EXECUTIVE EMPLOYMENT AGREEMENT
This
Executive Employment Agreement is entered into and effective this 29th day
of
December 2006 between Axion Power International, Inc., a Delaware corporation,
having a place of business at 0000 Xxxxxx Xxxx, Xxx Xxxxxx Xxxxxxxxxxxx (the
“Company”) and Xxxxxx Xxxxx of New Castle, Pennsylvania, (the
“Executive”).
WHEREAS,
the
Company is engaged in the ongoing development of a novel technology for a
supercapacitor/battery hybrid that replaces the lead-based negative electrode
in
a lead-acid battery with a highly permeable nanoporous carbon electrode;
and
WHEREAS,
the
Company is desirous of making appropriate arrangements for the long term
management and continued development of its technology; and
WHEREAS,
the
Company is desirous of retaining the Executive to serve as its Vice President
and Chief Technology Officer on the conditions set forth herein for the entire
term of this Agreement, and
WHEREAS,
in such
capacity, the Executive will have access to all of the business methods and
confidential information relating to the Company and its business activities
including, but not limited to, its proprietary techniques and technologies,
its
operational and financial matters, its business and financial and development
plans, its personnel training and development programs and its industry
relationships.
NOW
THEREFORE,
in
consideration of the promises and of the mutual covenants and agreements
herein
contained, the parties hereto agree as follows:
1. Executive
Representations and Warranties.
The
Executive represents and warrants to the Company that he is free to accept
employment hereunder and that he has no prior or other obligations or
commitments of any kind to anyone that would in any way hinder or interfere
with
his acceptance of, or the full, uninhibited and faithful performance of this
Agreement, or the exercise of his best efforts as an officer of the
Company.
2. Employment
and Duties.
The
Company shall employ the Executive as its Vice President and Chief Technology
Officer, or such other comparable executive capacity as the Board of Directors
of the Company shall specify from time to time. The Executive will work from
the
Company's office in New Castle Pennsylvania. If an electrode manufacturing
plant
or corporate headquarters facility is established elsewhere in the Northeast
the
Executive will work from the newly established facility, provided that regular
travel to the Company’s New Castle facilities will be expected. The Executive’s
initial responsibilities shall include all of the duties and responsibilities
described below:
· |
Collaborate
with the Senior Management Team in the development of an overall
business
plan for Axion. This should include the development of operational
plans
and modifications to existing battery production lines to produce
Axion’s
e3
Supercell with minimal capital
expenditure.
|
· |
Work
to identify profitable product lines for value added lead-acid battery
products that will augment the lead acid battery products already
being
built at New Castle and,
|
· |
Develop
a commercialization strategy for Axion hybrid devices that includes
activated carbon supply, electrode production, negative electrode
assembly, and device assembly.
|
· |
Ensure
that proper testing, reports, product evaluation, and any other necessary
R&D activities are conducted effectively and
efficiently.
|
· |
Work
to assure that manufacturing operations achieve business plan goals.
This
cooperative endeavor includes ensuring all necessary functions are
planned
appropriately and are completed when
necessary.
|
· |
Write
and distribute to the BOD a monthly report outlining the key events
and
challenges that need to be overcome so that Axion can meet its established
goals. Include status with respect to goals; important test results;
product improvement opportunities; key commercialization status and
challenges; resource requirements; general organizational health,
and any
other key information that is deemed of interest to the
BOD.
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· |
Provide
coaching and training for all Axion employees to ensure Axion goals
are
achieved and that clear consistent communication is maintained at
all
times.
|
· |
Collaborate
with the Management Team to develop effective manufacturing processes
and
line extensions in support of new value-add lead-acid battery products
and
line extensions, assuring market feedback is incorporated into
all.
|
· |
Ensure
process quality and proper quality control measures are adopted for
all
product development and manufacturing
efforts.
|
· |
Support
fund raising activities whereever necessary.
|
· |
Support,
encourage, and lead intellectual property development within the
organization.
|
· |
Ensure
that all elements of a safety program are developed and ensure that
a safe
working environment is maintained for all employees at all
times.
|
In
addition, the Executive shall, perform such other mutually agreeable functions
and duties as the Board of Directors or chief executive officer may entrust,
delegate or assign to him from time to time.
3. Conduct
of Executive.
