the
Company any materials or documents of a former or present employer, or any
confidential information or property of any other person, firm or
entity.
(c) The
Executive shall not, without disclosure to and approval of the Board of
Directors of the Company, directly or indirectly, assist or have an active
interest in (whether as a principal, stockholder, lender, employee, officer,
director, partner, consultant or otherwise) in any person, firm, partnership,
association, corporation or business organization, entity or enterprise that
competes with or is engaged in a business which is substantially similar to
the
business of the Company except that ownership of not more than 1% of the
outstanding securities of any class of any publicly-held corporation shall
not
be deemed a violation of this sub-paragraph 3(c).
(d) The
Executive shall promptly disclose to the directors of the Company, in accordance
with the Company’s policies, full information concerning any interests, direct
or indirect, he holds (whether as a principal, stockholder, lender, Executive,
director, officer, partner, consultant or otherwise) in any business which,
as
reasonably known to the Executive purchases or provides services or products
to
the Company or any of its subsidiaries, provided that the Executive need not
disclose any such interest resulting from ownership of not more than 1% of
the
outstanding securities of any class of any publicly-held
corporation.
(e) The
Executive shall not disclose to any person or entity (other than to the
Company’s Board of Directors or to others as required, in his judgment, in the
due performance of his duties under this Agreement) any confidential or secret
information with respect to the business or affairs of the Company or any of
its
subsidiaries or affiliates.
For
a
period of one year after termination for cause, the Executive shall not engage
in any business or activity that is directly competitive with the business
of
the Company, including the activities described above. Notwithstanding the
generality of the foregoing, nothing in this Agreement shall be deemed to
preclude the Executive from participating in other business opportunities if
and
to the extent that (i) such business opportunities are not directly competitive
with the business of the Company, (ii) the Executive’s activities with respect
to such opportunities do not have a material adverse effect on the performance
of the Executive’s duties hereunder, and (iii) the Executive’s activities with
respect to such opportunity have been fully disclosed in writing to the
Company’s Board of Directors.
4. Conditions
of Employment.
(a) Term
of Employment.
Unless
terminated earlier in accordance with the provisions of this Agreement, the
Company will employ the Executive for a three-year period commencing on
September , 2005 and terminating on August 31, 2008 (the “Term”). Not less than
90 days before the termination of this Agreement, the Company and the Executive
shall open negotiations for a suitable contract renewal. In the absence of
a
renewal contract, this agreement shall be automatically renewed for an
additional two-year term.
(b) Place
of Employment.
The
Executive shall occupy offices at the Company’s planned electrode facility in
upstate New York and pending completion of the planned facility, the Executive
shall work from the Company’s executive office in the Toronto Metropolitan Area
which will be maintained for his use by the Company at the Company’s expense.
The Executive shall not be required to relocate from any other business location
maintained by the Company although the Executive expressly agrees that regular
travel shall be necessary as part of his duties. It may be decided that the
Executive will permanently locate at the Toronto office.
(c) Ownership
of Company Records and Reports.
The
Executive shall not, except in the performance of his duties hereunder, at
any
time or in any manner make or cause to be made any copies, pictures, duplicates,
facsimiles, or other reproductions or recordings or any abstracts or summaries
of any reports, studies, memoranda, correspondence, manuals, records, plans
or
other written or otherwise recorded materials of any kind whatever belonging
to
or in the possession of the Company, or of any subsidiary or affiliate of the
Company, including but not limited to materials describing or in any way
relating to the Company’s business activities including, but not limited to, its
proprietary techniques and technologies, its operational and financial matters,
its business and financial and development plans, its personnel training and
development programs and its industry relationships. The Executive shall have
no
right, title or interest in any such material, and the Executive agrees that,
except in the performance of his duties hereunder, he will not, without the
prior written consent of the Company remove any such material from any premises
of the Company, or any subsidiary or affiliate of the Company, and immediately
upon the termination of his employment for any reason whatsoever Executive
shall
return to the Company all such material in his possession.
(d) Company's
Trade Secrets.
