AMENDMENT NO. 1 TO JOINT DEVELOPMENT AGREEMENT

 

This Amendment No. 1 (this “Amendment”) to the Joint Development Agreement dated as of April 25, 2005 by and between Millennium Cell Inc., a Delaware corporation (the “MCEL”) and The Dow Chemical Company (“Dow”) (together with all exhibits, schedules and attachments thereto and made a part thereof, the “Joint Development Agreement”), is made as of the 30th day of May 2006, by and between MCEL and Dow. MCEL and Dow also may be referred to herein individually as a “Party” or collectively as the “Parties”.

 

WHEREAS, the Parties entered into the Joint Development Agreement; and

 

WHEREAS, the Parties desire to amend certain provisions of the Joint Development Agreement, all as more fully set forth herein;

 

NOW, THEREFORE, in consideration of the mutual covenants and agreements of the Parties contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

Section 1.  Definitions. Capitalized terms used in this Amendment but not defined herein shall have the meanings specified in the Joint Development Agreement.

 

Section 2.  Amendments to Section 9.2. Section 9.2(d) and Section 9.2(e) are each hereby amended to replace all references in such sections to “ten-Business Day period” with “five (5)-Business Day period.”

 

Section 3.  Amendments to Exhibit A. Exhibit A to the Joint Development Agreement is amended as follows:

 

(a) The definition of “Application” is hereby deleted in its entirety and replaced with the following:

 

 

 

 

(b) The following definition is hereby added to Exhibit A of the Joint Development Agreement, to be inserted after the definition of Business Day and before the definition of Common Stock:

 

Section 4.  Limited Amendment. Except as specifically provided in this Amendment and as the context of this Amendment otherwise may require to give effect to the intent and purposes of this Amendment, the Joint Development Agreement shall remain in full force and effect without any other amendments or modifications.

 

Section 5.  Captions. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation of this Amendment.

 

Section 6.  Governing Law. This Amendment shall be construed in accordance with and governed by the law of the State of Delaware (without regard to the choice of law provisions thereof).

 

Section 7.  Counterparts; Effectiveness. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Amendment shall become effective when each Party shall have received a counterpart hereof signed by the other Parties. Each Party may execute this Amendment on a facsimile of this Amendment. In addition, facsimile signatures of authorized signatories of any Party shall be valid and binding, and delivery of a facsimile signature by such Party shall constitute due execution and delivery of this Amendment.

 

Section 8.  Construction. The Parties have participated jointly in the negotiation and drafting of this Amendment. In the event an ambiguity or question of intent or interpretation arises, this Amendment shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Amendment.

 

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

By:      /s/John D. Giolli 

    Name: John D. Giolli

    Title: Chief Financial Officer

By:      /s/Fernando Ruiz 

    Fernando Ruiz

Corporate Vice President and Treasurer