During
the entire Term of this Agreement, the Executive shall devote his full business
time, effort, skill and attention to the affairs of the Company and its
subsidiaries, will use his best efforts to promote the interests of the Company,
and will discharge his responsibilities in a diligent and faithful manner,
consistent with sound business practices. During the entire Term of this
Agreement, the Executive shall agree to serve as a member of the Company’s
Board
of
Directors if appointed to such position by the board of directors or elected
to
such position by the shareholders of the Company. In furtherance of the
foregoing:
(a) The
Executive understands and agrees that he owes the Company a fiduciary duty,
without limiting any other obligations or requirements that are imposed on
the
Executive by this Employment Agreement or by law. As such, the Executive
shall
occupy a position of and commit to the highest degree of trust, loyalty,
honesty
and good faith in all of his dealings with and on behalf of the
Company.
(b) The
Executive represents that his employment by the Company will not conflict
with
any obligations which he has to any other person, firm or entity. The Executive
specifically represents that he has not brought to the Company, and he will
not
bring to the Company, any materials or documents of a former or present
employer, or any confidential information or property of any other person,
firm
or entity.
(c) The
Executive shall not, without disclosure to and approval of the Board of
Directors of the Company, directly or indirectly, assist or have an active
interest in (whether as a principal, stockholder, lender, employee, officer,
director, partner, consultant or otherwise) in any person, firm, partnership,
association, corporation or business organization, entity or enterprise that
competes with or is engaged in a business which is substantially similar
to the
business of the Company except that ownership of not more than 1% of the
outstanding securities of any class of any publicly-held corporation shall
not
be deemed a violation of this sub-paragraph 3(c).
(d) The
Executive shall promptly disclose to the directors of the Company, in accordance
with the Company’s policies, full information concerning any interests, direct
or indirect, he holds (whether as a principal, stockholder, lender, Executive,
director, officer, partner, consultant or otherwise) in any business which,
as
reasonably known to the Executive purchases or provides services or products
to
the Company or any of its subsidiaries, provided that the Executive need
not
disclose any such interest resulting from ownership of not more than 1% of
the
outstanding securities of any class of any publicly-held
corporation.
(e) The
Executive shall not disclose to any person or entity (other than to the
Company’s Board of Directors or to others as required, in his judgment, in the
due performance of his duties under this Agreement) any confidential or secret
information with respect to the business or affairs of the Company or any
of its
subsidiaries or affiliates.
For
a
period of one year after termination for cause, the Executive shall not engage
in any business or activity that seeks to develop or commercialize a lead-acid
battery/supercapacitor hybrid device technology that would be directly
competitive with the business of the Company, including the activities described
above. Notwithstanding the generality of the foregoing, nothing in this
Agreement shall be deemed to preclude the Executive from participating in
other
business opportunities if and to the extent that (i) such business opportunities
are not directly competitive with the business of the Company, (ii) the
Executive’s activities with respect to such opportunities do not have a material
adverse
effect
on
the performance of the Executive’s duties hereunder, and (iii) the Executive’s
activities with respect to such opportunity have been fully disclosed in
writing
to the Company’s Board of Directors.
4. Conditions
of Employment.
(a) Term
of Employment.
Unless
terminated earlier in accordance with the provisions of this Agreement, the
Company agrees to employ the Executive for a four-year period commencing
on
December 30, 2006 and terminating on December 29, 2010 (the “Term”). On or
before September 30, 2010, the Company and the Executive shall open negotiations
for a mutually acceptable renewal contract. In the absence of a renewal
contract, this agreement shall be automatically renewed for an additional
two-year term.
(b) Place
of Employment.
The
Executive shall occupy offices at the Company’s New Castle facilities. The
Executive may be required to relocate from this business location should
a
carbon electrode or corporate headquarters facility be established at some
future time in the Northeastern United States. The Executive expressly agrees
that regular travel shall be necessary as part of his duties.
(c) Ownership
of Company Records and Reports.