Without
the prior written consent of the Company, the Executive shall not at any time
(whether during or after his employment with the Company) use for his own
benefit or purposes or for the benefit or purposes of any other person, firm,
partnership, association, corporation or business organization, entity or
enterprise, or disclose in any manner to any person, firm, partnership
association, corporation or business organization, entity or enterprise, except
in the performance of his duties hereunder, any trade secrets, or any
information data, know-how or knowledge constituting trade secrets belonging
to,
or relating to the affairs of the Company, or any subsidiary, former subsidiary,
or affiliate of the Company.
(e) Inventions,
Copyrights. Trademarks.
The
Executive shall promptly disclose to the Company (and to no one else) all
improvements, discoveries, ideas and inventions that may be of significance
to
the Company, or any subsidiary or affiliate of the Company, made or conceived
alone or in conjunction with others (whether or not patentable, whether or
not
made or conceived at the request of or upon the suggestion of the Company or
any
subsidiary or affiliate of the Company during or out of his usual hours of
work
or in or about the premises of the Company or elsewhere) while in the employ
of
the Company or of any subsidiary or affiliate of the Company, or made or
conceived within one year after the termination of his employment by the Company
or of any subsidiary or affiliate of the Company if resulting from, suggested
by
or relating to such employment. All such improvements, discoveries, ideas and
inventions shall be the sole and exclusive property of the Company and are
hereby assigned to the Company. At the request of the Company and at its cost,
the Executive shall assist the Company, or any person or persons from time
to
time designated by it, to obtain the copyright, trademark and/or grant of
patents in the United States and/or in such other country or countries as may
be
designated by the Company, covering such improvements, discoveries, ideas and
inventions and shall in connection therewith and in connection with the defense
of any patents execute such applications, statements or other documents, furnish
such information and data and take all such other action (including, but not
limited to, the giving of testimony) as the Company may from time to time
reasonably request.
5. Compensation.
The
Company shall compensate the Executive for all services to be rendered by him
during the Term as follows:
(a) The
Executive shall receive a salary of $10,000 per month for services rendered
during the period commencing on September , 2005 and terminating in March,
2006.
Thereafter, the Executive’s Salary shall be reviewed on a bi-annual basis and
the amount of such Salary shall be subject to renegotiation on the basis of
the
performance of the Executive and the performance of the Company.
(b) The
Company’s capital budget for the processing and fabrication equipment required
for the Company’s proposed carbon electrode manufacturing facility has been
fixed at $100,000. If the Executive is able to purchase suitable used equipment
on more advantageous terms, the Executive will be entitled to receive a one-time
cash bonus equal to fifteen percent (15%) of the cost savings.
(c) When
the
Company’s proposed carbon electrode manufacturing facility has been installed,
completed shake-down tested and is ready to commence production, the Executive
will be entitled to receive a one-time cash bonus of $10,000.
(d) The
Executive shall participate in any executive compensation plans adopted by
the
shareholders of the Company; provided, however, that the discretionary authority
to determine the level of the Executive’s participation therein and the terms
and conditions of such participation shall remain vested in the Compensation
Committee of the Board of Directors and the Compensation Committee shall have
the authority to adjust such participation upward or downward from time to
time
in its sole discretion.
(e) The
Executive shall participate, without cost to the Executive, in the Company's
standard employee benefit programs, including but not limited to medical and
hospitalization insurance and group life insurance, as in effect from time
to
time.
(f) The
Executive shall be entitled to an automobile allowance of $500 per month, plus
reimbursement at the maximum allowable rate under applicable income tax rules
for all reasonable business use of the automobile.
(g) During
the Term of this Agreement, the Company will reimburse the Executive for all
reasonable business expenses incurred by him on behalf of the Company in the
performance of his duties hereunder upon presentation of vouchers, receipts
or
other evidence of such expenses in accordance with the policies of the Company,
and provided that the Executive shall incur no costs or expenses that exceed
five thousand dollars without prior authorization of the Company.
(h) Notwithstanding
any other provision of this Agreement, it is agreed that the Executive shall
be
entitled to receive such incentive bonuses, stock options and other benefits
as
the Compensation Committee of the Board of Directors may grant from time to
time.
(i) Notwithstanding
the general provisions of the Company’s Policy Manual relating to vacations, the
Executive shall be entitled to a total of four (4) weeks of paid vacation per
year. Except for the 4-week time period herein specified, all other provisions
of the Policy Manual relating to vacation scheduling will be applicable to
vacation time allocated to the Executive hereunder.
