Exhibit 10.2
RESTRICTED STOCK GRANT AGREEMENT (this "Agreement")
dated as of July 14, 2004 (the "Effective Date"), between
MILLENNIUM CELL INC., a Delaware corporation (the "Company"),
and H. DAVID RAMM, an individual residing at 35 West Terrace
Drive, Houston, Texas 77007-7040 ("Grantee").
WHEREAS, Grantee and the Company are parties to that certain
Employment Agreement dated as of the date hereof (the "Employment Agreement");
WHEREAS, the Company recognizes the contributions that Grantee
will make to the Company's development in his role as President and Chief
Executive Officer of the Company; and
WHEREAS, in order to reward Grantee for his efforts, the
Company has agreed, pursuant to the Employment Agreement, to grant to Grantee
one hundred thousand (100,000) restricted shares (the "Restricted Shares") of
the common stock, par value $.001 per share, of the Company (the "Common
Stock"), subject to the terms, conditions and restrictions set forth in this
Agreement and in the Employment Agreement.
NOW, THEREFORE, in consideration of the above premises and the
mutual covenants set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. Grant of Restricted Shares. Subject to the terms,
conditions and restrictions set forth in this Agreement and in the Employment
Agreement, the Company hereby grants to Grantee one hundred thousand (100,000)
Restricted Shares of Common Stock.
2. Vesting Schedule. The Restricted Shares awarded to Grantee
shall vest in full on September 18, 2004, or, if earlier, upon the termination
of Grantee's employment with the Company for any reason (including, but not
limited to, for death or disability) other than a termination by the Company for
Cause or Grantee's resignation of employment. For purposes of this Agreement,
Grantee may be terminated for cause if Grantee: (i) is convicted of, or pleads
guilty or nolo contendere, to a felony or (ii) engages in willful gross neglect
or willful gross misconduct in carrying out his duties under the Employment
Agreement, resulting, in either case, in material economic harm to the Company.
3. Restrictions on Transfer. Grantee agrees that, in addition
to any restrictions on transfer that may be imposed under applicable state and
federal securities laws, the Restricted Shares shall be subject to the following
restrictions on transfer:
(a) Grantee shall not, without the prior written consent of
the Company, offer, transfer, sell, pledge, assign, hypothecate or otherwise
encumber or dispose of any unvested Restricted Shares.
(b) Any attempted assignment, transfer, pledge, hypothecation
or other disposition of the Restricted Shares contrary to the provisions hereof,
and the levy of any execution, attachment or similar process upon the Restricted
Shares, shall be null and void and without any force or effect.
4. Cancellation of Restricted Shares. Upon a termination of
the Employment Agreement by the Company for Cause or the resignation of
employment by Grantee, any unvested Restricted Shares shall automatically be
cancelled without any further action on behalf of the Company or Grantee.
5. Dividends. If and when the Company shall declare any
dividend or distribution on the Common Stock, Grantee shall be entitled to
receive all cash, securities, proceeds or assets of any kind in connection with
such dividend or distribution with respect to his vested and unvested Restricted
Shares, if any.
6. Stock Certificates.
(a) Custody of Certificates. The Company shall hold the
certificate(s) evidencing the Restricted Shares in its custody until they have
vested, and as a condition to the granting of the Restricted Shares, Grantee
shall deliver a stock power, substantially in the form attached hereto as
Exhibit A-1, endorsed in blank, relating to the Restricted Shares.
(b) Stock Legends. The share certificates evidencing the
Restricted Shares, both prior to and after the vesting thereof, shall have
endorsed upon them in bold-faced type the following legends (in addition to any
legend(s) required under applicable state or federal securities laws):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND CANCELLATION AS SET FORTH IN A
RESTRICTED STOCK GRANT AGREEMENT DATED AS OF July 14, 2004, BETWEEN
MILLENIUM CELL INC. (THE "CORPORATION"), AND THE SHAREHOLDER, A COPY OF
WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION.
7. Representations and Warranties. Grantee represents to the
Company that:
(a) Grantee has relied solely upon the information, if any, requested of the
Company and upon his own due diligence in making the decision to acquire the
Restricted Shares. To the extent necessary, Grantee has retained, at his own
expense, and relied upon the advice of, appropriate professionals regarding the
investment, tax and legal merits and consequences of the purchase of the
Restricted Shares.
(b) Grantee acknowledges that the Restricted Shares have been registered under
the Act on a Registration Statement on Form S-8, and accordingly, subject to the
terms, conditions and limitations of this Agreement, the Restricted Shares may
only be transferred or otherwise disposed of pursuant to (i) such Form S-8 upon
delivery of a resale prospectus to the recipient of the Restricted Shares, as
long as Grantee is an affiliate of the Company, and (ii) an effective
registration statement under the Act or (iii) pursuant to an exemption from
registration under the Act.
