Exhibit 10.1 Employment Agreement

                                                                                    Exhibit
    10.1

     

     

    EMPLOYMENT
      AGREEMENT dated as of August 12, 2005 (the “Employment
      Agreement”),
      by
      and between MILLENNIUM CELL INC., a Delaware corporation (“Millennium
      Cell”),
      and
      H. DAVID RAMM, an individual residing at 35 West Terrace Drive, Houston, Texas
      77007-7040 (“Executive”).

    


    In
      consideration of the promotion of Executive to the position of Chief Executive
      Officer of Millennium Cell and in replacement of that certain employment
      agreement between Millennium Cell and Executive dated as of July 14, 2004 (the
      “Previous Agreement”), 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. Term.
      Millennium Cell hereby agrees to continue to employ Executive, and Executive
      hereby accepts such continued employment, under and subject to all of the terms,
      conditions and provisions hereof, from April 25, 2005, and ending on the close
      of business on December 31, 2005 (the “Employment
      Term”).
      At
      the end of the Employment Term, this Employment Agreement shall renew
      automatically for additional one-month periods unless either party delivers
      to
      the other party 30 days’ prior written notice of such party’s election that the
      Employment Term not be so renewed. If this Employment Agreement is extended
      in
      accordance with the preceding sentence, the “Employment Term” shall be extended
      until the end of the applicable extension period. The parties agree and
      acknowledge that the Previous Agreement shall be null and void and of no further
      force and effect as of the date hereof.

    


    2. Duties.
      During
      the Employment Term, Executive will be employed as Millennium Cell’s Chief
      Executive Officer. Executive shall be responsible for all duties customarily
      associated with his title, and be responsible for the general management of
      the
      business and operations of Millennium Cell. Executive shall report directly
      to
      the Chairman of the Board of Directors of Millennium Cell (or any individual
      director designated by such Chairman). Executive shall be allowed to devote
      time
      to other activities and employment; provided,
      that
      Executive shall devote a sufficient amount of time to Millennium Cell so as
      to
      be able to perform his duties under the above-mentioned title and shall make
      himself available after regular business hours (by telephone, e-mail and
      facsimile machine) and shall travel if and as necessary in order to conduct
      Millennium Cell’s business and fully discharge Executive’s responsibilities
      under this Employment Agreement.

    


    3. Compensation;
      Fringe Benefits.
      As full
      consideration for the services provided by Executive hereunder, Executive shall
      be granted fifty thousand (50,000) restricted shares of common stock, par value
      $.001 per share, of Millennium Cell, which restricted shares shall be subject
      to
      the vesting schedule, forfeiture events and other terms, conditions and
      restrictions set forth in this Employment Agreement, in that certain Restricted
      Stock Grant Agreement dated as of the date hereof (the “Grant
      Agreement”)
      issued
      by Millennium Cell to Executive and in that certain Amended and Restated
      Millennium Cell Inc. 2000 Stock Option Plan, amended effective December 1,
      2001
      (the “Plan”).

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4. Termination.
      This
      Employment Agreement may be terminated by any party at any time for any reason.
      In the event of any termination of this Employment Agreement, Executive agrees,
      acknowledges and understands that he shall not be eligible for any severance
      payments except as set forth in the Grant Agreement.

    


    5. No
      Solicitation of Employees.
      During
      the Employment Term, and for a period of one year after the expiration or
      earlier termination of this Employment Agreement, other than in the course
      of
      Executive’s performance of his duties on behalf of Millennium Cell, Executive
      shall not for any reason, directly or indirectly, through another person or
      entity (i) induce or attempt to induce any officer, director, employee,
      contractor, consultant or advisor (collectively, “Personnel”)
      of
      Millennium Cell or any of its Affiliates (as defined below) to end or terminate
      its relationship with Millennium Cell or such Affiliates, or in any way
      interfere with the relationship between Millennium Cell or any such Affiliates,
      on the one hand, and any of their Personnel, on the other hand, (ii) knowingly
      hire or assist a third party seeking to have any member of the Personnel of
      Millennium Cell or its Affiliates until six months after such individual’s
      relationship with Millennium Cell and/or any Affiliate of Millennium Cell has
      been terminated or (iii) induce or attempt to induce any client, customer,
      supplier, vendor, licensee or other business relation of Millennium Cell or
      any
      of its Affiliates to cease doing business with Millennium Cell or its
      Affiliates, or in any way interfere with the relationship between any such
      client, customer, supplier, vendor, licensee or business relation, on the one
      hand, and Millennium Cell or any its Affiliates, on the other hand.