6. Restricted
Stock Grant.
Simultaneously with the execution of this Agreement, the Executive shall be
entitled to receive and the Company shall instruct its transfer agent to issue
to the Executive 6,000 shares of the Company’s authorized and previously
unissued common stock (the “Grant Shares”) which shall, upon issuance, be
subject to all of the following terms and conditions:
(a) The
Grant
Shares shall be issued to the Executive under the Company’s Incentive Stock Plan
for the sole purpose of providing the Executive with a tangible incentive to
put
forth maximum efforts for the success of the Company and its business in the
future. In the event that the Executive’s
employment with the Company is terminated by the Executive without cause or
by
the Company with cause prior
to the
first anniversary of the date of this Agreement, then all Grant Shares that
have
not previously vested pursuant to sub-paragraphs (b) and (c) hereof shall be
immediately forfeit without further action by the Company or the
Executive.
(b) Absolute
and unrestricted ownership of the Grant Shares shall vest in the Executive
over
the one-year period commencing on the effective date of this Agreement, at
the
rate of 500 shares per month. No consideration shall be given to partial
periods.
(c) Notwithstanding
the provisions of subparagraphs (a) and (b) absolute and unrestricted ownership
of all Grant Shares shall immediately vest in the Executive in the event that
the Executive’s
employment with the Company is terminated by the Company without cause.
Furthermore, all unvested Grant Shares
shall
vest in the Executive immediately prior to the consummation of (i) any merger,
consolidation or similar business combination transaction where the Company
is
not the surviving entity, (ii) any sale of all or substantially all of the
Company’s assets where the proceeds are intended for distribution to the
stockholders, or (iii) any other transaction or series of transactions whereby
any person, entity or group acting in concert acquires direct or indirect
ownership of more than 20% of the Company’s outstanding voting
securities.
7.
Grant of
Stock Purchase Option. The
Company acknowledges that the Executive has agreed to devote substantially
all
of his business time and effort to the Company during the entire Term of this
Agreement. In recognition of the opportunity costs associated with such actions,
the Executive is hereby granted an option to purchase 90,000 shares of the
Company’s common stock at an exercise price of $4.00 (U.S.) per share.
The
foregoing options shall vest at the rate of 2,500 shares per month commencing
on
October , 2005. If the Executive's employment is terminated by the Company
without
cause
(as
defined in Section 8) or terminated by the Executive for good
reason
(as
defined in Section 8), all unvested options shall immediately vest and become
exercisable. In all other cases, all unvested options shall immediately
terminate.
Notwithstanding
the generality of the foregoing, rights represented by vested options shall
not
be affected by the termination of the Executive’s employment because of the
disability or death of the Executive. From
and
after the vesting dates, the vested options may be exercised at any time or
from
time to time, in whole or in part, for a period of five years. The option
agreement attached hereto as “Exhibit A” shall be executed concurrently with
this agreement.
8. Termination
of Employment.
(a) This
Agreement and the compensation payable to Executive hereunder shall terminate
and cease to accrue forthwith upon Executive's death.
(b) If
the
Executive's employment is terminated (i) other than for
cause
(as
defined below) by the Company or (ii) by the Executive for good
reason
(as
defined below), the Company shall pay to Executive an aggregate severance amount
equal to 50% of the Executive's annual base salary in effect as of the date
of
such termination (i.e.,
six
months' base salary and such amount being referred to as the "Severance
Amount").
The
Severance Amount may be paid in a single lump sum amount, provided that payment
of the Severance Amount shall be contingent upon the Executive signing a
suitable release and waiver agreement.
(c) For
the
purposes of this agreement, "cause"
for
termination by the Company shall exist upon (i) the conviction of the
Executive
of, or
the entry of a pleading of guilty or nolo contendere by the Executive
to, any
crime involving moral turpitude that may reasonably adversely reflect on the
Company or any felony; (ii) willful misconduct in connection with the
Executive's
duties
or willful failure to use reasonable effort to perform substantially his
responsibilities in the best interest of the Company, provided that
"willful
misconduct"
and
"willful
failure to perform"
shall
not include actions or inactions on the part of the Executive
that
were taken or not taken in good faith by the Executive;
or
(iii) fraud, material dishonesty, or gross misconduct in connection with
the Company perpetuated by the Executive.
