[Form Of] INVESTOR RIGHTS AGREEMENT

Exhibit10.4
[Formof]


THIS(this “Agreement”)is made as of the [__] day of [_____________], 2005 by and among Millennium CellInc., a Delaware corporation (the “Company”),and The Dow Chemical Company, a Delaware corporation (“Investor”).
RECITALS
 
WHEREAS,the Company and the Investor are parties to that certain Stock PurchaseAgreement dated February 27, 2005 (the “PurchaseAgreement”),pursuant to which, among other things, at the First Closing (as defined in thePurchase Agreement) the parties hereto are to enter into this Agreement;and
 
WHEREAS,the First Closing has occurred and, simultaneously therewith, the parties heretoare entering into this Agreement pursuant to the PurchaseAgreement;
 
NOW,THEREFORE,in consideration of the mutual covenants set forth herein, and for other goodand valuable consideration, the receipt and sufficiency of which areacknowledged, the parties agree as follows:
 
1.  Definitions. Forpurposes of this Agreement:
 
1.1.  Affiliate”means with respect to any individual, corporation, partnership, association,trust, or any other entity (in each case, a “Person”),any Person which, directly or indirectly, controls, is controlled by or is undercommon control with such Person, including, without limitation any generalpartner, officer or director of such Person; provided,however,that the Investor shall not be deemed an Affiliate of the Company.
 
1.2.  Board”means the Board of Directors of the Company.
 
1.3.  CommonStock”means the Company’s common stock, par value $0.001 per share.
 
1.4.  “Current Market Capitalization” means, as of any date, the product of (x) thenumber of shares of Common Stock outstanding (determined on a Fully DilutedBasis) multiplied by (y) the VWAP for the thirty (30)-trading day periodimmediately preceding such date.
 
1.5.  ExchangeAct”means the Securities Exchange Act of 1934, as amended, and the rules andregulations promulgated thereunder.
 
1.6.  FullyDiluted Basis”means, as of any date, on a fully diluted basis, as if (i) all shares ofPreferred Stock, evidences of indebtedness, shares or other securitiesconvertible into or exchangeable for Common Stock had been fully converted intoor exchanged for shares of Common Stock and (ii) any outstanding warrants,options or other rights to acquire shares of capital stock or convertiblesecurities (the securities described in clauses (i) and (ii) being hereinafterreferred to as “CommonStock Equivalents”)had been fully exercised (and the resulting securities fully converted intoshares of Common Stock), but excluding any Common Stock Equivalents having anexercise, strike or conversion price in excess of the VWAP for the thirty (30)trading day period immediately preceding the date of suchdetermination.
 

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1.7.  GAAP”means generally accepted accounting principles. 
 
1.8.  InitialSeries A Liquidation Value”has the meaning set forth in the Purchase Agreement.
 
1.9.  InitialSeries B Liquidation Value”has the meaning set forth in the Purchase Agreement.
 
1.10.  JointDevelopment Agreement”means that Joint Development Agreement between Millennium Cell Inc. and The DowChemical Company entered into as of the date hereof.
 
1.11.  MinimumSeries B Investment”means, with respect to each Closing (as defined in the Purchase Agreement), thepayment by the Investor to the Company of at least $1,250,000 in exchange forSeries B Preferred Stock at such Closing, subject to the terms of the PurchaseAgreement.
 
1.12.  NewSecurities”means equity securities of the Company, whether now authorized or not, orrights, options, or warrants to purchase said equity securities, or securitiesof any type whatsoever that are, or may become, convertible into or exchangeableinto or exercisable for said equity securities.
 
1.13.  PreferredStock”means the Series A Preferred Stock and Series B Preferred Stock.
 
1.14.  PutPeriod”means that period of time from and after the date that the Investor has made thefirst Minimum Series B Investment under the Purchase Agreement and for so longas (i) the Investor holds 5% or more of the outstanding shares of Common Stock(determined on a Fully Diluted Basis) and (ii) the Investor has not terminatedthe Joint Development Agreement without Cause (as defined in the JointDevelopment Agreement) pursuant to Section 11.3 of the Joint DevelopmentAgreement.
 
