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EXHIBIT 10.3
AMENDED AND RESTATED AGREEMENT
This amended and restated Agreement dated August 1, 2000 (this
"Agreement") is made by and among ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇▇"), GP Strategies
Corporation, a Delaware corporation ("GP Strategies"), and Millennium Cell Inc.,
a Delaware corporation (f/k/a Millennium Cell LLC and hereinafter the
"Company").
WHEREAS, ▇▇▇▇▇▇▇▇ and GP Strategies, f/k/a National Patent
Development Corporation, entered into a License Agreement dated July 31, 1997
(the "License Agreement") pursuant to which, inter alia, ▇▇▇▇▇▇▇▇ granted GP
Strategies an exclusive worldwide license to use and develop the invention
relating to United States Letters Patent No. 5,804,329 (f/k/a U.S. Application
Serial No. 08/579,781) including any improvements or modifications thereto
(hereinafter "Covered Technology");
WHEREAS, GP Strategies and the Company, with the consent of
▇▇▇▇▇▇▇▇, entered into an agreement dated December 17, 1998 styled "Assignment
and Assumption of License Agreement," whereby the Company acquired all rights
and obligations of GP Strategies relating to the License Agreement in
consideration for certain royalty payments;
WHEREAS, ▇▇▇▇▇▇▇▇, ▇▇ Strategies and the Company entered into
an agreement dated May 24, 2000, (the "License Termination Agreement") pursuant
to which the License Agreement was terminated and the Covered Technology was
acquired by the Company;
WHEREAS, ▇▇▇▇▇▇▇▇, ▇▇ Strategies and the Company by agreements
dated July 14, 2000 and July 27, 2000 amended and restated the License
Termination Agreement;
WHEREAS, ▇▇▇▇▇▇▇▇, ▇▇ Strategies and the Company wish to amend
and restate the July 14, 2000
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WHEREAS, each party to this Agreement represents and warrants
that he or it has the full and unencumbered right and authority to enter into
this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. License Agreement
▇▇▇▇▇▇▇▇ and the Company hereby agree that, as of May 24,
2000, the License Agreement is hereby terminated. ▇▇▇▇▇▇▇▇ agrees to execute as
of May 24, 2000 the Assignment, attached hereto as Appendix A, whereby all
right, title and interest in and to "Covered Technology" is and is hereby
assigned from ▇▇▇▇▇▇▇▇ to the Company, including the right to ▇▇▇ for any past
infringement of said "Covered Technology." In consideration for the foregoing
Assignment, the Company agrees to issue 206,897 shares of the Company's common
stock, $ .001 par value per share, ("Shares") to ▇▇▇▇▇▇▇▇; and ▇▇▇▇▇▇▇▇ agrees
that the Company is fully, forever, irrevocably and unconditionally discharged
and released from all past, present and future claims, obligations, duties,
promises, agreements and liabilities to make royalty payments of any kind
relating to "Covered Technology."
2. Assignment and Assumption of License Agreement
GP Strategies and the Company hereby agree that the Assignment
and Assumption of License Agreement is terminated concurrently with the
termination of the License Agreement. In consideration for terminating the
Assignment and Assumption of License Agreement, the Company agrees to issue to
GP Strategies 250,000 options in the Company ("Options") with an exercise price
equal to the price of the common stock of the Company at its
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initial public offering. GP Strategies agrees that the Company is fully,
forever, irrevocably and unconditionally discharged and released from all past,
present and future claims, obligations, duties, promises, agreements and
liabilities to make royalty payments of any kind relating to the Assignment and
Assumption Agreement.
3. Representations by and Covenants of ▇▇▇▇▇▇▇▇ and GP
Strategies
(a) Each of ▇▇▇▇▇▇▇▇ and GP Strategies acknowledges
that the Company is a private corporation which intends to file a registration
statement (the "Registration Statement") for its initial public offering on Form
S-1 with the Securities and Exchange Commission ("SEC") pursuant to the
registration requirements of the Securities Act of 1933, as amended (the "Act").
(b) Each of ▇▇▇▇▇▇▇▇ and GP Strategies recognizes
that the acceptance of the Shares by ▇▇▇▇▇▇▇▇ and the Options by GP Strategies,
respectively (the "Securities") involves a high degree of risk in that (i) the
Company will need additional capital but has no assurance of additional
necessary capital; (ii) an investment in the Company is highly speculative and
only investors who can afford the loss of their entire investment should
consider investing in the Company and the Securities; (iii) an investor may not
be able to liquidate his investment; (iv) transferability of the Securities is
extremely limited; and (v) an investor could sustain the loss of his entire
investment, as well as other risks, as more fully set forth herein and in the
Offering Documents (as hereinafter defined).