The
Executive shall not, except in the performance of his duties hereunder, at
any
time or in any manner make or cause to be made any copies, pictures, duplicates,
facsimiles, or other reproductions or recordings or any abstracts or summaries
of any reports, studies, memoranda, correspondence, manuals, records, plans
or
other written or otherwise recorded materials of any kind whatever belonging
to
or in the possession of the Company, or of any subsidiary or affiliate of
the
Company, including but not limited to materials describing or in any way
relating to the Company’s business activities including, but not limited to, its
proprietary techniques and technologies, its operational and financial matters,
its business and financial and development plans, its personnel training
and
development programs and its industry relationships. The Executive shall
have no
right, title or interest in any such material, and the Executive agrees that,
except in the performance of his duties hereunder, he will not, without the
prior written consent of the Company remove any such material from any premises
of the Company, or any subsidiary or affiliate of the Company, and immediately
upon the termination of his employment for any reason whatsoever Executive
shall
return to the Company all such material in his possession.
(d) Company's
Trade Secrets.
Without
the prior written consent of the Company, the Executive shall not at any
time
(whether during or after his employment with the Company) use for his own
benefit or purposes or for the benefit or purposes of any other person, firm,
partnership, association, corporation or business organization, entity or
enterprise, or disclose in any manner to any person, firm, partnership
association, corporation or business organization, entity or enterprise,
except
in the performance of his duties hereunder, any trade secrets, or any
information data, know-how or knowledge constituting trade secrets belonging
to,
or relating to the affairs of the Company, or any subsidiary, former subsidiary,
or affiliate of the Company.
(e) Inventions,
Copyrights. Trademarks.
The
Executive shall promptly disclose to the Company (and to no one else) all
improvements, discoveries, ideas and inventions that
may
be of
significance to the Company, or any subsidiary or affiliate of the Company,
made
or conceived alone or in conjunction with others (whether or not patentable,
whether or not made or conceived at the request of or upon the suggestion
of the
Company or any subsidiary or affiliate of the Company during or out of his
usual
hours of work or in or about the premises of the Company or elsewhere) while
in
the employ of the Company or of any subsidiary or affiliate of the Company,
or
made or conceived within one year after the termination of his employment
by the
Company or of any subsidiary or affiliate of the Company if resulting from,
suggested by or relating to such employment. All such improvements, discoveries,
ideas and inventions shall be the sole and exclusive property of the Company
and
are hereby assigned to the Company. At the request of the Company and at
its
cost, the Executive shall assist the Company, or any person or persons from
time
to time designated by it, to obtain the copyright, trademark and/or grant
of
patents in the United States and/or in such other country or countries as
may be
designated by the Company, covering such improvements, discoveries, ideas
and
inventions and shall in connection therewith and in connection with the defense
of any patents execute such applications, statements or other documents,
furnish
such information and data and take all such other action (including, but
not
limited to, the giving of testimony) as the Company may from time to time
reasonably request.
5. Compensation.
The
Company shall compensate the Executive for all services to be rendered by
him
during the Term as follows:
(a) The
Executive shall receive a salary of $14,000 per month for services rendered
during the first year of its term. The increase in the Executive’s salary to
$14,000 per month shall be retroactive to October 1, 2006. The Executive’s
Salary shall be reviewed on a annual basis and subject to renegotiation based
on
the performance of the Executive and the Company.
(b) The
Executive shall participate in any executive compensation plans adopted by
the
shareholders of the Company; provided, however, that the discretionary authority
to determine the level of the Executive’s participation therein and the terms
and conditions of such participation shall remain vested in the Compensation
Committee of the Board of Directors and the Compensation Committee shall
have
the authority to adjust such participation upward or downward from time to
time
in its sole discretion.
(c) The
Executive shall participate, without cost to the Executive, in the Company's
standard employee benefit programs, including but not limited to medical
and
hospitalization insurance and group life insurance, as in effect from time
to
time. The Executive will be required to obtain Key Man Life Insurance. The
company will bear the full cost of this insurance policy.
(d) The
Executive shall be entitled to an automobile allowance of $500 per month,
plus
reimbursement at the maximum allowable rate under applicable income tax rules
for all reasonable business use of the automobile.
(e) During
the Term of this Agreement, the Company will reimburse the Executive for
all
reasonable business expenses incurred by him on behalf of the Company in
the
performance
of his duties hereunder upon presentation of vouchers, receipts or other
evidence of such expenses in accordance with the policies of the Company,
and
provided that the Executive shall incur no costs or expenses that exceed
two
thousand dollars without prior authorization of the Company.
(f) Notwithstanding
any other provision of this Agreement, it is agreed that the Executive shall
be
entitled to receive such incentive bonuses, stock options and other benefits
as
the Compensation Committee of the Board of Directors may grant from time
to
time.
