EXHIBIT 10.12
INDEPENDENT CONSULTING AGREEMENT
THIS INDEPENDENT CONSULTING AGREEMENT, made as of the "Effective Date", as
that term is defined in paragraph 13 hereinbelow, by and between Millennium Cell
Inc., a Delaware corporation with its principal place of business located at 1
Industrial Way West, Eatontown, New Jersey 07724 ("the Company"), and Reaction
Sciences, Inc., a New Jersey corporation with its principal place of business
located at 22 Lambert Johnson Drive, Ocean, New Jersey 07712 ("Independent
Consultant").
WHEREAS, the Company wishes to retain Independent Consultant to perform
certain consulting services for the Company on an independent contractor basis
pursuant to the terms and conditions set forth herein below, and Independent
Consultant wishes to perform certain consulting services for the Company on an
independent contractor basis; and
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other and additional consideration, the receipt and
legal sufficiency of which are hereby acknowledged by the parties hereto, the
parties do hereby agree as follows:
1. Term and Services. The Company agrees to retain Independent Consultant
as an independent contractor to perform such services to the Company as the
Company may from time to time reasonably request, and Independent Consultant
agrees to be retained in such capacity, on the following terms and conditions:
(a) Term of Agreement.
(1) The Company shall retain Independent Consultant under the terms of
this Agreement for the period beginning on the Effective Date, as that term is
defined in paragraph 13 hereinbelow, and ending on the earliest of the
following: (i) September 30, 2002, (ii) the date of death of Steven
C. Amendola ("Amendola"), Independent Consultant's president, (iii) the date on
which Amendola becomes disabled, (iv) the occurrence of bankruptcy or insolvency
of either party or of Amendola, (v) the date on which Amendola ceases to own at
least seventy-five percent of the outstanding shares of Independent Consultant,
(vi) the date on which Amendola ceases to be an employee of Independent
Consultant, or (vi) the date on which this Agreement is otherwise terminated
pursuant to the provisions of paragraph 12 hereinbelow. For purposes of this
Agreement, Amendola shall become "disabled" when he is unable by reason of
injury, sickness, or disease (requiring regular treatment by a physician) to
perform any duty required of Independent Consultant pursuant to this Agreement.
(2) Independent Consultant agrees and acknowledges that the Company has no
obligation to renew this Agreement, and that Independent Consultant is not
entitled to a renewal of this Agreement, following the expiration of this
Agreement on September 30, 2002 or following the termination of this Agreement
for any reason.
(b) Scope of Services. During the term of this Agreement, Independent
Consultant shall render to the Company, as an independent contractor, consulting
services related to the Company's Business, as that term is defined in paragraph
9(a) hereinbelow, including, without limitation, (i) providing scientific and
technological consulting services and engineering design and prototype services
to designated employees of the Company, to customers, suppliers and/or business
associates of the Company, (ii) training employees, customers, suppliers and/or
business associates of the Company with regard to the design and use of
alternative energy devices and systems, (iii) providing technical guidance to
laboratory, process demonstration units, pilot plant, and manufacturing programs
conducted in the Company's facilities or other facilities designated by the
Company, and
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(iv) assisting the Company in connection with any and all issues and/or
potential and actual disputes concerning the Company's rights to and interest in
its intellectual property and concerning actual or potential claims of other
persons or entities to the Company's intellectual property rights (the
"Services"). The Services that the Company assigns to Independent Consultant and
that Independent Consultant performs for the Company pursuant to this Agreement
shall be described in a logbook or similar document created jointly by the
parties and maintained by the Company's Vice President -- Product Development
(the "Company Logbook"). Independent Consultant shall approve each such
description of the Services by causing its president to affix his or her
signature in the Company Logbook directly below such description.
(c) Employment of Assistants. Independent Consultant may, at Independent
Consultant's own expense, employ such assistants as Independent Consultant deems
necessary to perform the Services. Independent Consultant assumes full and sole
responsibility for the payment of all compensation and expenses of these
assistants and for all federal, state and local income taxes, unemployment
insurance, workers' compensation insurance, disability insurance, social
security taxes, and other applicable withholdings.
(d) Time and Place of Providing Services.
(i) Independent Consultant shall devote eight hours per week to its
performance of the Services. Subject to the foregoing, as long as Independent
Consultant delivers acceptable Services to the Company in a timely fashion,
Independent Consultant shall generally have the discretion to determine the
times of rendering the Services as well as the method of accomplishing
Independent Consultant's Services, provided however, that the Company and
Independent Consultant shall endeavor to schedule Independent Consultant's
performance of the Services such that Independent
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Consultant may perform all of said eight hours per week during a single day.