    


    6. Confidential
      Information.
      Executive recognizes and acknowledges that Millennium Cell and its Affiliates’
      trade secrets and confidential or Proprietary Information (as defined below),
      including such trade secrets or information as may exist from time to time,
      and
      information as to the identity of customers of Millennium Cell and its
      Affiliates, and other similar items (collectively, “Confidential
      Information”),
      are
      valuable, special and unique assets of Millennium Cell’s business, the access to
      and knowledge of which are essential to the performance of the duties of
      Executive hereunder. Executive will not, in whole or in part, disclose, at
      any
      time, either during or subsequent to his employment with Millennium Cell, such
      Confidential Information to any person, firm, corporation, limited liability
      company, partnership, association or any other entity for any reason or purpose
      whatsoever, except as required in connection with Executive’s duties to
      Millennium Cell and except to Millennium Cell’s Personnel and similar
      representatives who are aware of the confidential nature thereof and are bound
      by a duty of confidentiality with respect thereto, nor shall Executive make
      use
      of any such Confidential Information for his own purposes or for the benefit
      of
      any person, firm, corporation limited liability company, partnership,
      association or other entity (except Millennium Cell) under any circumstances;
      provided,
      however,
      that
      Executive may disclose (i) information in the public domain not as a result
      of a
      breach of this Employment Agreement, (ii) information lawfully received from
      a
      third party who had the right to disclose such information and was not violating
      an obligation to Millennium Cell in connection therewith and (iii) information,
      other than Proprietary Information, learned through Executive’s own independent
      skill, knowledge, know-how and experience to whatever extent and in whatever
      way
      Executive wishes, in each case consistent with Executive’s obligations under
      this Employment Agreement. In the event that Executive is requested or required
      (by oral questions, deposition, interrogatories, requests for information or
      documents, subpoena, civil investigative demand or other process) to disclose
      all or any part of any Confidential Information, Executive shall use reasonable
      efforts to provide Millennium Cell with prompt notice of such request or
      requirement so that Millennium Cell may seek an appropriate protective order
      or
      waive compliance with the provisions of this Employment Agreement, as well
      as
      notice of the terms and circumstances surrounding such request or requirement.
      In any such case, Executive shall discuss with Millennium Cell the advisability
      of pursuing any such order or other legal action or available steps to resist
      or
      narrow such request or requirement. If, failing the entry of a protective order
      or the receipt of a waiver hereunder, Executive is legally compelled to disclose
      Confidential Information, Executive may disclose that portion of the
      Confidential Information which Executive is legally compelled to disclose.
      In
      any event, Executive shall use reasonable efforts to cooperate with Millennium
      Cell’s efforts to obtain and shall not oppose action by Millennium Cell to
      obtain, an appropriate protective order or other reliable assurance that
      confidential treatment will be accorded the disclosure of such
      information.

    


    
      
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    7. Ownership
      of Proprietary Information.
      Executive acknowledges and agrees that all information that has been created,
      discovered or developed by Millennium Cell, its subsidiaries, affiliates,
      licensors, licensees, successors or assigns (collectively, the “Affiliates”)
      (including, without limitation, information relating to the development of
      Millennium Cell’s business created, discovered, developed or made known to
      Millennium Cell or the Affiliates by the Executive during the Employment Term
      and information relating to Millennium Cell’s customers, suppliers, consultants
      and licensees) and/or in which property rights have been assigned or otherwise
      conveyed to Millennium Cell or its Affiliates, shall be the sole property of
      Millennium Cell or its Affiliates, as applicable, and Millennium Cell or its
      applicable Affiliate, as the case may be, shall be the sole owner of all
      patents, patent rights, licenses and other proprietary rights in connection
      therewith, including, but not limited to, the right to file applications for
      statutory protection. All of the aforementioned information is hereinafter
      called “Proprietary
      Information”.
      By way
      of illustration, but not limitation, Proprietary Information includes trade
      secrets, processes, discoveries, structures, inventions, designs, ideas, works
      of authorship, copyrightable works, trademarks, copyrights, formulas, data,
      know-how, show-how, improvements, inventions, product concepts, techniques,
      information or statistics contained in, or relating to, marketing plans,
      strategies, forecasts, blueprints, sketches, records, notes, devices, drawings,
      customer lists, patent applications, continuation applications,
      continuation-in-part applications, file wrapper continuation applications and
      divisional applications and information about Millennium Cell’s or its
      Affiliates’ Personnel and/or advisors (including, without limitation, the
      compensation, responsibility and performance of such Personnel).