1.15.  PutTriggering Event”means the occurrence of any of the following: (i) the discontinuance of theCompany’s development activities targeting sub-50 watt power systems;(ii) the incurrence by the Company of indebtedness for borrowed money(including, without limitation, debt hybrid instruments convertible into equityand similar financing arrangements and guaranties of the obligations of others)outstanding at any one time in excess of 50% of the Current MarketCapitalization; (iii) the acquisition by the Company of assets, businessoperations or securities of a Person not engaged in the delivery of sub-50 wattpower systems whereby the consideration paid in such acquisition is in excess of50% of the Current Market Capitalization; or (iv) the sale, license orother transfer of exclusive rights to any of the Company’s intellectual property(including, without limitation, the MCEL Contributed Intellectual Property (asdefined in the Joint Development Agreement) and the JDA Intellectual Property(as defined in the Joint Development Agreement) necessary for the Company’s useof sub-50 watt power systems.
 

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1.16.   SeriesA Preferred Stock” meansthe Company’s Series A Convertible Preferred Stock, with the powers, preferencesand special rights set forth in the Series A Certificate ofDesignation.
 
1.17.  SeriesB Preferred Stock”means the Company’s Series B Convertible Preferred Stock,with the powers, preferences and special rights set forth in the Series BCertificate of Designation. 
 
1.18.  TradingMarket”means any of the New York Stock Exchange, the American Stock Exchange, theNasdaq National Market or the Nasdaq Smallcap Market.
 
1.19.  TransactionAgreements”means this Agreement, the Purchase Agreement, the Joint Development Agreement,the Cross Licensing Agreement, the Registration Rights Agreement, the StandstillAgreement, all MFN Licenses (as defined in the Cross Licensing Agreement, ifany, the Patent Assignment Agreement and the Note).
 
1.20.  VWAP”shall mean, with respect to any date on which a determination is required, (i)if the security is listed for trading on any Trading Market, a price, rounded tothe nearest cent, equal to (A) the sum of the following product determined foreach trading day in the specified number of consecutive trading days: (1) thelast sale price of the security during normal business hours on a specifictrading day as finally reported by the Trading Market, multiplied by (2) thenumber of shares of the security that were traded on such trading day on theTrading Market, divided by (B) the aggregate number of shares of the securitythat were traded on such trading days, and (ii) if the security is not listedfor trading on any Trading Market on the date of such calculation (or on anytrading day during the relevant number of trading days immediately preceding thedate of such determination), the fair market value of the security determinedpursuant to an appraisal process mutually satisfactory to the Company and theInvestor.
 
1.21.  Warrant”means any warrants convertible into shares of Common Stock issued to Investor bythe Company pursuant to the Purchase Agreement.
 
2.  Informationand Observer Rights.
 
2.1.  Deliveryof Financial Statements.For so long as the Investor holds 5% or more of the outstanding shares of CommonStock (determined on a Fully Diluted Basis), theCompany shall deliver to theInvestor:
 
(a)  assoon as practicable, but in any event within ninety (90) days after the end ofeach fiscal year of the Company, the Company’s audited balance sheet and incomestatement as of the last day of such year, a statement of cash flows for suchyear and a schedule as to the sources and applications of funds for such year,such year-end financial reports to be in reasonable detail, prepared inaccordance with GAAP and a copy of the letter to management from the Company’sindependent public accountants selected by the Board, unless such information ismade publicly available by filing with the Securities and Exchange Commission onEDGAR;
 

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(b)  assoon as practicable, but in any event within forty-five (45) days after the endof each of the first three (3) quarters of each fiscal year of the Company, anunaudited income statement, a schedule as to the sources and applications offunds for such fiscal quarter, an unaudited balance sheet, a statement ofstockholder’s equity as of the end of such fiscal quarter;
 
(c)  assoon as practicable, but in any event promptly after the Board’s approvalthereof, an annual budget and business plan for the next fiscal year(collectively, the “Budget”)prepared by the Company; and
 
(d)  simultaneouslywith the delivery thereof to the Company’s lenders and debt holders, such otherinformation relating to the financial condition, business, prospects, operationsor corporate affairs of the Company that the Company has delivered to itslenders and debt holders.
 
