MILLENNIUM CELL INC.
CHANGE-IN-CONTROL AGREEMENT
THIS CHANGE-IN-CONTROL AGREEMENT (this "Agreement"), made and entered
into as of January 1, 2003, by and between Millennium Cell Inc., a Delaware
corporation (the "Company"), and Xxxx X. Xxxxxx (the "Executive").
WHEREAS, the Company considers it essential to its best interests to
xxxxxx the continued employment of key management personnel and recognizes the
distraction and disruption that the possibility of a Change in Control (as
defined in Section 1(e) below) may raise to the detriment of the Company and its
stockholders; and
WHEREAS, the Company has determined to take appropriate steps to
reinforce and encourage the continued attention and dedication of key management
personnel to their assigned duties in the face of a possible Change in Control.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Company and the Executive hereby agree as follows:
1. DEFINITIONS.
(a) "Affiliate" shall mean any business entity controlling,
controlled by, or under common control with the Company.
1
(b) "Base Salary" shall mean the annual salary of the Executive at
the time of termination of his employment.
(c) "Beneficiary" shall mean (i) the person or persons named by the
Executive, by written notice to the Company, to receive any compensation or
benefit payable under this Agreement, or (ii) in the event of his death, if no
such person is named and survives the Executive, his estate.
(d) "Board" shall mean the Board of Directors of the Company.
(e) "Cause" shall mean any one of the following items (all as
reasonably determined by the Company)
(i) a final judgment of conviction of the Executive for a felony
entered by a trial court regardless of whether the Executive appeals the
judgment; provided, however, that such felony is the type of felony that causes
or threatens to cause material harm to the Company;
(ii) the issuance of a final award, judgment, or order by an
administrative agency, arbitrator, governmental body, governmentally-owned
corporation, mediator, self-regulatory organization, or trial court that the
Executive is prohibited from performing any material duty as an employee of the
Company or an Affiliate for more than three (3) months, regardless of whether
the Executive appeals the award, judgment, or order;
(iii) an intentional violation of any federal, state, or local
law or regulation that adversely affects the Company or an Affiliate; provided,
however, that this provision does not apply to a violation subject only to a
monetary fine or penalty of Three Thousand ($3,000) Dollars or less;
2
(iv) a material breach by the Executive of one or more provisions
of this Agreement;
(v) the failure of the Executive, other than by reason of his
disability or legal incompetency, to perform competently on a regular basis any
material duty as an employee of the Company or an Affiliate;
(vi) the failure of the Executive, other than by reason of his
disability or legal incompetency, to carry out the business directions of the
Company or any officer of the Company who customarily gives business directions
to the Executive, and the failure continues for more than thirty (30) days after
the Company or officer gives written notice to the Executive specifying the
nature of the failure and requesting the Executive to cure it;
(vii) (i) any act or failure to act that the Executive intends to
cause or to threaten to cause a material loss to the business of the Company or
an Affiliate; (ii) any act or failure to act that constitutes gross negligence
and causes or threatens to cause a material loss to the business of the Company
or an Affiliate; or (iii) multiple acts or failures to act that constitute
negligence and cause or threaten to cause a material loss to the business of the
Company or an Affiliate;
(viii) appropriation of the business opportunities of the Company
or an Affiliate for the personal benefit of the Executive or any person or
entity in which Executive has an interest;
(ix) intentional interference with the business of the Company or
an Affiliate that is a violation of any law or provision of this Agreement, and
that causes or threatens to cause a material loss to the business of the Company
or an Affiliate;
(x) falsification of any information given to any director or
officer of the Company or an Affiliate; or
3
(xi) any act by Executive directed against the Company or an
Affiliate of bribery, embezzlement, fraud, misappropriation of assets, or the
receipt of kickbacks..
(F) "Change in Control" shall mean the occurrence of any of the
following:
(i) The Board votes to approve:
any consolidation or merger of the Company pursuant to which
less than 50 percent of the outstanding voting securities of the surviving or
resulting company is owned by the individuals or entities which were
stockholders of the Company prior to the consolidation or merger;
any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or substantially all
(as determined by a value of at least 50% of the fair market value of all of the
assets of the Company), of the assets of the Company other than any sale, lease,
exchange or other transfer to any company when the Company owns, directly or
indirectly, 100 percent of the outstanding voting securities of such company
after any such transfer;
(ii) any person (as such term is used in Section 13(d) of the
Securities Exchange Act of 1934, as from time to time amended (the "Exchange
Act")), other than one or more current stockholders, any acquisition entity that
is majority-owned by any current stockholder(s), the Company, a subsidiary or
one or more employee benefit plans established by the Company for the benefit of
employees of the Company or any subsidiary, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act), whether directly,
4
indirectly, beneficially or of record, of 35 percent or more of the outstanding
common stock of the Company;
(iii) commencement by any entity, person, or group (including any
affiliate thereof, other than the Company) of a tender offer or exchange offer
where the offeror acquires more than 50 percent of the outstanding voting
securities of the Company; or
(iv) a change in composition of the Board occurring within a
rolling two-year period, as a result of which fewer than a majority of the
directors are Incumbent Directors ("Incumbent Directors" shall mean directors
who either (x) are members of the Board as of the date of this Agreement or (y)
are elected, or nominated for election, to the Board with the affirmative votes
of at least a majority of the Incumbent Directors at the time of such election
or nomination, but shall not include an individual not otherwise an Incumbent
Director whose election or nomination is in connection with an actual or
threatened proxy contest, including but not limited to a consent solicitation,
relating to the election of directors to the Board).