(c) Grantee acknowledges that the transfer of the Restricted Shares is
restricted by the terms of this Agreement, and Grantee must therefore hold the
Restricted Shares indefinitely unless a subsequent disposition of the Restricted
Shares is permitted under the terms of this Agreement.
(d) Grantee acknowledges that, given the restrictions on transfer acknowledged
above, he is able to bear the economic risk of holding the Restricted Shares for
an indefinite period of time and can afford a complete loss of the value of the
Restricted Shares.
(e) Grantee agrees and acknowledges that the Company may, if it so desires and
subject to Section 3, permit the transfer of the Restricted Shares out of
Grantee's name only when Grantee's request for transfer is accompanied by an
opinion of counsel reasonably satisfactory to the Company and its counsel that
neither the sale nor the proposed transfer results in a violation of the Act or
any state securities or "blue sky" laws (collectively, "Securities Laws").
Grantee agrees to hold the Company and its directors, officers, agents and
controlling persons and their respective heirs, representatives, successors and
assigns harmless and to indemnify them from and against all liabilities, costs
and expenses incurred by them as a result of any misrepresentation made by
Grantee contained herein or any sale or distribution by Grantee in violation of
the Securities Laws.
(f) Grantee represents that the receipt of the Restricted Shares by Grantee will
not result in the violation by Grantee of any law, statute, rule, regulation,
order, writ, injunction, judgment or decree of any court or governmental
authority to or by which Grantee is bound, including, without limitation, United
States laws and other laws that may be applicable to Grantee and will not
conflict with, or result in a material breach or violation of, any of the terms
or provisions of, or constitute (with due notice or lapse of time or both) a
material default under, any material lease, loan agreement, mortgage, security
agreement, trust indenture or other agreement or instrument to which Grantee is
a party or by which Grantee is bound or to which Grantee's material properties
or assets is subject, nor result in the creation or imposition of any lien upon
any of the material properties or assets of Grantee.
(g) Grantee acknowledges and agrees that this Agreement is not a contract of
employment and that nothing in this Agreement shall confer upon Grantee any
right with respect to continuation of service to or employment by the Company,
nor shall it interfere in any way with his right or the Company's right to
terminate his service to or employment by the Company at any time, with or
without cause.
(h) Grantee hereby accepts this Agreement subject to all of the terms and
provisions hereof. Grantee has reviewed this Agreement in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this
Agreement, and fully understands all provisions of this Agreement.
(i) Grantee acknowledges that the Company and its counsel are entitled to rely
on the representations made above.
8. Tax and Financial Consequences. Grantee has reviewed with
Grantee's own tax and financial advisors the federal, state, local and foreign
tax consequences of this Agreement. Grantee is relying solely on such advisors
and not on any statements or representations of the Company or any of its
agents. Grantee understands that Grantee (and not the Company) shall be
responsible for Grantee's own tax liability that may arise as result of the
transactions contemplated by this Agreement. Grantee understands that Section 83
of the Internal Revenue Code of 1986, as amended from time to time (the "Code"),
taxes as ordinary income the fair market value, as defined by the Code, of the
Restricted Shares as of the date they become "substantially vested" within the
meaning of Section 1.83-3(b) of the regulations promulgated pursuant to Section
83 of the Code. Grantee understands that Grantee may elect to be taxed at the
time the Restricted Shares are granted, rather than at the time, if any, that
they become substantially vested, by filing an election under Section 83(b) of
the Code with the Internal Revenue Service within 30 days from the date of
grant.
GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE'S SOLE RESPONSIBILITY
AND NOT THE COMPANY'S TO FILE A TIMELY ELECTION UNDER CODE SECTION 83(b), EVEN
IF GRANTEE REQUESTS THE COMPANY, OR ITS REPRESENTATIVES, TO MAKE THIS FILING ON
GRANTEE'S BEHALF.
9. Consent of Spouse. As a further condition to the Company's
obligations under this Agreement, the Company may require the spouse of Grantee,
if any, to execute and deliver to the Company the Consent of Spouse attached
hereto as Exhibit A-2.
10. Notices. Any notice required to be given or delivered to
the Company under the terms of this Agreement shall be in writing and addressed
to the Company at 1 Industrial Way West, Eatontown, New Jersey [GRAPHIC
OMITTED]07724, Fax: 732-542-4010, Attention: Chairman of the Board, or to such
other address as shall be provided in writing to Grantee. Any notice required to
be given or delivered to Grantee shall be in writing and addressed to the most
recent address of Grantee, as set forth in the books and records of the Company.