(c) Each of ▇▇▇▇▇▇▇▇ and GP Strategies represents
that he or it is able to bear the economic risk of an investment in the
Securities and can afford the loss of his or its entire investment.
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(d) Each of ▇▇▇▇▇▇▇▇ and GP Strategies acknowledges
that he or it has prior investment experience, including investments in
non-listed and non-registered securities, or he or it has employed the services
of an investment advisor, attorney or accountant to read all of the documents
furnished or made available by the Company both to him and to all other
prospective investors in the Securities and to evaluate the merits and risks of
such an investment on his or its behalf, and that he or it recognizes the highly
speculative nature of this investment.
(e) Each of ▇▇▇▇▇▇▇▇ and GP Strategies acknowledges
receipt and careful review of a draft of the Registration Statement (draft dated
April 7, 2000) and the attachments thereto (the "Offering Documents") and hereby
represents that he or it has been furnished by the Company during the course of
this transaction with all information regarding the Company which he or it had
requested or desired to know; that all documents which could be reasonably
provided have been made available for his or its inspection and review; that he
or it has been afforded the opportunity to ask questions of and receive answers
from duly authorized officers or other representatives of the Company concerning
the terms and conditions of the Offering, and any additional information which
he or it had requested.
(f) Each of ▇▇▇▇▇▇▇▇ and GP Strategies acknowledges
that the offering of Securities contemplated hereby may involve tax
consequences, and that the contents of the Offering Documents do not contain tax
advice or information. Each of ▇▇▇▇▇▇▇▇ and GP Strategies acknowledges that he
or it must retain his or its own professional advisors to evaluate the tax and
other consequences of an investment in the Securities.
(g) Each of ▇▇▇▇▇▇▇▇ and GP Strategies acknowledges
that the offering of Securities contemplated hereby has not been reviewed by the
SEC because of the
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Company's representations that this is intended to be a nonpublic offering
pursuant to Section 4(2) of the Act. Each of ▇▇▇▇▇▇▇▇ and GP Strategies
represents that the Securities to be acquired by him or it pursuant hereto are
being acquired for his or its own account, for investment and not for
distribution or resale to others. Each of ▇▇▇▇▇▇▇▇ and GP Strategies agrees that
he or it will not sell or otherwise transfer such securities unless they are
registered under the Act or unless an exemption from such registration is
available.
(h) Each of ▇▇▇▇▇▇▇▇ and GP Strategies understands
that the Securities have not been registered under the Act by reason of a
claimed exemption under the provisions of the Act which depends, in part, upon
his or its investment intention. In this connection, each of ▇▇▇▇▇▇▇▇ and GP
Strategies understands that it is the position of the SEC that the statutory
basis for such exemption would not be present if his or its representation
merely meant that his or its present intention was to hold such securities for a
short period, such as the capital gains period of tax statutes, for a deferred
sale, for a market rise, assuming a market develops, or for any other fixed
period. Each of ▇▇▇▇▇▇▇▇ and GP Strategies realizes that, in the view of the
SEC, acceptance of the Securities now with an intent to resell would create a
purchase with an intent inconsistent with his or its representation to the
Company, and the SEC might regard such a sale or disposition as a deferred sale
to which such exemptions are not available.