(d) For
the
purposes of this agreement, "good
reason"
for
termination by the Executive shall exist upon (i) a material change in the
reporting responsibilities of the Executive
to
someone other than the Chief Executive Officer or the Board; (ii) a
substantial diminution of the Executive's
responsibilities; (iii) any reduction in the Executive's
level
of compensation without the approval of the Executive;
or
(iv) a transfer of the Executive's
work
location for purposes of performing his duties hereunder to a location other
than upstate New York or the Toronto metropolitan area.
(e) Upon
execution of this agreement, the Company shall deposit the sum of $60,000 in
a
segregated escrow account at _____________ bank for the purpose of securing
the
Company’s severance payment obligations hereunder. On each three-month
anniversary of the date of this agreement, provided there has been no default
by
the Company, $15,000 of the escrow account principal shall be released to the
Company and the Executive’s right to severance compensation shall thereafter be
an unsecured claim against the Company with respect to the amounts so
released.
(f) At
the
end of the initial term of this agreement, the Executive’s employment may be
terminated by either party for any reason, or for no reason, upon written notice
given not less than 90 days prior to of the termination date.
9. Specific
Performance.
If any
portion of this Agreement is found by a court of competent jurisdiction to
be
too broad to permit enforcement of such restriction to its full extent, then
such restriction shall be enforced to the maximum extent permitted by law,
and
the Executive hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
All
provisions of this Agreement are severable, and the unenforceability or
invalidity of any single provision hereof shall not affect any remaining
provision. The Executive acknowledges and agrees that the Company's remedy
at
law for any breach of any of his obligations hereunder would be inadequate,
and
agrees and consents that temporary and permanent injunctive relief may be
granted in any proceeding that may be brought to enforce any provision of this
Agreement without the necessity of proof of actual damage and without any bond
or other security being required. Such remedies shall not be exclusive and
shall
be in addition to any other remedy which the Company may have.
10. Miscellaneous.
(a) The
failure of a party to insist on any occasion upon strict adherence to any Term
of this Agreement shall not be considered to be a waiver or deprive that party
of the right thereafter to insist upon strict adherence to that Term or any
other Term of this Agreement. Any waiver must be in writing.
(b) All
notices and other communications under this Agreement shall be in writing and
shall be delivered personally or mailed by registered mail, return receipt
requested, and shall be deemed given when so delivered or mailed, to a party
at
such address as a party may, from time to time, designate in writing to the
other party.
(c) Notwithstanding
the termination of the Executive’s employment hereunder, the provisions of
Paragraphs 6, 7, 8 and 9 shall survive such termination.
(d) This
Agreement shall be assigned to and inure to the benefit of, and be binding
upon,
any successor to substantially all of the assets and business of the Company
as
a going concern, whether by merger, consolidation, liquidation or sale of
substantially all of the assets of the Company or otherwise.
(e) This
Agreement constitutes the entire Agreement between the parties regarding the
above matters, and each party acknowledges that there are no other written
or
verbal Agreements or understandings relating to such subject matter between
the
Executive and the Company or between the Executive and any other individuals
or
entities other than those set forth herein. No amendment to this Agreement
shall
be effective unless it is in writing and signed by both the parties
hereto.
(f) Paragraph
6 of this Agreement shall be construed in accordance with the General
Corporation Law of Delaware. All other provision of this Agreement shall be
construed according to the laws of the Province of Ontario Canada pertaining
to
Agreements formed and to be performed wholly within the Province of Ontario.
In
the event action is brought to enforce any provisions of this Agreement, the
prevailing party shall be entitled to reasonable legal fees as fixed by the
court. The Executive represents and warrants that he has reviewed this Agreement
in detail with his legal and other advisors, as he considers appropriate, and
that he fully understands the consequences to him of its provisions. The
Executive is relying on his own judgment and the judgment of his advisors with
respect to this Agreement.