All notices shall be deemed effective upon personal delivery against receipt
therefor; one day after being sent by Federal Express or similar overnight
delivery; or three days after being mailed registered or certified mail, postage
prepaid, and properly addressed to the party to be notified.
11. Entire Agreement. This Agreement and the Employment
Agreement contain the entire understanding between the parties concerning the
subject matter contained in herein and therein. There are no representations,
agreements, arrangements or understandings, oral or written, between the parties
hereto, relating to the subject matter of this Agreement and the Employment
Agreement, that are not fully expressed herein or therein.
12. Counterparts. This Agreement may be signed in one or more
counterparts, all of which shall be considered one and the same agreement.
13. Further Assurances. Each party to this Agreement agrees to
perform all further acts and to execute and deliver all further documents as may
be reasonably necessary to carry out the intent of this Agreement.
14. Severability. If any provision of this Agreement or any
other agreement or document delivered in connection with this Agreement, if any,
are held to be partially or completely invalid or unenforceable in any
jurisdiction, then such unenforceable provisions shall be automatically replaced
by a provision as similar in terms as may be valid and enforceable in that
jurisdiction, but the invalidity or unenforceability of that provision shall not
affect the validity or enforceability of any other provision of this Agreement,
all of which shall be construed and enforced as if that invalid or unenforceable
provision were omitted, nor shall the invalidity or unenforceability of that
provision in one jurisdiction affect its validity or enforceability in any other
jurisdiction.
15. Construction. Whenever used in this Agreement, the
singular number will include the plural, and the plural number will include the
singular, and the masculine or neuter gender shall include the masculine,
feminine or neuter gender. The headings of the Sections of this Agreement have
been inserted for purposes of convenience and shall not be used for interpretive
purposes.
16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of laws principles of such State.
17. Submission to Jurisdiction. Any and all suits, legal
actions or proceedings against any party hereto arising out of this Agreement
shall be brought in any United States federal court sitting in the State of New
York or any other court of appropriate jurisdiction sitting in the State of New
York, as the party bringing such suit may elect in its sole discretion, and each
party hereby submits to and accepts the exclusive jurisdiction of such courts
for the purpose of such suit, legal action or proceeding, each party hereto
waives personal service of any summons, complaint or other process and agrees
that service thereof may be made by certified or registered mail. Each party
hereto hereby irrevocably waives any objection which it may now hereafter have
to the laying of venue of such suit, legal action or proceeding in any such
court and hereby further waives any claim that any such suit, legal action or
proceeding brought in any such court has been brought in an inconvenient forum.
18. Successors. The rights and obligations of the Company
under this Agreement shall be transferable to any successor thereto. The rights
and obligations of Grantee under this Agreement may only be assigned with the
prior written consent of the Company.
19. Amendment. This Agreement may only be amended by the
written consent of the parties to this Agreement at the time of such amendment.
20. No Waiver. Either party's failure to enforce any of the
provisions of this Agreement shall not in any way be construed as a waiver of
any such provision, nor prevent that party from thereafter enforcing any other
provision of this Agreement. The rights granted both parties hereunder are
cumulative and shall not constitute a waiver of either party's right to assert
any other available legal remedy.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first set forth above.
MILLENNIUM CELL INC.
By: /s/G. Chris Andersen
----------------------------------------
Name: G. Chris Andersen
Title: Chairman of the Board
/s/H. David Ramm
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H. David Ramm
EXHIBIT A-1
STOCK POWER
ASSIGNMENT SEPARATE
FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________, one hundred thousand (100,000) restricted shares of
Common Stock of MILLENIUM CELL INC. standing in the undersigned's name on the
books of said Company, represented by the within Certificate No. ___, and hereby
irrevocably constitutes and appoints _______________________ attorney to
transfer the said shares on the books of the within named Company with full
power of substitution in the premises.
Dated: __________________, 2004
-----------------------------
H. David Ramm
EXHIBIT A-2
CONSENT OF SPOUSE
I, _____________________, spouse of H. David Ramm, have read
and approve the foregoing Restricted Stock Grant Agreement (the "Agreement"). In
consideration of the grant by Millennium Cell Inc. (the "Company"), to my spouse
of the restricted shares (the "Restricted Shares") of common stock, par value
$.001 per share, of the Company, as set forth in the Agreement, I hereby appoint
my spouse as my attorney-in-fact in respect to the exercise of any right under
the Agreement and agree to be bound by the provisions of the Agreement insofar
as I may have any rights in said Agreement or the Restricted Shares issued
pursuant thereto under the community property laws or similar laws relating to
marital property in effect in the state of our residence as of the date of the
signing of the Agreement.
Dated: ________________, 2004
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Signature of Spouse