Unless specifically requested in advance by the Company, Independent Consultant
shall perform the Services in locations other than the Company's premises.
(ii) Independent Consultant shall devote additional hours to the
performance of the Services pursuant to written authorization from the Company's
Vice President - Product Development. The Company's Vice President - Product
Development shall not authorize Independent Consultant to provide any Services
in excess of eight hours per week unless and until Independent Consultant has
previously submitted a written proposal, not to exceed five typewritten pages,
to the Company's Vice President - Product Development, describing the additional
Services that Independent Consultant wishes to provide to the Company. The
decision whether to authorize Independent Consultant to perform Services in
excess of eight hours per week shall be within the sole discretion of the
Company.
(e) Records and Reports. Independent Consultant shall keep complete and
systematic written records of all work relating to the performance of Services
by Independent Consultant hereunder and shall submit monthly invoices to the
Company for all Services rendered under this Agreement in accordance with
paragraph 3 hereinbelow.
(f) Equipment, Documentation and Specifications. Independent Consultant
shall supply all equipment and instruments required to perform the Services
under this Agreement, except when such equipment or supplies are unique and
available to the Company in which case the Company shall provide Independent
Consultant with such equipment, instruments, documentation and specifications as
may reasonably be required by Independent Consultant for performance by
Independent Consultant of the Services set forth herein. Any equipment,
instruments, documentation
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and specifications so provided to the Independent Consultant shall at all times
remain the property of the Company.
2. Conflicting Obligations. Subject to paragraphs 8, 9 and 10 hereinbelow,
Independent Consultant may, during the term of this Agreement, engage in other
businesses and perform services for its own account; provided however, that
Independent Consultant shall not engage in such businesses or perform such
services in such manner, or at such times, as may interfere with its obligation
to render the Services or perform its other obligations to the Company under
this Agreement, including, without limitation, its obligations under paragraphs
8, 9 or 10 hereinbelow. Independent Consultant confirms that Independent
Consultant and its employees have not executed nor are they bound by, or party
to, any non-compete covenant, restriction, or other agreement, contractual or
otherwise, with any prior or current employer, supplier, customer or firm with
which Independent Consultant or its employees have been associated or which
would prevent Independent Consultant or its employees from working with the
Company in the capacity as stated herein, or otherwise impede or restrict the
fulfillment of the terms of this Agreement with the Company.
3. Compensation. In consideration of Independent Consultant's performance
of the Services, the Company shall compensate Independent Consultant at the rate
of $125.00 per hour, payable monthly in arrears on the fifteen (15th) day of the
month following the month in which Independent Consultant provided the Services,
provided that Independent Consultant has previously submitted an invoice in form
and substance acceptable to the Company for such Services on or before the last
day of the month during which Independent Consultant provided the Services (the
"Monthly Consulting Fee"). Said invoices shall provide a detailed, typewritten
description, in "log" form, of the Services performed during each hour or
portion thereof, which description shall
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correspond to the actual time incurred in performing said Services. To the
extent that any such description of the Services relates to meetings or
conference attended by Independent Consultant or any of its employees, with
respect to each such meeting or conference, said description shall identify (i)
all attendees, (ii) its date, time and duration, (iii) its location and (iv) the
matters discussed or covered.
4. Relationship Of The Parties. Independent Consultant is, and is intended
to be, an independent contractor with respect to the Services to be performed by
Independent Consultant pursuant to this Agreement, and not an employee, agent,
representative, joint venturer or partner of the Company. Nothing in this
Agreement shall be interpreted or construed as creating or establishing (and the
parties hereto acknowledge the fact that) the relationship of employer and
employee between Company on the one hand and Independent Consultant or any
employees or agents of Independent Consultant on the other hand, for all
purposes, including, without limitation, for state or federal tax purposes.