(g) Notwithstanding
the general provisions of the Company’s Policy Manual relating to vacations, the
Executive shall be entitled to a total of four (4) weeks of paid vacation
per
year. Except for the 4-week time period herein specified, all other provisions
of the Policy Manual relating to vacation scheduling will be applicable to
vacation time allocated to the Executive hereunder.
6. Restricted
Stock Grant.
Simultaneously with the execution of this Agreement, the Executive shall
be
entitled to receive and the Company shall instruct its transfer agent to
issue
to the Executive 250,000 shares of the Company’s authorized and previously
unissued common stock (the “Grant Shares”) which shall, upon issuance, be
subject to all of the following terms and conditions:
(a) The
Grant
Shares shall be issued to the Executive under the Company’s Incentive Stock Plan
for the sole purpose of providing the Executive with a tangible incentive
to put
forth maximum efforts for the success of the Company and its business in
the
future. In the event that the Executive’s
employment with the Company is terminated by the Executive without cause
or by
the Company with cause prior
to the
third anniversary of the date of this Agreement, then all Grant Shares shall
be
immediately forfeit without further action by the Company or the
Executive.
(b) Absolute
and unrestricted ownership of the Grant Shares shall vest in the Executive
on
December 29, 2009. During the period between the issue date and the vesting
date, the Executive shall be entitled to receive any and all dividends or
other
distributions payable with respect to the grant shares and shall be entitled
to
exercise all voting and other shareholders rights with respect to such shares.
Executive shall not, however, be entitled to sell, transfer, hypothecate
or
otherwise encumber the grant shares until they are fully vested.
(c) Notwithstanding
the provisions of subparagraphs (a) and (b) absolute and unrestricted ownership
of all Grant Shares shall immediately vest in the Executive in the event
that
the Executive’s
employment with the Company is terminated by the Company without cause.
Furthermore, all unvested Grant Shares
shall
vest in the Executive immediately prior to the consummation of (i) any merger,
consolidation or similar business combination transaction where the Company
is
not the surviving entity, (ii) any sale of all or substantially all of the
Company’s assets where the proceeds are intended for distribution to the
stockholders, or (iii) any other transaction or series of transactions whereby
any person, entity or group acting in concert acquires direct or indirect
ownership of more than 20% of the Company’s outstanding voting
securities.
7. Grant
of Stock Purchase Option. The
Company acknowledges that the Executive has agreed to devote substantially
all
of his business time and effort to the Company during the entire Term of
this
Agreement. In recognition of the opportunity costs associated with such actions,
the Executive is hereby granted an option to purchase 100,000 shares of the
Company’s common stock at an exercise price of $3.75 (U.S.) per share. The
foregoing option shall vest proportionally at the end of the third and fourth
years of this contract. If the Executive's employment is terminated by the
Company without
cause
(as
defined in Section 8) or terminated by the Executive for good
reason
(as
defined in Section 8), all unvested options shall immediately vest and become
exercisable. In all other cases, all unvested options shall immediately
terminate. Notwithstanding the generality of the foregoing, rights represented
by vested options shall not be affected by the termination of the Executive’s
employment because of the disability or death of the Executive. From and
after
the vesting dates, the vested options may be exercised at any time or from
time
to time, in whole or in part, for a period of five years. The option agreement
attached hereto as “Exhibit A” shall be executed concurrently with this
agreement.
8. Termination
of Employment.
(a) This
Agreement and the compensation payable to Executive hereunder shall terminate
and cease to accrue forthwith upon Executive's death.
(b) If
the
Executive's employment is terminated (i) other than for
cause
(as
defined below) by the Company or (ii) by the Executive for good
reason
(as
defined below), the Company shall pay to Executive an aggregate severance
amount
equal to 50% of the Executive's annual base salary in effect as of the date
of
such termination (i.e.,
six
months' base salary and such amount being referred to as the "Severance
Amount").
The
Severance Amount may be paid in a single lump sum amount, provided that payment
of the Severance Amount shall be contingent upon the Executive signing a
suitable release and waiver agreement.
(c) For
the
purposes of this agreement, "cause"
for
termination by the Company shall exist upon (i) the conviction of the
Executive of, or the entry of a pleading of guilty or nolo contendere by
the
Executive to, any crime involving moral turpitude that may reasonably adversely
reflect on the Company or any felony; (ii) willful misconduct in connection
with the Executive's duties or willful failure to use reasonable effort to
perform substantially his responsibilities in the best interest of the Company,
provided that "willful
misconduct"
and
"willful
failure to perform"
shall
not include actions or inactions on the part of the Executive that were taken
or
not taken in good faith by the Executive; or (iii) fraud, material
dishonesty, or gross misconduct in connection with the Company perpetuated
by
the Executive.
(d) For
the
purposes of this agreement, "good
reason"
for
termination by the Executive shall exist upon (i) a material change in the
reporting responsibilities of the Executive to someone other than the Chief
Executive Officer or the Board; (ii) a substantial diminution of the
Executive's responsibilities; (iii) any reduction in the Executive's level
of compensation without the approval of the Executive; or (iv) a transfer
of the Executive's work location for purposes of performing his duties hereunder
to a location other than the Northeastern United States.
(e) At
the
end of the initial term of this agreement, the Executive’s employment may be
terminated by either party for any reason, or for no reason, upon written
notice
given not less than 90 days prior to of the termination date.
(f) The
Executive shall retain the right to voluntarily terminate his employment
hereunder at any time on 60 days’ written notice. Upon such a voluntary
termination of the employment relationship, all future compensation that
the
Executive is entitled to receive and all future benefits for which the Executive
is eligible shall cease and terminate as of the date of termination. The
Executive shall be entitled to pro rata salary through the date of such
termination, but the Executive shall not be entitled to any individual bonuses
or individual incentive compensation not yet paid at the date of such
termination.
(g) Notwithstanding
the termination of the Executive’s employment hereunder, the provisions of
Paragraphs 3, 6, 7, 8 and 9 shall survive such termination.
9. Specific
Performance.
If any
portion of this Agreement is found by a court of competent jurisdiction to
be
too broad to permit enforcement of such restriction to its full extent, then
such restriction shall be enforced to the maximum extent permitted by law,
and
the Executive hereby consents and agrees that such scope may be judicially
modified accordingly in any proceeding brought to enforce such restriction.
All
provisions of this Agreement are severable, and the unenforceability or
invalidity of any single provision hereof shall not affect any remaining
provision. The Executive acknowledges and agrees that the Company's remedy
at
law for any breach of any of his obligations hereunder would be inadequate,
and
agrees and consents that temporary and permanent injunctive relief may be
granted in any proceeding that may be brought to enforce any provision of
this
Agreement without the necessity of proof of actual damage and without any
bond
or other security being required. Such remedies shall not be exclusive and
shall
be in addition to any other remedy which the Company may have.
10. Miscellaneous.
(a) The
failure of a party to insist on any occasion upon strict adherence to any
Term
of this Agreement shall not be considered to be a waiver or deprive that
party
of the right thereafter to insist upon strict adherence to that Term or any
other Term of this Agreement. Any waiver must be in writing.
(b) All
notices and other communications under this Agreement shall be in writing
and
shall be delivered personally or mailed by registered mail, return receipt
requested, and shall be deemed given when so delivered or mailed, to a party
at
such address as a party may, from time to time, designate in writing to the
other party.
(c) This
Agreement shall be assigned to and inure to the benefit of, and be binding
upon,
any successor to substantially all of the assets and business of the Company
as
a going concern, whether by merger, consolidation, liquidation or sale of
substantially all of the assets of the Company or otherwise.
(d) This
Agreement constitutes the entire Agreement between the parties regarding
the
above matters, and each party acknowledges that there are no other written
or
verbal Agreements or understandings relating to such subject matter between
the
Executive and the Company or between the Executive and any other individuals
or
entities other than those set forth herein. No amendment to this Agreement
shall
be effective unless it is in writing and signed by both the parties
hereto.
(e) Paragraph
6 of this Agreement shall be construed in accordance with the General
Corporation Law of Delaware. All other provision of this Agreement shall
be
construed according to the laws of the Commonwealth of Pennsylvania pertaining
to Agreements formed and to be performed wholly within the State of
Pennsylvania. In the event action is brought to enforce any provisions of
this
Agreement, the prevailing party shall be entitled to reasonable legal fees
as
fixed by the court. The Executive represents and warrants that he has reviewed
this Agreement in detail with his legal and other advisors, as he considers
appropriate, and that he fully understands the consequences to him of its
provisions. The Executive is relying on his own judgment and the judgment
of his
advisors with respect to this Agreement.
