Contract
Exhibit
10.3
AGREEMENT
dated as of August 12, 2005 (the “Agreement”),
by
and between MILLENNIUM CELL INC., a Delaware corporation (“Millennium
Cell”),
and
DKRW ENERGY LLC, a Delaware limited liability company (“DKRW”).
WHEREAS,
Millennium Cell and DKRW are parties to that certain Agreement dated as of
July
14, 2004 (the “Previous
Agreement”),
in
connection with the employment of H. Xxxxx Xxxx, one of a number of members
of
DKRW, by Millennium Cell;
WHEREAS,
Section 6.18 of the Second Amended and Restated Operating Agreement of DKRW
(the
“Operating
Agreement”)
restricts the managers, members and officers of DKRW from acting as employees
of
an energy-related business without the consent of the Board of Managers of
DKRW
(the “DKRW
Board”);
WHEREAS,
Millennium Cell is an energy-related business which desires to continue to
employ Xx. Xxxx as its and Chief Executive Officer, and Xx. Xxxx desires to
accept such employment;
WHEREAS,
the DKRW Board has agreed to grant its consent to such continued employment
subject to the terms and conditions set forth in this Agreement.
In
consideration of the above premises and the mutual covenants set forth herein,
and for other good and valuable consideration, the receipt and sufficiency
of
which is hereby acknowledged, the parties hereto, intending to be legally bound,
hereby agree as follows:
1. Waiver.
DKRW
hereby grants its consent to Xx. Xxxx’x continued employment by Millennium Cell
in accordance with Section 6.18 of the Operating Agreement and to not preclude
Xx. Xxxx from accepting such employment or from performing his obligations
thereunder. The parties agree and acknowledge that, except as set forth in
Section 3, the Previous Agreement shall be null and void and of no further
force
and effect as of the date hereof.
2. Term.
The
term of this Agreement (the “Term”)
shall
commence upon the date hereof, and shall end upon any termination or expiration
of that certain employment agreement dated as of the date hereof, between
Millennium Cell and Xx. Xxxx.
3. Compensation.
In
consideration for the waiver set forth in Section 1, during the Term, Millennium
Cell shall pay to DKRW $12,500 per month, payable monthly in advance;
provided,
that
notwithstanding anything in the Previous Agreement to the contrary, the
consideration set forth in this Section 3 shall be in effect retroactively
commencing upon April 25, 2005, and no other compensation shall be payable
by
Millennium Cell to DKRW in connection with Xx. Xxxx’x employment by Millennium
Cell from April 25, 2005, through the date hereof. The parties agree and
acknowledge that any amounts already paid by Millennium Cell to DKRW in excess
of the amount payable pursuant to the Previous Agreement as amended by this
Section 3 may be used as a set off against any amounts payable by Millennium
Cell to DKRW under this Agreement.
4. Entire
Agreement.
This
Agreement contains the entire understanding between the parties concerning
the
subject matter contained in herein. There are no representations, agreements,
arrangements or understandings, oral or written, between the parties hereto,
relating to the subject matter of this Agreement, that are not fully expressed
herein.
5.
Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York (without regard to such State’s conflict of laws
doctrines).
6.
Notices.
Any
notice required to be given or delivered to the Company under the terms of
this
Agreement shall be in writing and addressed to Millennium Cell at 0 Xxxxxxxxxx
Xxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx [Missing Graphic Reference]07724,
Fax: 000-000-0000, Attention: Chairman of the Board, or to such other address
as
shall be provided in writing to DKRW. Any notice required to be given or
delivered to DKRW shall be in writing and addressed to the most recent address
of DKRW, as set forth in the books and records of Millennium Cell. All notices
shall be deemed effective upon personal delivery against receipt therefor;
one
day after being sent by Federal Express or similar overnight delivery; or three
days after being mailed registered or certified mail, postage prepaid, and
properly addressed to the party to be notified.
7. Amendments
and Waivers.
The
parties hereto may, by written agreement signed by the parties, modify any
of
the covenants or agreements or modify the time for the performance of any of
the
obligations contained in this Agreement or in any document delivered pursuant
to
this Agreement. Any party hereto may waive, by written instrument signed by
such
party, compliance by the other party, with any of the other party’s obligations
set forth in this Agreement.
8. No
Waiver of Rights.
No
failure or delay on the part of any party in the exercise of any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude other or further exercise thereof
or of any other right or power. The waiver by any party or parties hereto of
a
breach of any provision of this Agreement shall not operate or be construed
as a
waiver of any other or subsequent breach hereunder. All rights and remedies
existing under this Agreement are cumulative and are not exclusive of any rights
or remedies otherwise available.
9. Limited
Rights of DKRW and Third Parties.
Neither
DKRW nor any beneficiary of DKRW shall under any circumstances have any option
or right to require payments hereunder otherwise than in accordance with the
terms hereof. Except as otherwise provided by law, neither DKRW nor any such
beneficiary shall have the power in any manner to anticipate, alienate, assign,
charge or encumber any payments contemplated by this Agreement, and all rights
and benefits of DKRW or such beneficiary shall be for the sole personal benefit
of DKRW or such beneficiary, as the case may be, and no other person shall
acquire any right, title or interest hereunder by reason of any sale,
assignment, transfer, claim or judgment or bankruptcy proceedings against DKRW
or such beneficiary.
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10. Submission
to Jurisdiction.
Any and
all suits, legal actions or proceedings against any party hereto arising out
of
this Agreement shall be brought in any United States federal court sitting
in
the State of New York or any other court of appropriate jurisdiction sitting
in
the State of New York, as the party bringing such suit may elect in its sole
discretion, and each party hereby submits to and accepts the exclusive
jurisdiction of such courts for the purpose of such suit, legal action or
proceeding, each party hereto waives personal service of any summons, complaint
or other process and agrees that service thereof may be made by certified or
registered mail. Each party hereto hereby irrevocably waives any objection
which
it may now hereafter have to the laying of venue of such suit, legal action
or
proceeding in any such court and hereby further waives any claim that any such
suit, legal action or proceeding brought in any such court has been brought
in
an inconvenient forum.
11. Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but both of which together shall constitute one and
the same instrument.
12. Construction.
Whenever used in this Agreement, the singular number will include the plural,
and the plural number will include the singular, and the masculine or neuter
gender shall include the masculine, feminine or neuter gender. The headings
of
the Sections of this Agreement have been inserted for purposes of convenience
and shall not be used for interpretive purposes.
13. Successors.
The
rights and obligations of Millennium Cell under this Agreement shall be
transferable to any successor thereto. The rights and obligations of DKRW under
this Agreement may only be assigned with the prior written consent of Millennium
Cell.
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the day and year first set forth above.
By:
/s/G. Xxxxx Xxxxxxxx
Name:
G.
Xxxxx Xxxxxxxx
Title:
Chairman of the Board
DKRW
ENERGY LLC
By:
Name:
Title:
