March 13, 2007
Exhibit
10.2
March
13,
2007
CONFIDENTIAL
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Fair
Haven, NJ 07724
| Re: |
Certain
Rights and Obligations Upon Termination of
Employment
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Dear
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Reference
is made to the Change-In-Control Agreement (the “Change-In-Control
Agreement”)
dated
as of September 25, 2006 between you and Millennium Cell Inc. (the “Company”).
Capitalized terms used and not defined in this letter have the meanings given
to
such terms in the Change-In-Control Agreement.
1. If,
at
any time prior to 2 years from the date of your relocation to Eatontown, NJ,
your employment with the Company is terminated by the Company without Cause
or
terminated by you for Good Reason, you shall be entitled to the
following:
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(a)
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General
Entitlement.
a
lump sum payment (i) equal to any unpaid portion of your Base Salary
through the date of termination, plus
(ii) in lieu of any unused vacation as of the date of termination,
in
accordance with the Company’s vacation policy and applicable laws,
plus
(iii) of any annual or discretionary bonus earned but not yet paid
to you
for any calendar year prior to the year in which the termination
occurs,
plus
(iv) subject to the terms and limitations of the particular compensation
plan, of any deferred compensation under any incentive compensation
plan
of the Company or any deferred compensation agreement between you
and the
Company then in effect, plus
(v) subject to the terms and conditions of the particular plan or
arrangement, of any other compensation or benefits, including without
limitation, long-term incentive compensation, benefits under equity
grants
and awards, and employee benefits under plans or arrangements that
have
vested through the date of termination or to which you are otherwise
entitled to, in each case in accordance with the applicable terms
of each
such grant, award, plan or arrangement, plus
(vi) for reimbursement of any business expenses incurred by you through
the date of termination but not yet paid to you (in accordance with
the
Company’s existing policies).
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(b)
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Additional
Entitlement.
in addition to the compensation and benefits described in subparagraph
(a)
above: (i) payment of an amount equal to 1.5 times your Base Salary,
at
the rate in effect immediately before such termination, plus
(ii) payment of an amount equal to 1.5 times the average of your
annual
bonuses for the three (3) years prior to the year in which such
termination occurs (if no bonus was paid in any of the prior years,
that
year would be removed from the average calculation), plus
(iii) continuing coverage under the life, disability, accident and
health
insurance programs for Company employees generally and under any
supplemental programs covering you or the Company’s senior executives
generally, as from time to time in effect (or, if such coverage is
not
permitted under such programs, payment of the costs for coverage
under
such programs), for the three year period from such termination or
until
you become eligible for substantially similar coverage under the
employee
benefit plans of a new employer, whichever occurs earlier, plus
(iv) immediate and unconditional vesting of any unvested stock options
and
stock grants previously awarded to you and, for the one year period
following such termination, the right to exercise any stock options
held
by you; provided,
however,
that any unvested “performance” stock options, stock grants, long term
incentive awards or other similar awards shall not vest unless the
applicable performance objectives have been achieved prior to the
date of
termination and any other requirements in relevant plan documents
have
been met. Payment of the amounts set forth in clauses (i) and (ii)
of this
subparagraph (b) shall be made by the Company to you as follows:
(A)
amounts due shall be paid in cash in equal monthly installments at
the end
of each month over the 18 months following the date of termination;
provided,
however,
that in order to avoid the imposition of accelerated or additional
taxes
under Section 409A of the Code, any payments that would have been
paid
during the six month period following the date of termination shall
be
paid in a lump sum on the date that is six months following the date
of
termination. Your right to receive the payments and benefits described
in
this subparagraph (b) shall be conditioned on your execution and
delivery
of a written release of claims against the Company which may include
covenants with respect to the treatment of confidential information,
non
disparagement and/or non competition, such covenants to be in a form
and
substance satisfactory to the Company in its sole discretion and
your
continued compliance with the requirements set forth in Paragraph
2.
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2. Nonsolicitation
of Employees.
For a
period of 1 year after the termination of your employment with the Company,
you
hereby agree that you will not directly or indirectly solicit any employee
of
the Company or any employee of any subsidiary of the Company to leave his or
her
employment.
3. If,
at
the time of enforcement of the restrictive covenants in paragraph 2, a court
holds that the restrictions stated therein are unreasonable under the
circumstances then existing, then the maximum duration, scope or geographic
area
reasonable under such circumstances shall automatically be substituted for
the
duration, scope or geographic area stated in such paragraph and the court shall
be allowed and is hereby requested to revise the restrictions contained herein
to cover the maximum duration, scope and geographic area permitted by law.
The
covenants contained in paragraph 2 are independent and severable from one
another.
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4. Change-In-Control
Agreement.
You
acknowledge and agree that you will have no right to receive any of the payments
or benefits described in this letter agreement in connection with a Change
in
Control. If and to the extent that you are entitled to receive any payments
or
benefits under the Change-In-Control Agreement, your rights will be governed
exclusively by the Change-In-Control Agreement and this letter agreement will
be
of no force or effect. If and to the extent that there is any conflict or
inconsistency between this letter agreement and the Change-In-Control Agreement,
the Change-In-Control Agreement shall govern.
5. This
letter agreement shall be construed, interpreted and governed in accordance
with
the laws of the State of New York, without reference to rules relating to
conflicts of law. The state and federal courts in the State of New York shall
have exclusive jurisdiction over any claims arising under this letter agreement.
This letter agreement shall be deemed an “option agreement” for purposes of the
Company’s Amended and Restated 2000 Stock Option Plan
Please
indicate your agreement to the terms hereof by signing in the space provided
below.
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| By: | /s/ ▇. ▇▇▇▇▇ ▇▇▇▇ | |
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Name: ▇. ▇▇▇▇▇ ▇▇▇▇ |
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| Title: Chief Executive Officer | ||
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Accepted
and agreed to as of the date first
above
written:
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| /s/ ▇▇▇▇ ▇▇▇▇▇▇ | |||
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