CONSULTING TERMINATION AGREEMENT
Exhibit
10.5
This
Consulting Termination Agreement (this Agreement”)
is
entered into as of December 29, 2006 by and among Millennium Cell Inc., a
Delaware corporation (“MCEL”),
Xxxxxx X. Xxxxxx, an individual residing in the State of New Jersey
(“RJK”),
and
Xxxxxx X. Xxxxx, an individual residing in the State of New Jersey
(“SDP”).
Each
of MCEL, RJK and SDP is referred to herein as a “Party”
and,
collectively, the “Parties.”
R
E C I T
A L S:
A. MCEL
and
RJK are parties to that certain Consulting Agreement, dated as of December
15,
2005 and amended on February 15, 2006 (the “RJK
Consulting Agreement”),
whereby MCEL retained the services of RJK as a consultant to MCEL in exchange
for restricted shares of common stock of MCEL, par value $0.001 per share
(“MCEL
Common Stock”);
B. MCEL
and
SDP are parties to that certain Consulting Agreement, dated as of December
15,
2005 and amended on February 15, 2006 (the “SDP
Consulting Agreement”),
whereby MCEL retained the services of SDP as a consultant to MCEL in exchange
for restricted shares of MCEL Common Stock;
C. On
the
date hereof, MCEL, M.C.E. Venture, L.L.C., a wholly-owned subsidiary of MCEL
(“Merger
Sub”),
and
Gecko Energy Technologies, Inc. (“Gecko”),
RJK
and SDP have entered into an Agreement and Plan of Merger (the “Merger
Agreement”),
whereby MCEL will acquire Gecko in a merger of Gecko with and into Merger Sub
(the “Merger”);
D. Effective
as of January 2, 2007 and subject to the terms set forth herein, each of MCEL
and RJK desire to terminate the RJK Consulting Agreement; and
E. Effective
as of January 2, 2007 and subject to the terms set forth herein, each of MCEL
and SDP desire to terminate the SDP Consulting Agreement.
NOW,
THEREFORE, the Parties hereby agree as follows:
1. Terminations.
(a) MCEL
and
RJK hereby agree that as of January 2, 2007, the RJK Consulting Agreement shall
be terminated and of no further force or effect; provided,
however,
that
(x) as set forth in the RJK Consulting Agreement, the provisions contained
in
Section
3
(Termination), Section
5
(Ownership of Proprietary Information), Section
6
(Disclosure and Ownership of Inventions), Section
7
(Xxxxxxx
Xxxxxxx, Etc.), Section
10
(Taxes),
Section
11
(Complete Agreement), Section
15
(Non-Disparagement), Section
16
(Indemnification; Injunction), Section
17
(Governing Law), Section
18
(Submission to Jurisdiction) and Section
19
(Survivability) of the RJK Consulting Agreement shall survive the termination
effected hereby and the rights and obligations of MCEL and RJK under such
provisions shall continue in full force and effect, (y) notwithstanding the
provisions of the RJK Consulting Agreement, the provisions contained in
Sections
4(a),
4(c),
4(d)
and
4(e)
relating
to RJK’s agreement to maintain MCEL’s Confidential Information (as such term is
defined in the RJK Consulting Agreement) shall survive the termination effected
hereby and shall continue in full force and effect.
(b) MCEL
and
SDP hereby agree that as of January 2, 2007, the SDP Consulting Agreement shall
be terminated and of no further force or effect; provided,
however,
that
(x) as set forth in the SDP Consulting Agreement, the provisions contained
in
Section
3
(Termination), Section
5
(Ownership of Proprietary Information), Section
6
(Disclosure and Ownership of Inventions), Section
7
(Xxxxxxx
Xxxxxxx, Etc.), Section
10
(Taxes),
Section
11
(Complete Agreement), Section
15
(Non-Disparagement), Section
16
(Indemnification; Injunction), Section
17
(Governing Law), Section
18
(Submission to Jurisdiction) and Section
19
(Survivability) (such provisions, together with the provisions referenced in
clause (x) of paragraph (a) above, the “Surviving
Provisions”)
of the
SDP Consulting Agreement shall survive the termination effected hereby and
the
obligations of MCEL and SDP under the Surviving Provisions shall continue in
full force and effect, (y) notwithstanding the provisions of the SDP Consulting
Agreement, the provisions contained in Sections
4(a),
4(c),
4(d)
and
4(e)
relating
to SDP’s agreement to maintain MCEL’s Confidential Information (as such term is
defined in the SDP Consulting Agreement) shall survive the termination effected
hereby and shall continue in full force and effect.
2.
Releases.
(a) Except
for claims arising under the Surviving Provisions or under the terms of this
Agreement, each of RJK and SDP (together, the “Releasing
Parties”),
for
and in consideration of MCEL’s agreement to effect the terminations described in
Section 1, hereby knowingly and voluntarily releases and discharges MCEL,
together with its subsidiaries, affiliates, past, present and future
stockholders, managers, members, partners, officers, directors, employees,
agents and consultants, and their respective heirs, executors, administrators,
agents, trustees, employees, representatives, successors, transferees or
assignees, and any other person or entity acting on their behalf (collectively,
the “Releasees”)
from
(and covenant not to institute, pursue or participate in any complaint, action,
suit, arbitration or other proceeding against the Releasees relating to) any
and
all actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, damages, judgments, executions,
liabilities, costs, expenses, losses, claims and demands of any kind or
character whatsoever, in law, admiralty or equity (collectively, “Claims”),
from
the beginning of the world to the day of the date of this Agreement, whether
presently known or unknown, asserted or unasserted, which the Releasing Parties
ever had, now have or hereafter can, shall or may have against the Releasees
arising out of or by reason of the RJK Consulting Agreement and the SDP
Consulting Agreement and the transactions contemplated thereby and the
termination thereof.
3. Vesting
of Restricted Shares.
For the
avoidance of doubt, all Restricted Shares (as such term is defined in the RJK
Consulting Agreement and the SDP Consulting Agreement) granted under the RJK
Consulting Agreement and the SDP Consulting Agreement which have not vested
as
of the effective time of the Merger shall vest on January 2, 2007.
4. Due
Authorization; Successors.
Each
Party represents and warrants that it has the power and authority to execute
and
deliver this Agreement and that this Agreement has been duly authorized and
constitutes a valid and binding agreement of such Party, enforceable in
accordance with its terms. This Agreement shall be binding upon the respective
successors in interest of the Parties hereto and shall inure to the benefit
of,
and be enforceable by, the respective successors in interest of the Parties
hereto.
5. Governing
Law.
This
Agreement and any dispute arising hereunder or in connection with the matters
contemplated hereby, whether in contract, tort or otherwise, shall be governed
in all respects by the internal laws of the State of New York,
without
giving effect to New York principles or rules of conflict of laws to the extent
such principles or rules would require or permit the application of the laws
of
another jurisdiction.
6. Counterparts.
This
Agreement may be executed by facsimile and in one or more counterparts, each
of
which shall be deemed an original copy of this Agreement, and all of which,
taken together, shall be deemed to constitute one and the same
agreement.
**
Remainder of Page Intentionally Blank, Signature Page Follows **
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the
date first above written.
By: /s/
Xxxx Xxxxxx
Name:
Xxxx Xxxxxx
Title:
President
/s/
Xxxxxx X. Xxxxxx
XXXXXX
X.
XXXXXX
/s/
Xxxxxx X. Xxxxx
XXXXXX
X.
XXXXX