(e)  assoon as practicable, but in any event within forty-five (45) days after the endof each quarter of each fiscal year of the Company, a statement showing thenumber of shares of each class and series of capital stock and securitiesconvertible into or exercisable for shares of capital stock outstanding at theend of the period, the number of common shares issuable upon conversion orexercise of any outstanding securities convertible or exercisable for commonshares and the exchange ratio or exercise price applicable thereto and number ofshares of issued stock and stock options not yet issued but reserved forissuance, if any, all in sufficient detail as to permit the Investor tocalculate its percentage equity ownership in the Company and certified by theChief Financial Officer or Chief Executive Officer of the Company as being true,complete and correct.
 
2.2.  Confidentiality.At such time as Investor holds 5% or more of the outstanding shares of CommonStock (determined on a Fully Diluted Basis), the Company and Investor shallenter into a mutually-satisfactory confidentiality agreement, whichconfidentiality agreement shall be sufficient to comply with requirements ofRegulation FD under the Exchange Act and preserve the attorney-client privilegeand work product privilege, if any, between the Company and its counsel andshall provide that Investor will cause the Investor Observer to comply with suchconfidentiality agreement.
 
2.3.  Inspection.The Company shall The Company shall permit the Investor, at the Investor’sexpense, to visit and inspect the Company’s properties, to examine its books ofaccounts and financial records and to discuss the Company’s affairs, financesand accounts with its officers, all at such reasonable times during normalbusiness hours as may be reasonably requested in advance by the Investor;provided,however,that the Company shall not be obligated pursuant to this Section 2.3 to provideaccess to any information which would adversely affect the attorney clientprivilege between the Company and its counsel or to provide access to documentsor other information which is covered by confidentialityagreements..
 
2.4.  Observer Rights.For so long as the Investor holds 5% or more of the outstanding shares of CommonStock (determined on a Fully Diluted Basis), the Investor will have the right todesignate one (1) natural Person to serve as an observer at meetings of theBoard and all committees thereof (the “InvestorObserver”).The initial Investor Observer shall be the Director of Natural Resources of theInvestor; provided,however,the Investor shall have the right to replace the Person serving as InvestorObserver from time to time at its sole discretion. The Company shall give theInvestor Observer copies of all notices, minutes, consents and other materialsthat it provides to its directors at the same time and in the same manner asprovided to its directors; provided however that the Company shall not beobligated to give the Investor Observer any documents if to do so would causesuch document to not be subject to the attorney-client privilege or work productprivilege. The Investor Observer shall treat and hold all such informationreceived pursuant to this Section 2.3in confidence in accordance with the confidentiality agreement contemplated bySection 2.2hereof. The Company hereby agrees to indemnify and hold harmless the InvestorObserver to the same extent and in the same manner as the Company indemnifiesits non-employee Directors.
 

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3.  Rightto Maintain Ownership.
 
3.1.  SubsequentOfferings.Subject to the terms and conditions specified in this Section 3.1and applicable securities laws, in the event the Company issues any NewSecurities, the Company shall, prior to such issuance, make an offering of suchNew Securities to the Investor in accordance with the following provisions ofthis Section3.1.
 
(a)  TheCompany shall deliver a notice (the “OfferNotice”)to the Investor stating (i) its intent to issue New Securities,(ii) the number of such New Securities to be offered, and (iii) theprice and terms upon which it proposes to offer such NewSecurities.
 
(b)  Bywritten notification received by the Company, within ten (10) Business Daysafter receipt of the Offer Notice, the Investor may elect to purchase or obtain,at the price and on the terms specified in the Offer Notice, not less than thatportion of such New Securities which equals the proportion that the number ofshares of Common Stock (including the number of shares of Common Stock intowhich the Investor’s shares of Preferred Stock could be converted) then held bythe Investor bears to the total number of shares of Common Stock of the Companythen outstanding (on a Fully Diluted Basis) (the “ProportionateShare”).
 