(i) Each of ▇▇▇▇▇▇▇▇ and GP Strategies understands
that there is no public market for the Securities. Each of ▇▇▇▇▇▇▇▇ and GP
Strategies understands that even if a public market were to exist following the
Company's proposed initial public offering for the Common Stock, Rule 144 (the
"Rule") promulgated under the Act requires, among other conditions, a one year
holding period prior to the resale (in limited amounts) of securities
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acquired in a nonpublic offering without having to satisfy the registration
requirements under the Act. Each of ▇▇▇▇▇▇▇▇ and GP Strategies understands that
the Company makes no representation or warranty regarding its fulfillment in the
future of any reporting requirements under the Securities Exchange Act of 1934,
as amended, or its dissemination to the public of any current financial or other
information concerning the Company, as is required by the Rule as one of the
conditions of its availability. Each of ▇▇▇▇▇▇▇▇ and GP Strategies understands
and hereby acknowledges that the Company is under no obligation to register the
Securities to be issued pursuant to this Agreement under the Act. Each of
▇▇▇▇▇▇▇▇ and GP Strategies consents that the Company may, if it desires, permit
the transfer of the Securities out of his or its name only when his or its
request for transfer is accompanied by an opinion of counsel reasonably
satisfactory to the Company that neither the sale nor the proposed transfer
results in a violation of the Act or any applicable state "blue sky" laws
(collectively "Securities Laws"). Each of ▇▇▇▇▇▇▇▇ and GP Strategies agrees to
hold the Company and its directors, officers and controlling persons and their
respective heirs, representatives, successors and assigns harmless and to
indemnify them against all liabilities, costs and expenses incurred by them as a
result of any misrepresentation made by him or it contained herein or any sale
or distribution by each of ▇▇▇▇▇▇▇▇ and GP Strategies in violation of any
Securities Laws.
(j) Each of ▇▇▇▇▇▇▇▇ and GP Strategies consents to
the placement of one or more legends on any certificate or other document
evidencing his or its Securities and the common Stock stating that they have not
been registered under the Act and setting forth or referring to the restrictions
on transferability and sale thereof.
4. Representations of The Company
The Company represents and warrants to ▇▇▇▇▇▇▇▇ and GP
Strategies that:
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(a) The Company is a corporation duly organized,
existing and in good standing under the laws of the State of Delaware and has
the corporate power to conduct the business which it conducts and proposes to
conduct.
(b) The execution, delivery and performance of this
Agreement by the Company will have been duly approved by the Board of Directors
of the Company and all other actions required to authorize and effect the offer,
sale and transfer of the Securities and the securities contained therein will
have been duly taken and approved.
(c) The Options have been duly and validly
authorized, and when exercised, the shares of Common Stock, upon payment of the
applicable exercise price, will be validly issued, fully paid and nonassessable.
The Shares have been duly and validly authorized, issued and fully paid and
nonassessable.
(d) The Company has obtained, or is in the process of
obtaining, all licenses, permits and other governmental authorizations necessary
to the conduct of its business; such licenses, permits and other governmental
authorizations obtained are in full force and effect; and the Company is in all
material respects complying therewith.
(e) The Company knows of no pending or threatened
legal or governmental proceedings to which the Company is a party which could
materially adversely affect the business, property, financial condition or
operations of the Company.
(f) The Company is not in violation of or default
under, nor will the execution and delivery of this Agreement, the issuance of
the Securities, and the incurrence of the obligations herein and therein set
forth and the consummation of the transactions herein or therein contemplated,
result in a violation of, or constitute a default under, the certificate of
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incorporation or by-laws of the Company, in the performance or observance of any
material obligations, agreement, covenant or condition contained in any bond,
debenture, note or other evidence of indebtedness or in any material contract,
indenture, mortgage, loan agreement, lease, joint venture or other agreement or
instrument to which the Company is a party or by which it or any of its
properties may be bound or in violation of any material order, rule, regulation,
writ, injunction, or decree of any government, governmental instrumentality or
court, domestic or foreign.
5. Miscellaneous
(a) This Agreement and the rights of the parties
hereto shall be governed as to the validity, construction, enforcement and in
all other respects by the laws of the State of New York, without regard to its
conflict of laws rules.
(b) At any time, and from time to time, each party
hereby agrees with the other party that it will execute such additional
instruments and take such actions as may be reasonably requested by such other
party in order for it to realize the benefit of the transactions contemplated
hereby.
(c) This Agreement embodies the entire agreement and
understanding among the parties hereto and supersedes any and all prior
agreements and understandings between the parties hereto, written or oral,
relating to the subject matter hereof.
(d) This Agreement may be executed in one or more
counterparts which, taken together, shall constitute the original action of the
signatories hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MILLENNIUM CELL INC.