Independent Consultant is obligated to report as income all income received by
Independent Consultant pursuant to this Agreement, and Independent Consultant
agrees to and acknowledges the obligation to pay all employment and other taxes
thereon, including applicable federal, state and local income taxes (as well as
penalties, interest or other assessments of any taxing authority), unemployment
insurance, workers' compensation insurance, disability insurance, social
security taxes, FICA, FUTA and other charges. Independent Consultant further
agrees to indemnify the Company and hold the Company harmless from any and all
claims made by any entity on account of an alleged failure by Independent
Consultant to satisfy such withholding or other obligation. Independent
Consultant agrees that any sums paid pursuant to this Agreement shall, for
purposes of federal, state, and local income taxes, be treated as compensation
for the performance of services
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rendered as an independent contractor and required to be performed by
Independent Consultant under this Agreement, and that neither Independent
Consultant nor its successors shall take any position inconsistent with such
treatment. Independent Consultant acknowledges and agrees that the Company shall
not provide retirement benefits, health insurance or any other fringe benefits
to Independent Consultant or to Independent Consultant's employees. It is
understood and agreed that this Agreement is not intended to, and shall not,
constitute any authority for Independent Consultant or any of its employees to
act in any manner as the Company's agent for any purpose whatsoever.
5. Right To Control Consulting Services. Other than as set forth below,
the Company shall have no right to direct or control the manner in which
Independent Consultant or any of its employees, including, without limitation,
Amendola, performs the Services under this Agreement. To the extent not
inconsistent with the terms set forth herein, the manner in which Independent
Consultant and its employees render Services to the Company pursuant to this
Agreement shall be within Independent Consultant's sole control and discretion.
6. Expenses. All administrative and entertainment expenses incurred by
Independent Consultant and its employees in the performance of Services pursuant
to this Agreement shall be the sole responsibility of Independent Consultant,
and the Company's only expense shall be the payment of the amounts specified in
paragraph 3 hereinabove. Notwithstanding anything to the contrary in this
paragraph 6, Independent Consultant shall be entitled to reimbursement for
reasonable travel, lodging or other out-of-pocket expenses incurred by it and
its employees in connection with the performance of the Services under this
Agreement, provided that, Independent Consultant and its employees obtain prior
approval in writing from the Company's President or Vice President - Finance and
Administration for any and all such anticipated expenses. Independent Consultant
shall
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not be entitled to reimbursement for any such expenses without submission to the
Company of any and all appropriate invoices and/or receipts evidencing in a form
satisfactory to the Company that Independent Consultant or its employees, in
fact, incurred such expenses.
7. Qualification For Position. Independent Contractor represents and
warrants that it and all of its employees possess the necessary skill, training
and experience to perform the Services under this Agreement in a professional
and competent manner. Independent Consultant also represents and warrants that
the Services to be performed by Independent Consultant hereunder shall be
performed in a professional and workmanlike manner in conformity with this
Agreement.
8. Confidential Information.
(a) Independent Consultant expressly acknowledges that, in the performance
of its Services under this Agreement, Independent Consultant and its employees
will be exposed to the trade secrets, business and/or financial secrets and
confidential and proprietary information of the Company, its predecessors its
affiliates, its joint venturers and/or its clients or customers ("Confidential
Information"). The term "Confidential Information" means, without limitation,
information or material that has actual or potential commercial value to the
Company, its affiliates, its joint venturers and/or its clients or customers and
is not generally known to and is not readily ascertainable by proper means to
persons outside the Company, its affiliates, its joint venturers and/or its
clients or customers. Except as authorized in writing by the Company's
President, during the term of this Agreement, and following the term of this
Agreement until such time as any such Confidential Information becomes generally
known to and readily ascertainable by proper means to persons outside the
Company, its affiliates, its joint venturers and/or its clients or customers,
Independent Consultant and its employees agree to keep strictly confidential and
not use for personal
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benefit or the benefit to any other person or entity (other than the Company)
the Confidential Information of the Company, its predecessors, its affiliates,
its joint venturers and/or its clients or customers, whether or not prepared or
developed by Independent Consultant or its employees. Confidential Information
includes, without limitation, the following, whether or not expressed in a
document or medium, regardless of the form in which it is communicated, and
whether or not marked "trade secret" or "confidential" or any similar legend:
(a) lists of and/or information concerning customers, clients, suppliers,
employees, consultants, and/or co-venturers of the Company, its predecessors,
its affiliates, its joint venturers and/or its clients or customers, or any such
prospective customers, clients, suppliers, employees, consultants and
co-venturers, (b) information submitted by customers, clients, suppliers,
employees, consultants and/ or co-venturers of the Company, its predecessors,
its affiliates, its joint venturers and/or its clients or customers, (c)
information concerning the business or prospective business of the Company, its
predecessors, its affiliates, its joint venturers and/or its clients or
customers, including, without limitation, cost information, technical
information, profits, sales information, prices, accounting, unpublished
financial information, business plans or proposals, markets and marketing
methods, advertising and marketing strategies, administrative procedures and
