AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT
Exhibit
10.9
AMENDMENT
NO. 1 TO
This
Amendment
No. 1 (this “Amendment”) to the
Stock Purchase Agreement dated as of February 27, 2005 by and between Millennium
Cell Inc., a
Delaware corporation (the “Company”) and
The Dow Chemical Company (the “Purchaser”)
(together with all exhibits, schedules and attachments thereto and made a part
thereof, the “Stock
Purchase Agreement”), is
made as of the 25th day of April 2005, by and between the Company and the
Purchaser. The Company and the Purchaser also may be referred to herein
individually as a “Party” or
collectively as the “Parties”.
Recitals
WHEREAS,
the Parties entered into the Stock Purchase Agreement;
WHEREAS,
the Company is currently in discussions with Ramius Capital Group, LLC
(“Ramius”)
regarding Ramius’s proposed investment in the Company (the “Series
C Transaction”); and
WHEREAS,
the Parties desire to amend certain provisions of the Stock Purchase Agreement
for the purpose of reflecting changes to the transactions contemplated by the
Stock Purchase Agreement necessitated by the Series C Transaction;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements of the
Parties contained herein and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree as
follows:
Section
1. Definitions.
Capitalized terms used in this Amendment but not defined herein shall have the
meanings specified in the Stock Purchase Agreement.
Section
2. Amendments
to Section 1.10.
(a) Section
1.10 is
hereby amended by adding the following definition in alphabetical
order:
“Series
C Transaction” means the investment of $10,000,000 by Ramius Capital Group, LLC
and other institutional accredited investors in the Company evidenced by the
issuance of 10,000 shares of the Company’s Series C Convertible Preferred Stock,
par value $0.001, pursuant to the Securities Purchase Agreement between the
Company and Ramius Capital Group, LLC dated April 20, 2005.
(b) The
definition of “Ownership Interest” in Section
1.10 is
hereby amended by inserting the following sentence at the end of the current
definition:
“For
the purposes of determining Ownership Interest at the First Closing, the Series
C Transaction, which is to occur simultaneously with the First Closing, shall be
deemed to have occurred prior to the First Closing and the number of shares of
Common Stock into which the Series C Preferred Stock is then convertible shall
be included for purposes of determining the Ownership Interest on a Fully
Diluted Basis.”
Section
3. Amendment
to Section 2.3.
Section
2.3 is
hereby amended by inserting the following at the end of the first sentence of
Section
2.3
“,
provided, that Schedule 2.3 will reflect the consummation of the Series C
Transaction, which is to occur simultaneously with the First
Closing.”
Section
4. Amendment
to Schedule 2.3.
Schedule
2.3 is
hereby deleted in its entirety and replaced by Schedule
2.3
(Capitalization) attached hereto.
Section
5. Amendment
to Section 4.1.
Section
4.1 is
hereby amended by inserting the following at the end of the current
provision:
“Without
limiting the generality of the foregoing, prior to the First Closing, the Board
of Directors of the Company shall reduce the number of shares of Common Stock
reserved for issuance under the Company’s stock option plan from eight million
five hundred thousand (8,500,000) shares of Common Stock to six million
(6,000,000) shares of Common Stock and reserve for issuance upon the conversion
of the Preferred Shares or exercise of Warrants, in each case, issued pursuant
to this Agreement and Joint Development Agreement, not less than eleven million
one hundred thousand (11,100,000) shares of Common Stock. After the date on
which the certificate of incorporation of the Company has been duly amended to
increase the number of authorized shares of Common Stock to not less than eighty
five million (85,000,000) shares, the number of shares of Common Stock reserved
for issuance under the Company’s stock option plan may be increased above six
million(6,000,000) shares.”
Section
6. Amendment
to Section 9.8.
Section
9.8 is
hereby amended by inserting the following at the end of the current
provision:
“provided,
further, that in addition the Company shall pay all legal fees and expenses
reasonably incurred by the Purchaser in connection with Purchaser’s review of
the Series C Transaction and the transaction contemplated by this
Amendment.”
Section
7. Amendment
to Attachment I.
Attachment
I (Series A
Certificate of Designations) is
hereby deleted in its entirety and replaced by Attachment
I attached
hereto.
Section
8. Amendment
to Attachment II.
Attachment
II (Series
B Certificate of Designations) is hereby deleted in its entirety and replaced by
Attachment
II attached
hereto.
Section
9. Amendment
to Section 5.1(a)(i) of Exhibit A.
Section
5.1(a)(i) of
Exhibit
A (Form of
Joint Development Agreement) is hereby amended by deleting the reference to “one
(1)” and inserting in lieu thereof “one
and twenty-five hundredths (1.25)”.
Section
10. Amendment
to Exhibit D.
Exhibit
D (Form of
Registration Rights Agreement) is hereby deleted in its entirety and replaced by
Exhibit
D attached
hereto.
Section
11. Amendment
to Exhibit F.
Exhibit
F (Form of
Opinion of Counsel) is hereby deleted in its entirety and replaced by
Exhibit
F attached
hereto.
Section
12. Limited
Amendment. Except
as specifically provided in this Amendment and as the context of this Amendment
otherwise may require to give effect to the intent and purposes of this
Amendment, the Stock Purchase Agreement shall remain in full force and effect
without any other amendments or modifications.
Section
13. Captions. The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation of this Amendment.
Section
14. Governing
Law. This
Amendment shall be construed in accordance with and governed by the law of the
State of Delaware (without regard to the choice of law provisions
thereof).
Section
15. Counterparts;
Effectiveness. This
Amendment may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument. This Amendment shall become effective when each Party shall
have received a counterpart hereof signed by the other Parties. Each
Party may execute this Amendment on a facsimile of this Amendment. In addition,
facsimile signatures of authorized signatories of any Party shall be valid and
binding, and delivery of a facsimile signature by such Party shall constitute
due execution and delivery of this Amendment.
Section
16. Construction. The
Parties have participated jointly in the negotiation and drafting of this
Amendment. In the event an ambiguity or question of intent or interpretation
arises, this Amendment shall be construed as if drafted jointly by the Parties
and no presumption or burden of proof shall arise favoring or disfavoring any
Party by virtue of the authorship of any of the provisions of this
Amendment.
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of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
above written.
By: /s/
Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
President
THE
DOW CHEMICAL COMPANY:
By:
/s/ Xxxxxx X.
Xxxxx
Name:
Xxxxxx X. Xxxxx
Title: VP
Ventures
