Exhibit
10.4
TARGET TERMINATION
AGREEMENT
This Target Termination Agreement (this
Agreement ”) is entered into as of December 29, 2006
by and among Millennium Cell Inc., a Delaware corporation (“
MCEL ”), Gecko Energy Technologies, Inc., a Delaware
corporation (“ Gecko ”), Ronald J. Kelley, an
individual residing in the State of New Jersey (“ RJK
”), and Steven D. Pratt, an individual residing in the State
of New Jersey (“ SDP ”). Each of MCEL, Gecko,
RJK and SDP is referred to herein as a “ Party ”
and, collectively, the “ Parties .”
R E C I T A L S:
A. MCEL and Gecko are parties to that certain
Joint Development Agreement, dated as of February 15, 2006 (the
“ JDA ”), whereby MCEL and Gecko agreed to
jointly develop planar fuel cell products and systems;
B. In connection with the JDA, on February 15,
2006, MCEL and Gecko entered into a Stock Purchase Agreement (the
“ SPA ”), whereby Gecko agreed to sell to MCEL
and MCEL agreed to purchase from Gecko, shares of Gecko’s
common stock, no par value per share (“ Gecko Common
Stock ”);
C. In connection with the SPA, on February 15,
2006, MCEL, Gecko, RJK and SDP entered into a Stockholders
Agreement (the “ SA ”) relating to the voting
and transfer of Gecko Common Stock;
D. On the date hereof, MCEL, M.C.E. Venture,
L.L.C., a Delaware limited liability company and a wholly-owned
subsidiary of MCEL (“ Merger Sub ”), and Gecko,
RJK and SDP have entered into an Agreement and Plan of Merger (the
“ Merger Agreement ”), whereby MCEL will acquire
Gecko in a merger of Gecko with and into Merger Sub (the “
Merger ”);
E. Effective as of the effective time of the
Merger (the “ Effective Time ”) and subject to
the terms set forth herein, each of MCEL and Gecko desire to
terminate each of the JDA and the SPA; and
F. Effective as of the Effective Time and subject
to the terms set forth herein, each of MCEL, Gecko, RJK and SDP
desire to terminate the SA.
NOW, THEREFORE, the Parties hereby agree as
follows:
1. Terminations .
(a) MCEL and Gecko hereby agree that as of the
Effective Time, each of the JDA and the SPA shall be terminated and
of no further force or effect. For the avoidance of doubt, MCEL and
Gecko hereby acknowledge and agree to terminate all provisions of
the JDA and the SPA, including those provisions which, by the terms
of the JDA and/or the SPA, would otherwise survive a termination of
the JDA, in each case in a manner such that, as of the Effective
Time, neither MCEL nor Gecko shall have any rights or obligations
whatsoever under the JDA.
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