VOTING AGREEMENT
VOTING
AGREEMENT, dated as of April 25, 2005 (this "
Agreement "),
by and among Millennium Cell Inc., a Delaware corporation, with
headquarters located at One Industrial Way West, Eatontown, New
Jersey 07724 (the "
Company "),
and ___________ (the "
Stockholder ").
WHERE
AS,
the Company and certain investors (each, a "
Buyer ",
and collectively, the "
Buyers ")
have entered into a Securities Purchase Agreement, dated as of the
date hereof (the "
Securities Purchase Agreement "),
pursuant to which, among other things, the Company has agreed to
issue and sell to the Buyers and the Buyers have, severally but not
jointly, agreed to purchase (i) shares of the Company's Series C
Convertible Preferred Stock, par value $.001 per share (the
"
Preferred Shares "),
which will, among other things, be convertible into the Company's
common stock, $.001 par value per share (the "
Common Stock ")
and (ii) warrants ("
Warrants ")
to purchase shares of Common Stock. Capitalized terms used and not
otherwise defined herein shall have the meanings assigned to such
terms in the Securities Purchase Agreement.
WHEREAS,
as of the date hereof, (i) the Stockholder owns the number of
shares of Common Stock set forth below such
Stockholder’s name on the signature page hereto and
(ii) the Stockholder owns options (the "
Options ")
to purchase the number of shares of Common Stock set forth below
such Stockholder’s name on the signature page hereto (the
"
Option Shares ").
WHEREAS,
as a condition to the obligation of the Buyers to enter into
the Securities Purchase Agreement and to consummate the
transactions contemplated thereby (collectively, the "
Transaction "),
the Buyers have required that the Stockholder agree, and in order
to induce the Buyers to enter into the Securities Purchase
Agreement, the Stockholder has agreed, to enter into this Agreement
with respect to all the Common Stock now owned and which may
hereafter be acquired by the Stockholder (including, without
limitation, the Option Shares acquired upon exercise of the
Options, and any other securities, if any, which Stockholder is
currently entitled to vote, or after the date hereof becomes
entitled to vote, at any meeting of the stockholders of the
Company (the
"
Other Securities ")
).
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be
legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE
I
VOTING AGREEMENT OF THE STOCKHOLDER
SECTION
1.01.
Voting Agreement .
The Stockholder hereby agrees that at any special or annual meeting
of the stockholders of the Company, however called, and in any
action by written consent of the Company’s stockholders, in
each case for the purpose of considering and approving the
Company's issuance of all of the shares of Common Stock issued and
issuable upon conversion of the Preferred Shares and exercise of
the Warrants and as otherwise described in the Transaction
Documents in accordance with applicable law and the rules and
regulations of the Principal Market (the "
Stockholder Approval "),
the Stockholder shall vote the Common Stock owned by the
Stockholder, any Option Shares (to the extent any Options have been
exercised) and any Other Securities in favor of the Stockholder
Approval. The obligations of the Stockholder under this Section
1.01 shall terminate immediately following the occurrence of the
Stockholder Approval.
ARTICLE
II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The
Stockholder hereby represents and warrants to the Company and
each of the Buyers as follows:
SECTION
2.01.
Authority Relative to this Agreement .
The Stockholder has the capacity to execute and deliver this
Agreement, to perform his obligations hereunder and to consummate
the transactions contemplated hereby. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a legal,
valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms, except (a) as
such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or
similar laws now or hereafter in effect relating to, or affecting
generally, the enforcement of creditors’ and other
obligees’ rights and (b) where the remedy of specific
performance or other forms of equitable relief may be subject to
certain equitable defenses and principles and to the discretion of
the court before which the proceeding may be brought.
SECTION
2.02.
No Conflict .
(a) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder
shall not, (i) conflict with or violate any federal, state or local
law, statute, ordinance, rule, regulation, order, judgment or
decree applicable to the Stockholder or by which the Common Stock,
Options, or any Other Securities currently owned by the Stockholder
are bound or affected or (ii) result in any breach of or
constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or give to others any rights
of termination