(f) In
the
event a dispute arises out of, in connection with, or with respect to this
Agreement, or any breach thereof, such dispute shall, on the written request
of
one party delivered to the other party, be submitted to and settled by binding
arbitration before a single arbitrator conducted in New Castle, Pennsylvania.
The party against whom the arbitrator’s award is rendered shall pay all costs
and expenses of such arbitration, unless the arbitrator shall specifically
allocate costs in a different manner because the award is not entirely in
favor
of either party
(g) This
Agreement may be executed in any number of counterparts, which will each
be
deemed to be an original for all purposes hereof.
IN
WITNESS WHEREOF,
the
parties have signed this agreement intending to be bound thereby.
By:
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Axion
Power International, Inc
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Executive
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||
Xxxxxx
X. Xxxxxxxxx
|
Xxxxxx
Xxxxx
|
|||
Chief
executive officer
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NONQUALIFIED
STOCK OPTION AGREEMENT
(The
Options Represented Hereby Are Not Presently Exercisable)
THIS
OPTION AGREEMENT
(“Option
Agreement”) is dated and delivered effective as of December 30, 2006, in New
Castle, Pennsylvania between AXION
POWER INTERNATIONAL, INC.,
a
Delaware corporation (hereinafter called the “Company”) and Xxxxxx
Xxxxx
(hereinafter called “Optionee”):
R
E C I T A L S
The
Company and the Optionee have entered into an employment agreement that requires
the Company to grant the Optionee an option to purchase 100,000 shares of
the
Company’s common stock at a price of $3.75 per share as partial consideration
for the services to be rendered under the agreement.
The
Compensation Committee of the Board of Directors (the “Committee”) has
determined that it would be in the best interests of the Company and its
stockholders to grant the option provided for herein (the “Option”) as an
inducement to serve as an employee of the Company and to provide Optionee
with a
proprietary interest in the future of the Company;
NOW
THEREFORE,
in
consideration of the mutual covenants hereinafter set forth, the parties
hereto
agree as follows:
1. Grant
of the Option.
The
Company hereby grants to Optionee the right and option to purchase, on the
terms
and conditions hereinafter set forth, all or any part of an aggregate of
100,000
shares (the “Stock”) of the presently authorized but unissued common stock, par
value $.0001 per share, of the Company (the “Common Stock”). The purchase price
of the Stock subject to this Option shall be $3.75 per share.
2. Vesting
of the Option.
As long
as the Optionee remains an employee of the Company, the option granted hereby
shall vest at the rate of 50,000 shares per year commencing on December 29,
2009. If the Optionee’s employment is terminated by the Company
without
cause
or
terminated by the Optionee for good
reason,
all
unvested options shall immediately vest and become exercisable. In all other
cases, all unvested options shall immediately terminate. From and after the
vesting dates, the vested options may be exercised at any time or from time
to
time, in whole or in part, for a period of five years. Notwithstanding the
generality of the foregoing, rights represented by vested options shall not
be
affected by the termination of the Optionee’s employment because of the
disability or death of the Optionee
3. Exercise
of Option.
(a) Vested
Options may only be exercised by the Optionee who shall have the right to
exercise such Option in whole or in part, at any time or from time to time
during the period commencing on a vesting date and terminating on the sixth
anniversary of such vesting date. The
Option
is
not transferable or assignable by the Optionee other than by will, as a result
of the laws of descent and distribution or pursuant to a Qualified Domestic
Relations Order. If the Option is transferred by will, as a result of the
laws
of descent and distribution or pursuant to a Qualified Domestic Relations
Order,
the transferee shall have all of the rights, powers and privileges that the
Optionee would have had in the absence of such a transfer.