(c)  Ifthe Investor elects not to purchase or obtain at least its Proportionate Shareof all New Securities referred to in the Offer Notice as provided inSection 3.1(b)hereof, the Company may, during the sixty (60) day period following theexpiration of the period provided in Section 3.1(b)hereof, offer such New Securities (collectively, the “RefusedSecurities”)to any Person at a price not less than, and upon terms no more favorable to theofferee than, those specified in the Offer Notice. If the Company does not enterinto an agreement for the sale of the New Securities within such period, or ifsuch agreement is not consummated within sixty (60) days of the executionthereof, the right provided hereunder shall be deemed to be revived and theCompany shall offer the Investor the right to purchase at least itsProportionate Share of such New Securities in accordance with this Section 3.1.
 
(d)  TheInvestor’s right to maintain ownership as provided in this Section3.1shall not be applicable to (i) any securities to be issued to employees,officers or directors of, or consultants or advisors to, the Company pursuant tostock purchase or stock option plans or other arrangements that are for purposesof compensation to such person in their
 

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capacityas employees, officers, directors, consultants or advisors and are approved bythe Board, subject to a maximum of the lower of (x) 4,000,000 shares ofCommon Stock (as adjusted by stock dividends, splits, subdivisions orcombinations of shares and on an as-converted basis) and (y) 10% of theoutstanding shares of Common Stock (determined on a Fully DilutedBasis), (ii)any securities of any class or series issued or to be issued pursuant to anyconvertible debentures, options or warrants outstanding as of the date of theJoint Development Agreement; (iii) any securities of any class or series issuedor to be issued pursuant to the conversion or exercise of any securities issuedin connection with the Joint Development Agreement; (iv) any securities issuedfor consideration other than cash pursuant to a merger, consolidation,acquisition or similar business combination, subject to a maximum of the lowerof (x) 2,000,000 shares of Common Stock (as adjusted by stock dividends,splits, subdivisions or combinations of shares and on an as-converted basis) and(y) 5% of the outstanding shares of Common Stock (determined on a FullyDiluted Basis); or (v) any securities issued in connection with any stock split,stock dividend, recapitalization or similar transaction by theCompany
 
;provided,however,the exceptions to Section3.1contained in clause (i) and clause (iv) of this paragraph shall no longer beavailable to the Company if, after the date hereof, the Company issues LimitedIssuance Shares (as defined below) in an aggregate amount equal to or greaterthan the lower of (x) 5,000,000 shares of Common Stock (as adjusted by stockdividends, splits, subdivisions or combinations of shares and on an as-convertedbasis) and (y) 12.5% of the outstanding shares of Common Stock (determined on aFully Diluted Basis).
 
Theterm “LimitedIssuance Shares”means either (x) shares of Common Stock or (y) the maximum number ofshares of Common Stock issuable upon conversion, exchange or exercise of CommonStock Equivalents:
 
(a)  issuedto employees, officers or directors of, or consultants or advisors to, theCompany pursuant to stock purchase or stock option plans or other arrangementsthat are for purposes of compensation to such persons in their capacity asemployees, officers, directors, consultants or advisors and are approved by theBoard, subject to an aggregate maximum of the lower of (x) 4,000,000 shares ofCommon Stock (as adjusted by stock dividends, splits, subdivisions orcombinations of shares and on an as-converted basis) and (y) 10% of theoutstanding shares of Common Stock (determined on a Fully Diluted Basis);
 
(b)  issuedfor consideration other than cash pursuant to a merger, consolidation,acquisition or similar business combination, subject to an aggregate maximum ofthe lower of (x) 2,000,000 shares of Common Stock (as adjusted by stockdividends, splits, subdivisions or combinations of shares and on an as-convertedbasis) and (y) 5% of the outstanding shares of Common Stock (determined on aFully Diluted Basis);
 
(c)  issuedas consideration, whether in whole or in part, to any person or entity forproviding services or supplying goods to the Company, subject to an aggregatemaximum of the lower of (x) 2,000,000 shares of Common Stock (as adjusted bystock dividends, splits, subdivisions or combinations of shares and on anas-converted basis) and (y) 5% of the outstanding shares of Common Stock(determined on a Fully Diluted Basis);
 