    


    8. Disclosure
      and Ownership of Inventions.
      (a)
      During the Employment Term, Executive agrees that he will promptly disclose
      to
      Millennium Cell, or any persons designated by Millennium Cell, any and all
      improvements, inventions, designs, ideas, works of authorship, copyrightable
      works, discoveries, trademarks, copyrights, trade secrets, formulas, processes,
      structures, product concepts, marketing plans, strategies, customer lists,
      techniques, blueprints, sketches, records, notes, devices, drawings, know-how,
      data, whether or not patentable, patent applications, continuation applications,
      continuation-in-part applications, file wrapper continuation applications and
      divisional applications (collectively hereinafter referred to as the
“Inventions”),
      made
      or conceived or reduced to practice or learned by Executive, either alone or
      jointly with others, during the Employment Term. 

    


    
      
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    (b) Executive
      agrees that all Inventions shall be the sole property of Millennium Cell to
      the
      maximum extent permitted by applicable law and to the extent permitted by law
      shall be “works made for hire” as that term is defined in the United States
      Copyright Act (17 USCA, Section 101). To the extent that any Inventions are
      not
      deemed “works made for hire”, Executive hereby agrees to assign such Invention
      to Millennium Cell. Millennium Cell shall be the sole owner of all patents,
      copyrights, trademarks, trade secret rights and other intellectual property
      or
      other rights in connection therewith. Executive hereby agrees to assign to
      Millennium Cell all right, title and interest Executive may have or acquire
      in
      all Inventions. Executive further agrees to assist Millennium Cell in every
      proper way (but at Millennium Cell’s expense) to obtain and from time to time
      enforce patents, copyrights, trademarks or other rights on said Inventions
      in
      any and all countries, and to that end Executive will execute all documents
      necessary:

     

    (i) to
      apply
      for, obtain and vest in the name of Millennium Cell alone (unless Millennium
      Cell otherwise directs) letters patent, copyrights, trademarks or other
      analogous protection in any country throughout the world and when so obtained
      or
      vested to renew and restore the same; and

     

    (ii) to
      defend
      any opposition proceedings in respect of such applications and any opposition
      proceedings or petitions or applications for revocation of such letters patent,
      copyright, trademark or other analogous protection.

    


    (c) Executive’s
      obligation to assist Millennium Cell in obtaining and enforcing patents,
      copyrights and trademarks for the Inventions in any and all countries shall
      continue beyond the Employment Term, but Millennium Cell agrees to compensate
      Executive at a reasonable rate after the expiration of the Employment Term
      for
      time actually spent by Executive at Millennium Cell’s request in connection with
      such assistance.

    


    9. Injunction.
      Executive agrees that his failure to perform the obligations provided by
      Sections 5, 6, 7 or 8 of this Employment Agreement will result in material
      irreparable injury to Millennium Cell for which there is no adequate remedy
      at
      law and that it will not be possible to measure damages for such injuries
      precisely. Accordingly, Executive agrees that if he breaches, or proposes to
      breach, any portion of Sections 5, 6, 7 or 8 of this Employment Agreement,
      Millennium Cell shall be entitled, in addition to all other remedies that it
      may
      have and without the posting of a bond or other security, to a temporary
      restraining order and/or an injunction, specific performance or other
      appropriate equitable relief to restrain any such breach without showing or
      proving any actual damage to Millennium Cell.

    