(b) This
Option may be exercised by written notice of intent to exercise the Option
delivered to the Company at its principal office no fewer than five days
in
advance of the effective date of the proposed exercise. Such notice shall
be
accompanied by this Agreement, shall specify the number of shares of Common
Stock with respect to which the Option is being exercised and shall specify
the
proposed effective date of such exercise. Such notice shall also be accompanied
by payment in full to the Company at its principal office of the option price
for the number of shares of the Common Stock with respect to which the Option
is
then being exercised. The payment of the option price shall be made in cash
or
by certified check, bank draft, or postal or express money order payable
to the
order of the Company or, with the consent of the Committee, in whole or in
part
in Common Stock which is owned by the Optionee and valued at its Fair Market
Value on the date of exercise. Any payment in shares of Common Stock shall
be
effected by delivery of such shares to the Secretary of the Company, duly
endorsed in blank or accompanied by stock powers duly executed in blank,
together with any other documents or evidence as the Secretary of the Company
shall require from time to time.
(c) Upon
the
Company’s determination that the Option has been validly exercised as to any of
the Stock, the Secretary of the Company shall issue a certificate or
certificates in the Optionee’s name for the number of shares set forth in his
written notice. However, the Company shall not be liable to the Optionee
for
damages relating to any delays in issuing the certificate(s) to him, any
loss of
the certificate(s), or any mistakes or errors in the issuance of the
certificate(s) or in the certificate(s) themselves.
3. Term
of Employment.
This
Option shall not grant to Optionee any right to continue serving as an employee
of the Company.
4. Notices;
Deliveries.
Any
notice or delivery required to be given under the terms of this Option Agreement
shall be addressed to the Company in care of its Secretary at its principal
office, 0000 Xxxxxx Xxxx, Xxx Xxxxxx, Xxxxxxxxxxxx, and any notice or delivery
to be given to Optionee shall be addressed to him at such address as the
Optionee may hereafter designate in writing. Any such notice or delivery
shall
be effective as of the date of receipt.
5. Disputes.
As a
condition of the granting of the Option hereby, the Optionee and his heirs
and
successors agree that any dispute or disagreement which may arise hereunder
shall be determined by the Committee in its sole discretion and judgment,
and
that any such determination and any interpretation by the Committee of the
terms
of this Option shall be final and shall be binding and conclusive, for all
purposes, upon the Company, Optionee, his heirs and personal
representatives.
6. Legend
on Certificates.
The
certificate(s) representing the shares of Stock purchased by exercise of
this
Option will be stamped or otherwise imprinted with a legend in such form
as the
Company or its counsel may require with respect to any applicable restrictions
on the sale or transfer
of
such
shares and the stock transfer records of the Company will reflect stop-transfer
instructions with respect to such shares.
7. Miscellaneous.
(a) All
decisions of the Committee upon any questions arising under the Plan or under
this Option Agreement shall be conclusive.
(b) Nothing
herein contained shall affect Optionee’s right to participate in and receive
benefits from and in accordance with the then current provisions of any pension,
insurance or other employee welfare plan or program of the Company.
(c) Optionee
agrees to make appropriate arrangements with the Company for satisfaction
of any
applicable federal, state or local income tax, withholding requirements or
like
requirements, including the payment to the Company at the time of exercise
of
the Option of all such taxes and requirements.
(d) Whenever
the term “Optionee” is used herein under circumstances applicable to any other
person or persons to whom this Option, in accordance with the provisions
hereof,
may be transferred, the word “Optionee” shall be deemed to include such person
or persons.
(e) Notwithstanding
any of the other provisions hereof, Optionee agrees that he will not exercise
this Option and that the Company will not be obligated to issue any of the
Stock
pursuant to this Option Agreement, if the exercise of the Option or the issuance
of such shares of Common Stock would constitute a violation by the Optionee
or
by the Company of any provision of any law or regulation of any governmental
authority or na-tional securities exchange. Upon the acquisition of any Stock
pursuant to the exercise of the Option herein granted, Optionee will enter
into
such written representations, warranties and agreements as the Company may
reasonably request in order to comply with applicable securities laws or
with
this Agreement.
(f) This
Agreement shall be binding upon and inure to the benefit of any successor
or
successors of the Company. The interpretation, performance and enforcement
of
this Option Agreement shall be governed by the laws of the State of Delaware.
IN
WITNESS WHEREOF, the Company has, as of the date and place first above written,
caused this Agreement to be executed on its behalf and the Optionee has hereunto
set his hand as of the date and place first above written, which date is
the
date of grant of this Option.
By:
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Axion
Power International, Inc
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Optionee
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Xxxxxx
X. Xxxxxxxxx
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Xxxxxx
Xxxxx
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Chief
executive officer
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