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(d)  issuedto any entity which is or will be, itself or through its subsidiaries oraffiliates, an operating company in a business related to or complementary withthe business of the Company and in which the Company receives reasonablymaterial benefits in addition to the investment of funds, subject to anaggregate maximum of the lower of (x) 2,000,000 shares of Common Stock (asadjusted by stock dividends, splits, subdivisions or combinations of shares andon an as-converted basis) and (y) 5% of the outstanding shares of Common Stock(determined on a Fully Diluted Basis);
 
(e)  issuedpursuant to any equipment leasing arrangement, subject to an aggregate maximumof the lower of (x) 2,000,000 shares of Common Stock (as adjusted by stockdividends, splits, subdivisions or combinations of shares and on an as-convertedbasis) and (y) 5% of the outstanding shares of Common Stock (determined on aFully Diluted Basis); and
 
(f)  issuedto pay all or a portion of any investment banking, finders or similar fee orcommission, which entitles the holders thereof to acquire shares of Common Stockat a price not less than the market price of the Common Stock on the date ofsuch issuance and which is not subject to any adjustments other than on accountof stock splits and reverse stock splits, subject to an aggregate maximum of thelower of (x) 2,000,000 shares of Common Stock (as adjusted by stock dividends,splits, subdivisions or combinations of shares and on an as-converted basis) and(y) 5% of the outstanding shares of Common Stock (determined on a Fully DilutedBasis).
 
4.  InvestorPut Option.
 
4.1.  PutRights.Subject to Section4.2,upon the occurrence of a Put Triggering Event during the Put Period, theInvestor will have the right to require the Company to purchase all or anyportion of the Preferred Stock and Common Stock held by the Investor (includingwithout limitation any Common Stock held by Investor by virtue of its exercisingof any Warrants) (the “PutRight”)at a price equal to the greater of (x) the aggregate Initial Series ALiquidation Value plus the aggregate Initial Series B Liquidation Value plus thepurchase price paid by the Company in connection with the exercise of any suchWarrants, in each to the extent such securities are subject to the Put Right,and (y) an amount equal to the number of shares of Common Stock (on anas-converted basis) that are subject to the Put Right multiplied the VWAP forthe thirty (30)-trading day period immediately preceding such date (the“PutPurchase Price”).
 
4.2.  Notices.
 
(a)  Atleast thirty (30) days prior to any occurrence of a Put Triggering Event, theCompany may deliver a written request to the Investor describing in reasonabledetail a specific Put Triggering Event that the Company intends to engage in andrequesting that the
 

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Investornot exercise its Put Right upon the occurrence of the specified Put TriggeringEvent (the “CompanyRequest”).If the Investor does not respond in writing to a Company Request within thirty(30) days after receipt by the Investor thereof, the Investor shall not have aPut Right in respect of the Put Triggering Event specified in such CompanyRequest. If the Investor agrees in writing to the request summarized in theCompany Request, then the Investor shall not have a Put Right in respect of thePut Triggering Event specified in such Company Request. If the Investor does notagree in writing to the request summarized in the Company Request, then theInvestor shall have a Put Right in respect of the Put Triggering Event specifiedin such Company Request.
 
(b)  Withinfive (5) Business Days after the occurrence of a Put Triggering Event, theCompany shall provide written notice to the Investor that a Put Triggering Eventhas occurred (the “PutNotice”).If the Investor does not give written notice to the Company of the Investor’sexercise of the Put Right within thirty (30) calendar days after the date thatthe Company has furnished a Put Notice, then the Investor shall not have a PutRight in respect of such Put Triggering Event.
 
4.3.  Paymentof the Put Purchase Price.The Company shall pay to the Investor the Put Purchase Price as follows:
 
(a)  25%of the Put Purchase Price shall be paid by the Company to the Investor promptlyupon the Investor’s exercise of the Put Right, but in no event more than five(5) Business Days thereafter (the “InitialPut Payment”);and
 
(b)  simultaneouslyupon the payment of the Initial Put Payment, the Company shall execute anddeliver a promissory note substantially in the form of ExhibitAhereto (the “Note”),which Note shall provide for the payment of the remaining Put Purchase Price inaccordance with the following schedule: (i) 25% of the Put Purchase Price (plusinterest thereupon at a rate of 12% per annum) shall be paid by the Company tothe Investor within one hundred eighty (180) days of the Investor’s exercise ofthe Put Right; and (ii) 5% of the Put Purchase Price (plus interest thereupon ata rate of 12% per annum) shall be paid by the Company to the Investor on eachsucceeding ninety (90) day anniversary of the Investor’s exercise of the PutRight until the Put Purchase Price has been paid in full, which in no eventshall be later than the third anniversary of the Company’s receipt of the PutNotice.
 