    10. Acknowledgment;
      Enforceability.
      Executive has reviewed this Employment Agreement in its entirety, has had an
      opportunity to obtain the advice of counsel prior to executing this Employment
      Agreement and fully understands all provisions of this Employment Agreement.
      Executive hereby acknowledges that the type and periods of restriction imposed
      in the provisions of this Employment Agreement are fair and reasonable and
      are
      reasonably required for the protection of Millennium Cell’s Proprietary
      Information, Confidential Information and the goodwill associated with
      Millennium Cell’s business. Executive hereby further acknowledges that the
      provisions of this Employment Agreement shall be enforced to the fullest extent
      permissible under the laws and public policies applied in each jurisdiction
      in
      which enforcement is sought. Accordingly, if any portion or provision of this
      Employment Agreement is to any extent declared illegal, invalid or unenforceable
      by a court of competent jurisdiction, then this Employment Agreement shall
      be
      deemed amended to modify or delete therefrom the portion thus declared illegal,
      invalid or unenforceable, and the remainder of this Employment Agreement, or
      the
      application of such portion or provision in circumstances other than those
      as to
      which it is so declared illegal, invalid or unenforceable, will not be affected
      thereby, and each portion and provision of this Employment Agreement shall
      be
      valid and enforceable to the fullest extent permitted by law. In the event
      that
      any provision of this Employment Agreement is determined by any court of
      competent jurisdiction to be unenforceable by reason of excessive scope,
      geographic area, or temporal or functional coverage, such provision will be
      deemed to extend only over the maximum scope, geographic area or temporal and
      functional coverage as to which it may be enforceable, and the court shall
      revise the restriction contained herein to cover such maximum scope, geographic
      area and temporal and functional coverage. Any provision of this Employment
      Agreement which is prohibited or unenforceable in any jurisdiction shall, as
      to
      such jurisdiction, be ineffective to the extent of such prohibition or
      unenforceability without invalidating the remaining provisions hereof, and
      any
      such prohibition or unenforceability in any jurisdiction shall not invalidate
      or
      render unenforceable such provision in any other jurisdiction.

    


    
      
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    11. Notices.
      Any
      notice required to be given or delivered to Millennium Cell under the terms
      of
      this Employment Agreement shall be in writing and addressed to Millennium Cell
      at 1 Industrial Way West, Eatontown, New Jersey [Missing Graphic
      Reference]07724,
      Fax: 732-542-4010, Attention: Chairman of the Board, or to such other address
      as
      shall be provided in writing to Executive. Any notice required to be given
      or
      delivered to Executive shall be in writing and addressed to the most recent
      address of Executive, as set forth in the books and records of Millennium Cell.
      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.

    


    12. Entire
      Agreement.
      This
      Agreement and the Grant 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 Employment
      Agreement, that are not fully expressed herein or therein.

    


    13. Governing
      Law.
      This
      Employment Agreement shall be governed by, and construed in accordance with,
      the
      laws of the State of New York (without regard to such State’s conflict of laws
      doctrines).

    


    14. Amendments
      and Waivers.
      The
      parties hereto may, by written agreement signed by the parties, modify any
      of
      the covenants or agreements or modify the time for the performance of any of
      the
      obligations contained in this Employment Agreement or in any document delivered
      pursuant to this Employment Agreement. Any party hereto may waive, by written
      instrument signed by such party, compliance by the other party, with any of
      the
      other party’s obligations contained in this Employment Agreement. 

    


    
      
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    15. No
      Waiver of Rights.
      No
      failure or delay on the part of any party in the exercise of any power or right
      hereunder shall operate as a waiver thereof, nor shall any single or partial
      exercise of any such power or right preclude other or further exercise thereof
      or of any other right or power. The waiver by any party or parties hereto of
      a
      breach of any provision of this Employment Agreement shall not operate or be
      construed as a waiver of any other or subsequent breach hereunder. All rights
      and remedies existing under this Employment Agreement are cumulative and are
      not
      exclusive of any rights or remedies otherwise available.

    


    16. Submission
      to Jurisdiction.
      Any and
      all suits, legal actions or proceedings against any party hereto arising out
      of
      this Employment Agreement shall be brought in any United States federal court
      sitting in the State of 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.

    


    17. Counterparts.
      This
      Employment Agreement may be executed in one or more counterparts, each of which
      shall be deemed to be an original, but both of which together shall constitute
      one and the same instrument.

    


    18. Construction.
      Whenever used in this Employment 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 Employment Agreement have been inserted for
      purposes of convenience and shall not be used for interpretive
      purposes.

    


    19. Successors.
      The
      rights and obligations of Millennium Cell under this Employment Agreement shall
      be transferable to any successor thereto. The rights and obligations of
      Executive under this Employment Agreement may only be assigned with the prior
      written consent of Millennium Cell.


    
      
        
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    IN
      WITNESS WHEREOF, the parties hereto have executed and delivered this Employment
      Agreement as of the day and year first set forth above.

    


                                         


                                          
      H. David
      Ramm

                                          
      /s/H.
      David Ramm

    


     

    MILLENNIUM
      CELL INC.

     

    By:
      /s/G.
      Chris Andersen     

    Name:
      G.
      Chris Andersen

    Title:
      Chairman of the Board