(G) "Disability" shall mean the illness or other mental or physical
disability of the Executive, as determined by a physician acceptable to the
Company and the Executive, resulting in his inability to perform substantially
all the duties of his position for a period of six or more consecutive months or
an aggregate of six months in any 12-month period.
(H) "Good Reason" shall mean, without the Executive's prior written
consent or that is not cured by the Company within thirty (30) days after its
receipt of written notice of the Executive's objection to the occurrence:
5
(i) assignment to the Executive to any position, duties or
responsibilities that are significantly diminished when compared with the
position, duties or responsibilities of Executive on the date of this Agreement;
(ii) reduction in his then current Base Salary, except pursuant
to an across-the-board reduction similarly affecting all senior executives of
the Company;
(iii) termination of the Executive's employment, for any reason
other than Cause, death, Disability or voluntary termination, within two years
following a Change in Control; ; or
(iv) the Company's failure to pay the Executive any material
amounts otherwise vested and due him hereunder or under any plan, program or
policy of the Company.
2. TERM OF AGREEMENT.
This Agreement shall be effective immediately upon its execution by
the Company and the Executive (the "Effective Date") and shall remain in effect
until the earliest to occur of (a) termination of the Executive's employment
with the Company prior to a Change in Control; (b) termination of the
Executive's employment with the Company following a Change in Control (i) by
reason of death or Disability, (ii) by the Company for Cause or (iii) by the
Executive other than for Good Reason; (c) two years after the date of a Change
in Control; and (d) two years after the Effective Date.
6
3. ENTITLEMENT UPON TERMINATION BY THE COMPANY WITHOUT CAUSE OR BY THE
EXECUTIVE FOR GOOD REASON FOLLOWING A CHANGE IN CONTROL.
In the event of termination of the Executive's employment within two
years following a Change in Control (a) by the Company without Cause or (b) by
the Executive for Good Reason, he shall be entitled to the following:
(A) GENERAL ENTITLEMENT:
(i) his Base Salary through the date of termination;
(ii) payment in lieu of any unused vacation, in accordance with
the Company's vacation policy and applicable laws;
(iii) any annual or discretionary bonus earned but not yet paid
to him for any calendar year prior to the year in which his termination occurs;
and
(iv) reimbursement of any business expenses incurred by the
Executive through the date of termination but not yet paid to him.
(B) CHANGE-IN-CONTROL ENTITLEMENT:
(i) 2 times the sum of (A) his Base Salary, at the rate in effect
immediately before such termination, and (B) the average of his annual bonuses
paid in the three calendar years prior to the year in which termination occurs,
such amount to be paid promptly to the Executive in a cash lump sum; and
7
(ii) continuing coverage under the life, disability, accident and
health insurance programs covering senior executives of the Company generally,
as from time to time in effect, for the two-year period from such termination.
(C) DETERMINATION OF AMOUNT OF PAYMENT. The Company, at its sole
expense, shall cause its independent certified public accountants (the
"Accountants") to promptly review all payments, distributions, and benefits that
have been made to or provided to, and are to be made to or provided to,
Executive under this Agreement and any other agreement and plan, to determine
the applicability of Code Section 4999. If the Accountants determine that any
such payments, distributions, or benefits are subject to excise tax under Code
Section 4999, such payments, distributions, or benefits (the "Original
Payment(s)") shall be increased by an amount (the "Gross-up Amount") such that,
after the Company withholds all federal, state, and local taxes due, including
without limitation all excise, employment, and income taxes imposed on the
Gross-up Amount, Executive shall retain a net amount equal to the Original
Payment(s) less employment and income taxes, if any, imposed on the Original
Payment(s). To facilitate the calculation of the applicable excise tax,
Executive shall provide the Accountants with copies of Executive's Forms W-2 for
the tax years the Accountants determine appropriate for their use in determining
the application of Code Section 4999 and calculating any amounts payable under
this Section 3(c). The Accountants shall perform the calculations in conformance
with the provisions of this Section 3(c), and shall provide Executive with a
copy of their calculations. The Company shall be solely responsible for, and
shall pay, all excise tax on the Original Payment(s) and Gross-up Amount, and
all federal, state and local employment and income taxes,
8
interest, additions to tax, and penalties imposed on the Gross-up Amount. If no
determination by the Accountants is made prior to the time Executive must file a
tax return reporting any portion of the Original Payment(s), Executive shall
receive a Gross-up Amount calculated on the basis of the Original Payment(s)
Executive reports on his tax return. In this case, the Company shall pay the
Gross-up Amount within thirty (30) days prior to the filing of the tax return.