manuals, the terms and conditions of the Company's contracts and trademarks and
patents under consideration, distribution channels, franchises, investors,
sponsors and advertisers, (d) information concerning products and services of
the Company, its predecessors, its affiliates, its joint venturers and/or its
customers or clients, including, without limitation, product data and
specifications, diagrams, flow charts, know how, processes, designs, formulae,
inventions, patents, manufacture, actual or proposed applications, and product
development, (e) lists of and/or information concerning applicants, candidates
or other
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prospects for employment, independent contractor or consultant positions at or
with the Company, its predecessors, its affiliates, its joint venturers and/or
its clients or customers, or any actual or prospective customer of the Company,
its predecessors, its affiliates and/or its joint venturers, (f) any and all
confidential processes, inventions or methods of conducting business of the
Company, its predecessors, its affiliates, its joint venturers and/or its
clients or customers, (g) any and all versions of proprietary computer software
(including source and object code), hardware, firmware, code, discs, tapes, data
listings and documentation of the Company, its predecessors, its affiliates, its
joint venturers and/or its clients or customers, (h) any other information
disclosed to Independent Consultant or its employees by, or which Independent
Consultant or its employees obtained under a duty of confidence from, the
Company, its predecessors, its affiliates, its joint venturers and/or its
clients or customers, and (i) all other information not generally known to the
public which, if misused or disclosed, could reasonably be expected to adversely
affect the business or prospects of the Company, its predecessors, its
affiliates, its joint venturers and/or its clients or customers. The
determination of what constitutes Confidential Information is within the sole
discretion of the Company.
(b) Independent Consultant shall require all of its employees, including,
without limitation, Amendola, as a condition of employment with Independent
Consultant, to sign a Confidentiality, Non- Competition and Ownership of
Inventions Agreement in the form annexed hereto as Exhibit A. Independent
Consultant shall not assign any Services in connection with this Agreement or
disclose any Confidential Information to any of its employees, including,
without limitation, Amendola, prior to the delivery to the Company of such an
executed Confidentiality, Non-Competition and Ownership of Inventions Agreement,
and represents and warrants that, prior
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to the assignment of any Services in connection with this Agreement or
disclosure of any Confidential Information to any of its employees, including,
without limitation, Amendola, Independent Consultant shall have obtained from
each such employee and delivered to the Company an executed Confidentiality,
Non-Competition and Ownership of Inventions Agreement in the form annexed hereto
as Exhibit A. Independent Consultant further agrees to inform such employees or
authorized representatives of the confidential nature of Confidential
Information and agrees to take all necessary steps to ensure that the terms of
this Agreement and of the Confidentiality, Non-Competition and Ownership of
Inventions Agreement annexed hereto as Exhibit A are not violated by them.
(c) Independent Consultant acknowledges that Confidential Information or
other information disclosed in connection with Independent Consultant's Services
under this Agreement may be considered technical data that is subject to
compliance with the export control laws and regulations of the United States,
and hereby agrees to comply with such laws.
(d) Upon termination of this Agreement or upon request by the Company,
Independent Consultant shall deliver forthwith to the Company any and all
originals and copies of Confidential Information and Company property in its and
its employees' possession, custody or control. Independent Consultant shall
require all of its employees to execute and deliver to the Company the
Termination Certification attached hereto as Exhibit B.
9. Ownership of Inventions.
(a) Independent Consultant acknowledges that, in connection with the
Services provided by Independent Consultant and its employees under this
Agreement, Independent Consultant and its employees, may create, conceive of,
make, prepare, work on or contribute to the creation of, or may
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be asked by the Company, its affiliates, its joint venturers or its actual or
potential customers or clients to create, conceive of, make, prepare, work on or
contribute to the creation of, without limitation, lists, business diaries,
business address books, documentation, ideas, concepts, inventions, designs,
works of authorship, computer programs, audio/visual works, developments,
proposals, works for hire or other materials ("Contracted Inventions"). To the
extent that any Contracted Inventions relate or were related to the actual or
reasonably anticipated business of the Company, its predecessors, its
affiliates, its joint venturers and/or its clients or customers, or fall or fell
within, or are or were suggested by, or result or resulted from any tasks to be
performed by Independent Consultant or its employees under this Agreement for or
on behalf of the Company, its predecessors, its affiliates, its joint venturers
and/or its clients or customers (the "Company's Business"), in accordance with
the terms hereof, Independent Consultant expressly acknowledges that all of the
activities and efforts of Independent Consultant and its employees relating to
any Contracted Inventions, whether or not performed during the regular business
hours of either the Company, Independent Consultant or its employees, are within
the scope of Independent Consultant's scope of Services under this Agreement,
and that the Company owns all right, title and interest in and to all Contracted
Inventions, including, to the extent that they exist, all intellectual property
rights thereto, including, without limitation, copyrights, patents and
trademarks in and to all Contracted Inventions. Independent Consultant also
acknowledges and agrees that the Company owns and is entitled to sole ownership
of all rights and proceeds to all Contracted Inventions. For purposes of this
Agreement, the term "Company's Business" shall mean the development, licensing,
sale or distribution of technology, devices or systems related to alternative
energy chemistry.
