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EXHIBIT 10.6
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This Amended and Restated Employment Agreement ("Agreement") made and
entered into as of August 2, 2000, by and between MILLENNIUM CELL INC., a
Delaware corporation having a place of business at 0 Xxxxxxxxxx Xxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 ("Employer"), and XXXXXX X. XXXXXXXX, an individual
residing at 00 Xxxxxxx Xxxxxxx Xxxxx, Xxxxx, Xxx Xxxxxx 00000 ("Executive").
WHEREAS, Employer has been established to engage in the business of
developing a patented alternative energy source based on boron chemistry;
WHEREAS, Employer desires to employ Executive as its Executive Vice
President and Chief Technical Officer, and Executive is willing to be employed
in such capacity;
WHEREAS, Employer and Executive entered into an Employment Agreement
dated as of July 14, 2000; and
WHEREAS, Employer and Executive wish to amend and restate the
Employment Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants contained herein, it is agreed as follows:
1. EMPLOYMENT; DUTIES.
(a) Employer hereby agrees to employ Executive, and Executive
hereby agrees to accept employment during the term hereof, as Executive Vice
President and Chief Technical Officer, and shall perform such services in
accordance with the standards observed by senior executives in comparable
businesses, subject at all times to the direction of the Board of Directors of
Employer (the "Board").
(b) Executive agrees to serve on the Board on the
same terms and conditions as the other directors serving on the Board, except
that Executive shall receive no compensation for such service. Absent
Executive's gross negligence or willful misconduct, Employer agrees to
indemnify and hold Executives harmless, in accordance with Employer's bylaws and
on the same terms and conditions as the other directors serving on the Board,
with respect to any claims arising out of performance of Executive's duties as a
director or officer of Employer.
2. COMPENSATION.
(a) Base Salary. As consideration for all of the services
performed by
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Executive under this Agreement, Employer shall pay Executive, as an annual Base
Salary (defined below) payable in accordance with Employer's ordinary payroll
practices, the sum of two hundred thousand dollars ($200,000). Executive's Base
Salary shall be increased to two hundred and twenty-five thousand dollars
($225,000) upon the earlier occurrence of (i) the closing of the initial public
offering of Employer's common stock registered with the Securities and Exchange
Commission (the "IPO") or (ii) January 1, 2001. (The compensation specified in
this subsection (a), together with any increases in such compensation that the
Employer may grant from time to time, are referred to in this Agreement as "Base
Salary").
(b) Bonus. Executive will be eligible to earn a year-end cash
bonus in an amount equal to 50% of Executive's Base Salary for that year
("Bonus"). For the remainder of 2000 and 2001, 50% of the Bonus shall be
guaranteed and the remaining 50% shall be guaranteed upon the earlier occurrence
of (i) the IPO or (ii) January 1, 2001. The Bonus shall be payable in a lump sum
within 90 days of the end of the calendar year.
(c) Signing Bonus. As consideration for Executive entering
into this Agreement, Employer shall pay Executive upon the closing of the IPO
the sum of two hundred fifty thousand dollars ($250,000).
(d) Stock Options. Employer and Executive shall enter into a
Stock Option Agreement of even date herewith whereby Employer shall issue to
Executive options to purchase 1,006,643 shares of common stock of Employer with
an exercise price of $2.90 per share ("Options") pursuant to the terms of the
Millennium Cell 2000 Stock Option Plan. The Options will become exercisable in
three equal annual installments beginning on July 13, 2001 and will expire on
July 14, 2005.
(e) Effect of Termination.
A. The Employer may terminate Executive's employment
for Cause or without Cause. "Cause" shall mean only one or more of the following
occurrences: (a) Executive's conviction of a felony by a court of competent
jurisdiction (which conviction, through lapse of time or otherwise, is not
subject to appeal); (b) Executive's commission of an act of fraud or
embezzlement upon the Employer; (c) the material breach by Executive of Section
4 hereof; or (d) in the event of the willful malfeasance or gross negligence in
the performance of Executive's duties hereunder or the willful failure of
Executive to perform his duties hereunder, which malfeasance, negligence or
failure has a material adverse effect on the business of Employer and continues
for a period of fifteen (15) days after written notice is given to Executive
specifying such malfeasance, negligence or failure.
If the Employer terminates Executive's employment without "Cause," then:
(i) Executive shall receive a severance
payment equal to Executive's Base Salary plus Bonus at the time of his
termination; and
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(ii) Executive's Options shall vest as if
Executive were employed throughout the year of termination. Notwithstanding the
foregoing sentence, a minimum of 50% of Employee's Options shall vest. The
exercise period for Executive's Options shall be 1 year from the date of
termination without cause.