If any tax authority finally determines that a greater excise tax is to be
imposed on the Original Payment(s) than is determined by the Accountants or
reported on Executive's tax returns, Executive shall receive the full Gross-up
Amount calculated on the additional amount of excise tax, interest, additions to
tax, and penalties determined to be payable by such tax authority. The Company
shall pay the additional Gross-up Amount within thirty (30) days of this
determination. If any tax authority finally determines that the excise tax is
less than the amount taken into account hereunder in calculating the Gross-up
Amount, Executive shall repay to the Company, within thirty (30) days of this
determination, the portion of the Gross-up Amount attributable to the reduction
in excise tax, plus that portion of the Gross-up Amount attributable to the
excise tax and federal, state, and local employment and income taxes imposed on
the Gross-up Amount being repaid. If any tax authority finally determines that
the excise tax is more than the amount taken into account hereunder and
calculating the Gross up amount, the Company (or its successors in interest)
shall pay Executive an additional Gross up Amount to take into account the
additional excise tax.
9
4. NO MITIGATION
The Company agrees that if the Executive's employment with the
Company terminates, he shall not be obligated to seek other employment or to
attempt to reduce any amount payable to him under this Agreement. Further, no
amount of any payment hereunder shall be reduced by any compensation earned by
the Executive as the result of employment by a subsequent employer or otherwise.
5. NOTICES.
Any notice or other communication required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered by hand, electronic transmission (with a copy following by hand or by
overnight courier), by registered or certified mail, postage prepaid, return
receipt requested or by overnight courier addressed to the other party. All
notices shall be addressed as follows, or to such other address or addresses as
may be substituted by notice in writing:
To the Company:
Millennium Cell Inc.
Xxx Xxxxxxxxxx Xxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Fax: (000) 000-0000
To the Executive:
Xxxx Xxxxxx
At his residence and facsimile address most recently filed with
the Company
10
6. GENERAL PROVISIONS.
(A) AMENDMENTS. No provision of this Agreement may be amended,
modified or waived unless such amendment, modification or waiver shall be agreed
to in writing and signed by the Executive and by a duly authorized officer of
the Company.
(B) SEVERABILITY. If any provision of this Agreement shall be
determined to be invalid or unenforceable by a court of competent jurisdiction,
the remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect to the fullest extent permitted by law.
(C) PARTIAL INVALIDITY. If any provision of this Agreement is held by
a court of competent jurisdiction to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force without being
impaired or invalidated in any way.
(D) GOVERNING LAW/VENUE. This Agreement shall be construed,
interpreted and governed in accordance with the laws of the State of New Jersey,
without reference to rules relating to conflicts of law. The state and federal
courts in the State of New Jersey shall have exclusive jurisdiction over any
claims arising under this Agreement.
(E) ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement between the parties relating to the subject matter hereof.
(F) SURVIVAL. Notwithstanding the termination of the term of this
Agreement, the duties and obligations of the Company, if any, following the
termination of the Executive's employment following a Change in Control shall
survive indefinitely.
11
(G) WITHHOLDING. The Company may deduct and withhold from any
payments hereunder the amount that the Company, in its reasonable judgment, is
required to deduct and withhold for any income, employment or excise taxes,
whether federal, state or local.
(H) NO OTHER COMPENSATION: EMPLOYEE AT WILL. This Agreement shall not
be construed as creating an express or implied contract of employment and,
except as otherwise agreed in writing between the Executive and the Company, the
Executive is and shall remain an "employee at will" and shall not have any right
to be retained in the employ of the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
MILLENNIUM CELL INC.
By: /s/ Xxxxxxx X. Xxxx
-----------------------------
Name: Xxxxxxx X. Xxxx
Title: CEO and President
EXECUTIVE
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
12
SCHEDULE TO EXHIBIT 10.29
OTHER CHANGE-IN-CONTROL AGREEMENTS
I.
------------------------------------ ----------------------------------
Name of Executive Xxxxx Xxxxxxxx
------------------------------------ ----------------------------------
II.
------------------------------------ ----------------------------------
Name of Executive Xxx Xxxxxxx
------------------------------------ ----------------------------------
III.
------------------------------------ ----------------------------------
Name of Executive Xxxxxxxxx XxXxxx
------------------------------------ ----------------------------------