(b) Independent Consultant expressly agrees to assign to the Company, and
hereby
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assigns to the Company, all right, title and interest in and to all Contracted
Inventions, including, to the extent they exist, all intellectual property
rights thereto, including, without limitation, copyrights, patents and
trademarks in and to all Contracted Inventions.
(c) Independent Consultant agrees to disclose any such Contracted
Inventions promptly to the Company, in writing, and to no other person or
entity. Independent Consultant further agrees to execute promptly, at the
Company's request, specific written assignments of any right, title and interest
in any Contracted Inventions and do anything else reasonably necessary to enable
the Company to secure or obtain a copyright, patent, trademark or other form of
protection in or for any Contracted Invention in the United States or other
countries. Independent Consultant further agrees that the Company is not
required to secure Independent Consultant's or its employees' permission to
change or otherwise alter any Contracted Invention.
(d) Independent Consultant acknowledges that all rights, waivers, releases
and/or assignments granted herein and made by Independent Consultant and/or its
employees are freely assignable by the Company and are made for the benefit of
the Company and its affiliates, subsidiaries, licensees, successors and assigns.
(e) Independent Consultant agrees to waive, and hereby does waive, for the
benefit of all persons, including its employees, any and all right, title and
interest in the nature of "moral rights" or "droit moral" granted to Independent
Consultant or its employees in any country in the world in connection with any
Contracted Inventions related to the Company's Business.
(f) Independent Consultant agrees that, if, in the course of performing
the Services, Independent Consultant or any of its employees incorporates into
any Contracted Invention any invention, improvement, development, concept,
discovery or other proprietary information owned
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by Independent Consultant or any of its employees or in which Independent
Consultant or any of its employees has an interest, (i) Independent Consultant
shall inform the Company, in writing, before incorporating such invention,
improvement, development, concept, discovery or other proprietary information
into any invention, and (ii) the Company is hereby granted and shall have a
nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make,
have made, modify, use and sell such item as part of or in connection with such
invention. Independent Consultant shall not incorporate any invention,
improvement, development, concept, discovery or other proprietary information
owned by any third party into any invention without the Company's prior written
permission.
10. Non-Competition.
(a) Independent Consultant hereby agrees and covenants to be bound by the
provisions of the non-competition restrictions set forth hereinbelow.
Independent Consultant acknowledges and agrees that, in consideration of the
non-competition restrictions set forth herein, the Company shall provide to
Independent Consultant and its employees, upon Independent Consultant's
execution of this Agreement and its employees' (including, without limitation,
Amendola's) execution of a Confidentiality, Non-Competition and Ownership of
Inventions Agreement in the form annexed hereto as Exhibit A, the Confidential
Information of the Company, its predecessors, its affiliates, its joint
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venturers and/or its clients and customers. Independent Consultant agrees and
acknowledges that the Confidential Information of the Company, its predecessors,
its affiliates, its joint venturers and/or its clients and customers that
Independent Consultant and its employees (including, without limitation,
Amendola) received prior to entering this Agreement and will receive in
connection with performing the Services under this Agreement is valuable to the
Company, its affiliates, its joint venturers and/or its clients or customers,
and that the protection and maintenance of such Confidential Information
constitutes a legitimate business interest of the Company, its affiliates, its
joint venturers and/or its clients or customers to be protected by the
non-competition restrictions set forth hereinbelow. Independent Consultant
agrees and acknowledges that the non-competition restrictions set forth
hereinbelow are reasonable and necessary and do not impose undue hardship or
burdens on Independent Consultant or its employees. Independent Consultant also
acknowledges and agrees that the Company's Business, as that term is defined in
paragraph 9(a) hereinabove, is or is intended to be conducted, developed,
provided, licensed and/or distributed to customers and clients throughout the
world ("the Geographic Boundary"), that the Geographic Boundary, scope of
prohibited competition, and time duration set forth in the non-competition
restrictions set forth hereinbelow are reasonable and necessary to maintain the
value of the Confidential Information of, and to protect the goodwill and other
legitimate business interests of, the Company, its affiliates, its joint
venturers and/or its clients or customers.