(g) In
the
event a dispute arises out of, in connection with, or with respect to this
Agreement, or any breach thereof, such dispute shall, on the written request
of
one party delivered to the other party, be submitted to and settled by binding
arbitration before a single arbitrator conducted in Xxxxxxx, Xxxxxxx, Xxxxxx
in
accordance with Arbitrations Act (Ontario). The award of such arbitrator shall
be final other than appeals under sections 45(2) and 45(3) of the Arbitration
Act of Ontario and may be entered by any party hereto in any court of competent
jurisdiction. The party against whom the arbitrator’s award is rendered shall
pay all costs and expenses of such arbitration, unless the arbitrator shall
specifically allocate costs in a different manner because the award is not
entirely in favor of either party
(h) This
Agreement may be executed in any number of counterparts, which will each be
deemed to be an original for all purposes hereof.
IN
WITNESS WHEREOF,
the
parties have signed this agreement intending to be bound thereby.
Axion
Power International, Inc. Executive
By:
Xxxx
X.
Xxxxxxxx, Chairman Xxxxxx
Xxxxx
Page
NONQUALIFIED
STOCK OPTION AGREEMENT
(The
Options Represented Hereby Are Not Presently Exercisable)
THIS
OPTION AGREEMENT
(“Option
Agreement”) is dated and delivered effective as of September , 2005, in
Xxxxxxxxxx, Xxxxxxx, Xxxxxx between AXION
POWER INTERNATIONAL, INC.,
a
Delaware corporation (hereinafter called the “Company”) and Xxxxxx
Xxxxx
(hereinafter called “Optionee”):
R
E C I T A L S
The
Company and the Optionee have entered into an employment agreement that requires
the Company to grant the Optionee an option to purchase 90,000 shares of the
Company’s common stock at a price of $4.00 per share as partial consideration
for the services to be rendered under the agreement.
The
Board
of Directors (the “Board”) has determined that it would be in the best interests
of the Company and its stockholders to grant the option provided for herein
(the
“Option”) as an inducement to serve as an employee of the Company and to provide
Optionee with a proprietary interest in the future of the Company;
NOW
THEREFORE,
in
consideration of the mutual covenants hereinafter set forth, the parties hereto
agree as follows:
1. Grant
of the Option.
The
Company hereby grants to Optionee the right and option to purchase, on the
terms
and conditions hereinafter set forth, all or any part of an aggregate of 90,000
shares (the “Stock”) of the presently authorized but unissued common stock, par
value $.0001 per share, of the Company (the “Common Stock”). The purchase price
of the Stock subject to this Option shall be $4.00 per share.
2. Vesting
of the Option.
As long
as the Optionee remains an employee of the Company, the option granted hereby
shall vest at the rate of 2,500 shares per month commencing on September 30,
2005. If the Optionee’s employment is terminated by the Company
without
cause
or
terminated by the Optionee for good
reason,
all
unvested options shall immediately vest and become exercisable. In all other
cases, all unvested options shall immediately terminate.
From
and after the vesting dates, the vested options may be exercised at any time
or
from time to time, in whole or in part, for a period of five years. Notwithstanding
the generality of the foregoing, rights represented by vested options shall
not
be affected by the termination of the Optionee’s employment because of the
disability or death of the Optionee
3. Exercise
of Option.
(a) Vested
Options may only be exercised by the Optionee who shall have the right to
exercise such Option in whole or in part, at any time or from time to time
during the period commencing on a vesting date and terminating on the sixth
anniversary of such vesting date. The Option is not transferable or assignable
by the Optionee other than by will, as a result of the laws of descent and
distribution or pursuant to a Qualified Domestic Relations Order. If the Option
is transferred by will, as a result of the laws of descent and distribution
or
pursuant to a Qualified Domestic Relations Order, the transferee shall have
all
of the rights, powers and privileges that the Optionee would have had in the
absence of such a transfer.