By: ___________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: CEO and President
GP STRATEGIES CORPORATION
By: ___________________________________
Name:
Title:
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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APPENDIX A
ASSIGNMENT
WHEREAS, I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, a citizen of the United States of
America, whose post office address is ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, have made the inventions identified in the attached Schedule A;
WHEREAS, the inventions identified in Schedule A were the subject of a
License Agreement dated July 31, 1997, which has now been terminated;
WHEREAS, the inventions identified in Schedule A constitute all of the
Covered Technology as that term is defined in the Agreement dated May 24, 2000
attached hereto; and
WHEREAS, MILLENNIUM CELL INC., a corporation organized and existing
under the laws of the State of Delaware, and having an office for the
transaction of business at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
is desirous of acquiring the entire right, title and interest in and to the
inventions identified in Schedule A and in and to the applications for Letters
Patent therefor, and any Letters Patent which may be obtained therefor,
including any reissued or re-examined patents and each and every foreign
counterpart of said inventions, all as set forth in Schedule A;
NOW, THEREFORE, TO ALL WHOM IT MAY CONCERN, BE IT KNOWN, that I, ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇, for the consideration recited in the attached AGREEMENT, hereby
acknowledge at or before the ensealing and delivery of these presents, and the
receipt of which is hereby acknowledged, have sold, assigned, transferred and
conveyed and by these presents do sell, assign, transfer and convey, unto said
MILLENNIUM CELL INC., its successors and assigns the entire right, title and
interest in and to the inventions identified in
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Schedule A, including all rights, past, present and future, to enforce any and
all patents issuing thereon, and any and all improvements thereon, and in and to
said applications and any divisions, continuations or continuations-in-part
thereof, and in and to any Letters Patent of the United States of America which
may be issued on any of said applications, and any reissues and/or
re-examinations thereof, and in and to any and all applications for Letters
Patent filed in foreign countries for said inventions or improvements including
all priority rights, and any and all Letters Patent which may be granted in
foreign countries therefor, TO HAVE AND TO HOLD THE SAME to the full end of the
term or terms for which any and all said Letters Patent may be granted;
AND I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, do hereby authorize and request the
Commissioner of Patents and Trademarks to issue Letters Patent of the United
States of America to said MILLENNIUM CELL INC., as the assignee of the entire
right, title and interest in and to the same, for the sole use and benefit of
said MILLENNIUM CELL INC., its successors and assigns;
AND I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, do hereby covenant and agree to and with
said MILLENNIUM CELL INC., its successors and assigns, that I have the full
power to make this assignment, and that the rights assigned are not encumbered
by any grant, license or right heretofore given, and that I, my executors or
administrators, shall and will do all lawful acts and things and make, execute
and deliver without further compensation, any and all other instruments in
writing, further applications, papers, affidavits, powers of attorney,
assignments, and other documents which, in the opinion of counsel for said
MILLENNIUM CELL INC., its successors and assigns, may be required or necessary
more effectively to secure to and vest in said MILLENNIUM CELL INC., its
successors and assigns, the entire right, title and interest in
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and to said inventions and improvements, applications, Letters Patent, rights,
titles, benefits, privileges, and advantages hereby sold, assigned, transferred
and conveyed, and that I will sign any applications for reissue or
re-examination which may be desired by the owner of the patents assigned hereby.
IN WITNESS WHEREOF, I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, have hereunto set my hand
and seal on the date below written.
DATED:______________________ ____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
STATE OF ____________________)
) ss.:
COUNTY OF ___________________)
BE IT KNOWN, that on this ___ day of ____________, 2000, before me
personally came ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, to me known and known to me to be the person
mentioned in and who executed the foregoing assignment, and he acknowledged to
me that he executed the same as his free act and deed for the use and purposes
therein mentioned.
------------------------------------
Notary Public
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SCHEDULE A
United States Patent No. 5,804,329
for ELECTROCONVERSION CELL
(Appln. Ser. No. 08/579,781)
Australian Appln. Ser. No. 14320/97
Canadian Appln. Ser. No. 2241862
Chinese Appln. Ser. No. 96180019.4
European Patent Convention Appln. Ser. No. 96944546.9
Israeli Appln. Ser. No. 125,126
Indian Appln. Ser. No. ▇▇▇▇/▇▇▇/▇▇
▇▇▇▇▇▇▇▇ Appln. Ser. No. 9-524601
Mexican Appln. Ser. ▇▇. ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Ser. ▇▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Appln. ▇▇▇. ▇▇. ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Patent No. 104555
WIPO Appln. Ser. ▇▇. ▇▇▇▇/▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇/▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Appln. Ser. No. 08/883,859
for ELECTROCONVERSION CELL
(CIP of Appln. Ser. No. 08/579,781)