(b) Independent Consultant hereby agrees and covenants that Independent
Consultant and its employees shall not, directly or indirectly, in any capacity
whatsoever, including, without limitation, as an employee, employer, consultant,
employee of consultant, independent contractor, principal, partner, shareholder,
officer, director or any other individual or representative capacity or whether
on Independent Consultant's own behalf or on behalf of any other person or
entity or otherwise howsoever, during the term of this Agreement and for a
period of twelve (12) months after the expiration or termination of this
Agreement, in the Geographic Boundary:
(1) Engage, own, manage, operate, control, be employed by, participate in,
provide consulting services to, or be connected in any manner with the
ownership, management, operation
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or control of any business in competition with the Company's Business, as that
term is defined in paragraph 9(a) hereinabove ("Competitive Activity") and to
the extent that such Competitive Activity is described in the Company Logbook,
provided however, that nothing in this paragraph 10(b)(1) shall be construed to
preclude Independent Consultant from making any investments in the securities of
any competing enterprise, whether or not engaged in direct or indirect
competition with the Company, its affiliates, its joint venturers and/or its
clients or customers, to the extent that such securities are actively traded on
a national securities exchange or in the over-the-counter market in the United
States or on any foreign exchange and represent, at the time of acquisition, not
more than three (3) percent of the aggregate voting power of such business
enterprise..
(2) Directly or indirectly, recruit, induce, divert or solicit, or attempt
to recruit, induce, divert or solicit, any employee, consultant or independent
contractor of the Company, its affiliates and/or its joint venturers to leave
the employment or other relationship thereof, whether or not any such employee,
consultant or independent contractor is party to an employment or consulting
agreement.
(3) Directly or indirectly, contact, call on, induce, divert or solicit
any customer or client of the Company, its affiliates and/or its joint
venturers, or any business enjoyed by or solicited from clients or customers of
the Company, its affiliates and/or its joint venturers, with whom or with which
Independent Consultant or any of its employees was involved or had a
relationship during the term of this Agreement or during its, his or her
employment with the Company or any of its predecessors, for any purpose or
reason relating to the Company's Business.
11. Injunctive Relief. Notwithstanding paragraph 16(f) hereinabove,
Independent Consultant acknowledges that any breach of paragraphs 8, 9 or 10
hereinabove would constitute a
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material breach of this Agreement and will cause great or irreparable injury to
the Company for which pecuniary compensation would not afford adequate relief,
or it would be extremely difficult to ascertain the amount of the compensation
which would afford adequate relief. Therefore, in the event of an actual or
threatened breach of paragraphs 8, 9 or 10 of this Agreement, Independent
Consultant agrees that the Company has the right to seek and obtain equitable
relief, including injunctive relief and specific performance, in addition to any
other rights and remedies it may have. Nothing herein shall be construed as
prohibiting the Company from pursuing any other remedies available for such
actual or threatened breach, including the recovery of damages. For purposes of
this paragraph 11, any proceeding brought by the Company pursuant to this
paragraph 11 shall be brought exclusively in the federal or state courts located
in the State of New York, and the parties hereby expressly represent and agree
that they are subject to the personal jurisdiction of said courts, and each of
the parties hereby irrevocably consents to the jurisdiction of such courts in
any legal or equitable proceedings related to such dispute and waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have that the laying of the venue of any legal proceedings related to such
dispute which is brought in any such court is improper or that such proceedings
have been brought in an inconvenient forum.
12. Termination.
(a) The term of this Agreement shall be as set forth in paragraph 1(a)(1).
(b) Notwithstanding paragraph 12(a) hereinabove, both the Company and/or
Independent Consultant may terminate this Agreement as of any date without
"Cause" upon 90 days prior written notice.