(b) This
Option may be exercised by written notice of intent to exercise the Option
delivered to the Company at its principal office no fewer than five days in
advance of the effective date of the proposed exercise. Such notice shall be
accompanied by this Agreement, shall specify the number of shares of Common
Stock with respect to which the Option is being exercised and shall specify
the
proposed effective date of such exercise. Such notice shall also be accompanied
by payment in full to the Company at its principal office of the option price
for the number of shares of the Common Stock with respect to which the Option
is
then being exercised. The payment of the option price shall be made in cash
or
by certified check, bank draft, or postal or express money order payable to
the
order of the Company or, with the consent of the Board, in whole or in part
in
Common Stock which is owned by the Optionee and valued at its Fair Market Value
on the date of exercise. Any payment in shares of Common Stock shall be effected
by delivery of such shares to the Secretary of the Company, duly endorsed in
blank or accompanied by stock powers duly executed in blank, together with
any
other documents or evidence as the Secretary of the Company shall require from
time to time.
(c) Upon
the
Company’s determination that the Option has been validly exercised as to any of
the Stock, the Secretary of the Company shall issue a certificate or
certificates in the Optionee’s name for the number of shares set forth in his
written notice. However, the Company shall not be liable to the Optionee for
damages relating to any delays in issuing the certificate(s) to him, any loss
of
the certificate(s), or any mistakes or errors in the issuance of the
certificate(s) or in the certificate(s) themselves.
3. Term
of Employment.
This
Option shall not grant to Optionee any right to continue serving as an employee
of the Company.
4. Notices;
Deliveries.
Any
notice or delivery required to be given under the terms of this Option Agreement
shall be addressed to the Company in care of its Secretary at its principal
office, 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxx Xxxxxx X0X 0X0, and any notice
or
delivery to be given to Optionee shall be addressed to him at such address
as
the Optionee may hereafter designate in writing. Any such notice or delivery
shall be effective as of the date of receipt.
5. Disputes.
As a
condition of the granting of the Option hereby, the Optionee and his heirs
and
successors agree that any dispute or disagreement which may arise hereunder
shall be determined by the Board in its sole discretion and judgment, and that
any such determination and any interpretation by the Board of the terms of
this
Option shall be final and shall be binding and conclusive, for all purposes,
upon the Company, Optionee, his heirs and personal representatives.
6. Legend
on Certificates.
The
certificate(s) representing the shares of Stock purchased by exercise of this
Option will be stamped or otherwise imprinted with a legend in such form as
the
Company or its counsel may require with respect to any applicable restrictions
on the sale or transfer of such shares and the stock transfer records of the
Company will reflect stop-transfer
instructions with respect to such shares.
7. Miscellaneous.
(a) All
decisions of the Board upon any questions arising under the Plan or under this
Option Agreement shall be conclusive.
(b) Nothing
herein contained shall affect Optionee’s right to participate in and receive
benefits from and in accordance with the then current provisions of any pension,
insurance or other employee welfare plan or program of the Company.
(c) Optionee
agrees to make appropriate arrangements with the Company for satisfaction of
any
applicable federal, state or local income tax, withholding requirements or
like
requirements, including the payment to the Company at the time of exercise
of
the Option of all such taxes and requirements.
(d) Whenever
the term “Optionee” is used herein under circumstances applicable to any other
person or persons to whom this Option, in accordance with the provisions hereof,
may be transferred, the word “Optionee” shall be deemed to include such person
or persons.
(e) Notwithstanding
any of the other provisions hereof, Optionee agrees that he will not exercise
this Option and that the Company will not be obligated to issue any of the
Stock
pursuant to this Option Agreement, if the exercise of the Option or the issuance
of such shares of Common Stock would constitute a violation by the Optionee
or
by the Company of any provision of any law or regulation of any governmental
authority or na-tional
securities exchange. Upon the acquisition of any Stock pursuant to the exercise
of the Option herein granted, Optionee will enter into such written
representations, warranties and agreements as the Company may reasonably request
in order to comply with applicable securities laws or with this Agreement.
(f) This
Agreement shall be binding upon and inure to the benefit of any successor or
successors of the Company. The interpretation, performance and enforcement
of
this Option Agreement shall be governed by the laws of the State of Delaware.
IN
WITNESS WHEREOF, the Company has, as of the date and place first above written,
caused this Agreement to be executed on its behalf and the Optionee has hereunto
set his hand as of the date and place first above written, which date is the
date of grant of this Option.
Axion
Power International, Inc. Optionee
By:
Xxxx
X.
Xxxxxxxx, Chairman Xxxxxx
Xxxxx
