VOTING AGREEMENT
Exhibit
10.3
VOTING
AGREEMENT, dated as of February 15, 2007 (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 stockholders listed on the signature pages hereto under the heading
"Stockholders"
(each a
"Stockholder"
and
collectively, the "Stockholders").
WHEREAS,
as of the date hereof, (i) each Stockholder owns the number of shares of Common
Stock set forth below such Stockholder’s name on the signature page hereto and
(ii) each 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 of the date hereof, the Stockholders own collectively __________ shares
of
Common Stock, which represent in the aggregate approximately ___% of the total
issued and outstanding capital stock of the Company; and
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 each Stockholder agree, and in order to induce the
Buyers to enter into the Securities Purchase Agreement, the Company has agreed
to use its reasonable best efforts to cause the Stockholders to enter into
this
Agreement and each Stockholder, by executing this Agreement, is agreeing 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.
Each
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 obtaining
the Stockholder Approval (as defined in the Securities Purchase Agreement)
as
described in Section 4(p) of the Securities Purchase Agreement, each of the
Stockholders shall vote the Common Stock owned by the Stockholder, any Option
Shares (to the extent any Options have been exercised) and any Other Securities
(a) in favor of the Stockholder Approval and (b) against any proposal or any
other corporate action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of
the
Company under the Securities Purchase Agreement or which could result in any
of
the conditions to the Company's obligations under the Securities Purchase
Agreement not being fulfilled. 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
Each
Stockholder hereby represents and warrants, severally but not jointly, to the
Company and each of the Buyers as follows:
SECTION
2.01. Authority
Relative to this Agreement.
Each
Stockholder has all necessary power and authority to execute and deliver this
Agreement, to perform his or its obligations hereunder and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by such Stockholder and constitutes a legal, valid and binding
obligation of such Stockholder, enforceable against such 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 such Stockholder does not, and
the
performance of this Agreement by such Stockholder shall not, (i) conflict with
or violate any federal, state or local law, statute, ordinance, rule,
regulation, order, judgment or decree applicable to any Stockholder or by which
the Common Stock, Options, or any Other Securities currently owned by such
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 such Stockholder pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Stockholder is a party or by which such
Stockholder is bound or the Common Stock or Other Securities owned by such
Stockholder are bound.
(b) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder shall not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental entity by such Stockholder.
SECTION
2.03. Title
to the Stock.
As of
the date hereof, (a) each 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) each Stockholder owns Options to purchase the Option Shares.
As
of the date hereof, each 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 such
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 such
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. No Stockholder has appointed or granted any proxy,
which appointment or grant is still effective, with respect to the Common Stock
or Other Securities owned by such Stockholder.
ARTICLE
III
MISCELLANEOUS
SECTION
3.01. Further
Assurances.
Each
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. Any Buyer shall be entitled to its reasonable
attorneys' fees in any action brought to enforce this Agreement in which it
is
the prevailing party.
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 (i) by an instrument in writing signed
by
the parties hereto and (ii) with the written consent the Buyers.
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 each 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.
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 each 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.
IN
WITNESS WHEREOF, each Stockholder and the Company has duly executed this
Agreement as of the date first written above.
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THE
COMPANY:
By:________________________
Name:
Title:
Address:
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IN
WITNESS WHEREOF, each Stockholder and the Company has duly executed this
Agreement as of the date first written above.
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STOCKHOLDER:
________________________________
[
]
Address:
As
of the date hereof, owner of:
______________Shares
of Common Stock
Options
to Purchase ______Shares of Common
Stock
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