(c) Notwithstanding paragraph 12(a) hereinabove, either party may
terminate this Agreement for "Cause", upon written notice to the other party,
effective immediately upon receipt
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of said written notice. For purposes of this Agreement, "Cause" shall mean: (i)
the unsatisfactory performance or non-performance of Services under this
Agreement by Independent Consultant or any of its employees, (ii) a material
breach of this Agreement by Independent Consultant or any of its employees,
(iii) a material breach of any of Independent Consultant's employees of his or
her Confidentiality, Non-Competition and Ownership of Inventions Agreement, (iv)
a change in the Company's business direction, or (v) a material breach of this
Agreement by the Company, including, without limitation, the Company's failure
to pay the Monthly Consulting Fee in accordance with paragraph 3 hereinabove.
(d) In the event that (i) this Agreement terminates by reason of
Amendola's death or disability, or by reason of the bankruptcy or insolvency of
either party or of Amendola, or by reason that Amendola ceases to own at least
seventy-five percent of the outstanding shares of Independent Consultant, or by
reason that Amendola ceases to be an employee of Independent Consultant, (ii)
the Company terminates this Agreement for "Cause," as that term is defined in
paragraph 12(c) hereinabove, or (iii) Independent Consultant terminates this
Agreement without "Cause", the obligations of each party hereunder (other than
Independent Consultant's and its employees' obligations under paragraphs 8, 9
and 10 hereinabove, which shall survive the termination of this Agreement, and
the Company's obligations under paragraph 3 hereinabove to pay compensation
earned through the date of termination), shall cease as of the date of such
termination.
(e) In the event that the Company terminates this Agreement without
"Cause," (i) Independent Consultant shall be entitled, at its option, to payment
of a pro-rata portion of the annualized Monthly Consulting Fee, either in a lump
sum or monthly in accordance with paragraph 3 hereinabove, for the lesser of (x)
a 90-day period in lieu of 90 days' notice, or (y) the remaining
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term of this Agreement, and (ii) Independent Consultant's obligations under
paragraph 10 hereinabove shall terminate as of the effective date of such
termination.
(f) Independent Consultant and its employees shall have no right to any
other or further payments or compensation under the terms of this Agreement
other than that set forth in this Agreement.
(g) Subject to paragraph 12(e) hereinabove, Independent Consultant agrees
that all obligations under paragraphs 8, 9 and 10 of this Agreement shall
continue in effect after termination of the Agreement, and that Independent
Consultant and its employees will notify all future clients, potential clients,
future employers and/or employers that Independent Consultant and its employees
remain subject to and bound by confidentiality obligations, ownership of
inventions agreements, and non-competition agreements. In the event that the
Company receives an inquiry from any such client, potential client, employer
and/or future employer of Independent Consultant or any of its employees, the
Company shall be entitled to communicate the substance of Independent
Consultant's and Independent Consultant's employees' obligations to any such
person or entity.
13. Effective Date. This Agreement shall become effective on the
"Effective Date", as that term is defined in para. 23 of that certain Separation
Agreement and Release In Full between Amendola and the Company dated as of "the
Effective Date" of said Separation Agreement and Release In Full (the
"Separation Agreement") (which Separation Agreement shall be executed
simultaneously with this Agreement), retroactive to October 1, 2001. The
following are conditions precedent to the effectiveness of this Agreement: (a)
Amendola's execution and delivery to the Company of the Separation Agreement,
(b) Amendola's non-revocation of the Separation Agreement pursuant to the
provisions of paragraph 14(f) thereof or in any other manner, and (c) Amendola's
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execution and delivery to the Company of a Confidentiality, Non-Competition and
Ownership of Inventions Agreement in the form annexed hereto as Exhibit A.
14. Representations and Warranties of Independent Consultant. Independent
Consultant represents and warrants that it is a corporation organized and in
good standing under the laws of the State of New Jersey; that the actions taken
by Independent Consultant in entering into this Agreement and the performance by
Independent Consultant under this Agreement, have been duly authorized; that the
Agreement is enforceable against Independent Consultant in accordance with its
terms; and that neither the execution of this Agreement, nor the performance of
this Agreement by Independent Consultant will violate the terms of any law
applicable to Independent Consultant. Independent Consultant further represents
and warrants that it has complied with, and is in compliance with, all
applicable federal, state, and local laws regarding business permits and
licenses that may be required to carry out Services to be performed under this
Agreement. Independent Consultant shall comply with all applicable laws or rules
of any public authority having jurisdiction in performing Independent
Consultant's Services under this Agreement. Independent Consultant shall also
observe the Company's rules and regulations with respect to conduct and the
safety and protection of persons and property while on Company premises.