B. Anything to the contrary notwithstanding, this
Agreement shall terminate before the expiration of the term hereof in the event
of (i) Executive's death or (ii) at the discretion of the Employer, upon
Executive's "disability" (as defined below) for a period of 26 (twenty six)
consecutive weeks. For the purposes of this Agreement, "disability" shall mean
the incapacitation or disablement by accident, sickness or otherwise so as to
render Executive mentally or physically incapable of performing the services
required to be performed by him under this Agreement. If the Agreement is
terminated in accordance with this subsection B, the exercise period of
Executive's Options shall be 1 year from such termination.
(f) Tax Gross-Up. If any payment received by Executive under
this Agreement constitutes, in whole or in part, an "excess parachute payment"
under Section 280G of the Internal Revenue Code of 1986, as amended (the
"Code"), and Executive becomes liable for excise tax imposed under Section 4999
of the Code with respect to such payment, the Company shall pay Executive as
additional compensation an amount equal to the amount necessary to put Executive
on an after-tax basis (taking into account federal, state and local income
taxes) in the same position as if the excise tax had not been imposed.
3. NON-COMPETITION.
(a) Definitions. As used herein, the term "Competitive
Activities" means any attempt by Executive, directly or indirectly, for his own
account or as an employee, officer, director, partner, joint venturer,
shareholder, investor (except that Executive may purchase up to five percent of
the outstanding capital stock of any publicly-traded corporation) or otherwise
to engage or participate in the business of developing an alternative energy
source based on boron chemistry, including hydrogen generation, for use, without
limitation, in fuel cells, batteries or automotive engines, in any area. As used
herein, the term "Client Solicitation" means any attempt by Executive, directly
or indirectly, for his own account or as an employee, officer, director,
partner, joint venturer, shareholder, investor of otherwise to interfere with,
disrupt, or attempt to disrupt, any past, present or prospective relationship,
contractual or otherwise, between Employer and any client, customer, vendor or
supplier of Employer. As used herein, the term "Employee Solicitation" means any
attempt by Executive, directly or indirectly, for his own account or as an
employee, officer, director, partner, joint venturer, shareholder, investor or
otherwise to employ or solicit the employment or engagement by others of any
employee of Employer who was an employee as of the date of the termination of
this Agreement or within six (6) months prior thereto.
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(b) Non-competition. During the term of this Agreement and for
1 year following the termination of employment, Executive will not engage in any
Competitive Activities, Client Solicitation or Employee Solicitation.
4. CONFIDENTIALITY. During the term of this Agreement and thereafter,
Executive agrees to hold in strictest confidence, and not to use, except for the
benefit of Employer, or to disclose to any person, firm or corporation, without
the prior written authorization of the Board, any trade secrets, confidential
knowledge, data or other proprietary information of Employer.
5. NOTICES. All notices hereunder shall be in writing and shall be
delivered in person or given by registered or certified mail, postage prepaid,
and sent to the parties at the respective addresses above set forth. Either
party may designate any other address to which notice shall be given by giving
notice to the other of such change of address in the manner herein provided.
6. SEVERABILITY OF PROVISIONS. If any provision of this Agreement
shall be declared by a court of competent jurisdiction to be invalid, illegal or
incapable of being enforced in whole or in part, the remaining conditions and
provisions or portions thereof shall nevertheless remain in full force and
effect and enforceable to the extent they are valid, legal and enforceable, and
no provision shall be deemed dependent upon any other covenant or provision
unless so expressed herein.
7. GOVERNING LAW. This Agreement shall be construed and governed by
the internal laws of the State of New York.
8. NON-WAIVER. The failure of either party to insist upon the strict
performance of any term or condition in this Agreement shall not be considered a
waiver or relinquishment of future compliance therewith.
9. ATTORNEY'S FEES. In the event of a dispute arising hereunder, each
party shall bear its own fees and expenses (including legal fees and expenses).
10. ENTIRE AGREEMENT; MODIFICATION. This Agreement contains the entire
agreement between the parties relating to the subject matter hereof. No
modification of this Agreement shall be valid unless it is made in writing and
signed by the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.
MILLENNIUM CELL, INC.
By:
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Xxxxxxx X. Xxxx
President and Chief Executive Officer
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XXXXXX X. XXXXXXXX