15. No Delegation or Assignment. Independent Consultant's and its
employees' obligations under this Agreement may not be delegated, and
Independent Consultant and its employees may not assign, transfer, pledge,
encumber, hypothecate or otherwise dispose of this Agreement, or any rights
hereunder, and any attempted delegation or disposition shall be null and void
and without effect.
16. General Provisions.
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(a) Assignment; Binding Effect. This Agreement shall inure to the benefit
of and be binding upon any successor to all, or substantially all, of the
business or assets of the Company.
(b) Modification; Amendment; Waiver. No modification, amendment or waiver
of any provision of this Agreement shall be effective unless approved in writing
by both parties. The failure of either party at any time to enforce any of the
provisions of this Agreement shall not be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision hereof in accordance with its terms.
(c) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be held to be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement.
(d) Entire Agreement. This Agreement (and the exhibits hereto) and the
Separation Agreement are complete and set forth the entire understanding of the
parties regarding the subject matter thereof. All existing agreements,
contracts, or understandings between the parties hereto, whether oral or
written, relating to the subject matter of this Agreement, are hereby superseded
and rendered invalid by this Agreement, provided that, for as long as Amendola
shall remain a member of the board of directors of the Company, all policies and
procedures of the Company applicable to directors shall remain applicable to
him.
(e) Choice of Law. All questions concerning the construction, validity,
interpretation and enforcement of this Agreement shall be governed by the
internal laws of the State of New York without regard to its conflicts of laws
principles.
(f) Forum Selection and Jurisdiction. Subject to paragraph 11 hereinabove,
any and all disputes or controversies arising out of or relating to this
Agreement, including, without limitation,
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disputes or controversies concerning the construction, interpretation, breach or
enforcement of this Agreement, shall be settled by final and binding arbitration
to be held in the State of New York in accordance with the commercial rules then
in effect of the American Arbitration Association or any successor thereto. The
decision of the arbitrator(s) will be final, conclusive, and binding on the
parties to the arbitration. Judgment may be entered on the arbitrator's decision
in any court having jurisdiction, and the parties irrevocably consent to the
exclusive jurisdiction of the federal and state courts located in, State of New
York for this purpose, and each of the parties hereby irrevocably consents to
the exclusive jurisdiction of such courts in any legal or equitable proceedings
related to such dispute and waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have that the laying of the venue of any
legal proceedings related to such dispute which is brought in any such court is
improper or that such proceedings have been brought in an inconvenient forum.
(g) WHEREAS Clauses. The "WHEREAS" recitals are an integral part of this
Agreement, and are therefore incorporated herein as a part of this Agreement.
(h) Execution in Counterparts. This Agreement may be executed in
counterparts, each of which together constitute on and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement, at
Eatontown, New Jersey, on the day and year first above written.
REACTION SCIENCES, INC. MILLENNIUM CELL INC.
/s/ Steven C. Amendola /s/ Stephen S. Tang
By: ------------------------- By: ---------------------------------
Name: Steven C. Amendola Name: Stephen S. Tang
Title: President Title: President
Date: December 11, 2001 Date: December 11, 2001
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EXHIBIT A
CONFIDENTIALITY, NON-COMPETITION AND
OWNERSHIP OF INVENTIONS AGREEMENT
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EXHIBIT B
MILLENNIUM CELL INC.
CERTIFICATION OF RETURN OF COMPANY PROPERTY AND INFORMATION
This is to certify that I do not have in my possession, nor have I failed to
return, any Confidential Information, as that term is defined in paragraph 1(a)
of that certain Confidentiality, Non-Competition and Ownership of Inventions
Agreement dated as of _________, 200_ between Millennium Cell Inc. and me ("the
Agreement"), including, without limitation, devices, records, software, data,
notes, reports, proposals, lists, and sources of customers, lists of employees,
proposals to customers, drafts of proposals, business plans and projections,
reports, job notes, correspondence, specifications, drawings, blueprints,
sketches, materials, equipment, other documents or property, or reproductions of
any aforementioned items. I further certify that I have complied with all terms
of the Agreement, including the reporting of any inventions and original works
of authorship (as defined therein) conceived or made by me (solely or jointly
with others) covered by the Agreement. I further agree that, in compliance with
the Agreement, I will preserve as confidential, the Confidential Information, as
that term is defined in paragraph 1(a) of the Agreement.
Date: _______________________________ [NAME]
_______________________________
Signature
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