5.  Miscellaneous.
 
5.1.  Transfer;Successors and Assigns.No party shall assign any rights or obligations under this Agreement without theprior written consent of the other party, provided,however,that the Investor may assign any and all rights and obligations under thisAgreement to any of its Affiliates. The terms and conditions of this Agreementshall inure to the benefit of and be binding upon the respective successors andassigns of the parties. Nothing in this Agreement, express or implied, isintended to confer upon any party other than the parties hereto or theirrespective successors and assigns any rights, remedies, obligations,or liabilities under or by reason of this Agreement, except as expresslyprovided in this Agreement.
 

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5.2.  GoverningLaw.This Agreement shall be governed by and construed in accordance with the laws ofthe State of Delaware without regard to its principles of conflicts oflaws.
 
5.3.  Counterparts.This Agreement may be executed in two (2) or more counterparts, each of whichshall be deemed an original, but all of which together shall constitute one andthe same instrument. This Agreement may also be executed and delivered byfacsimile signature and in two or more counterparts, each of which shall bedeemed an original, but all of which together shall constitute one and the sameinstrument.
 
5.4.  Constructionof Certain Terms.The titles of the articles, sections, and subsections of this Agreement are forconvenience of reference only and are not to be considered in construing thisAgreement. Wherever the words “including,” “include” or “includes” are used inthis Agreement, they shall be deemed followed by the words “without limitation.”References to any gender shall be deemed to mean any gender. The parties heretohave participated jointly in the negotiation and drafting of this Agreement. Inthe event an ambiguity or question of intent or interpretation arises, thisAgreement shall be construed as if drafted jointly by the parties hereto, and nopresumption or burden of proof shall arise favoring or disfavoring any party byvirtue of the authorship of any provisions of this Agreement.
 
5.5.  Notices.All notices and other communications given or made pursuant to this Agreementshall be in writing and shall be deemed effectively given: (a) upon personaldelivery to the party to be notified, (b) when sent by confirmed electronic mailor facsimile if sent during normal business hours of the recipient, and if notso confirmed, then on the next business day, (c) five (5) days after having beensent by registered or certified mail, return receipt requested, postage prepaid,or (d) one (1) day after deposit with a nationally recognized overnight courier,specifying next day delivery, with written verification of receipt. Allcommunications shall be sent to the address or facsimile number set forth belowor to such other address or facsimile number as delivered by notice to the otherin accordance with this Section5.5:
 
Ifto the Company:
 
MillenniumCell Inc.
1Industrial Way West
Eatontown,New Jersey 07724
Attention:President
Facsimile:(732) 542-4010
Witha copy to:
Dickstein,Shapiro, Morin & Oshinsky LLP
2101L Street, N.W.
Washington,D.C. 20031-1526
Attention:Neil Lefkowitz
Facsimile:202.887.0689

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Ifto Purchaser:
Ifto Dow:
TheDow Chemical Company
2030Dow Center
Midland,Michigan 48674
Attention:Director, Natural Resources Platform, Dow Ventures
Facsimile:989.638.7133
Witha copy to:
TheDow Chemical Company
2030Dow Center
Midland,Michigan 48674
Attention:Business Counsel, Dow Ventures
Facsimile:989.636.7594
King& Spalding LLP
1700Pennsylvania Avenue, N.W.
Washington,D.C. 20006
Attention:David Gibbons
Facsimile:202.626.3737
5.6.  Feesand Expenses.The Company and the Investor shall each pay its own costs and expenses inconnection with its performance of this Agreement.
 
5.7.  Amendmentsand Waivers.Neither this Agreement nor any term of this Agreement may be amended, terminatedor waived without the written consent of the Company and the Investor. Anyamendment or waiver effected in accordance with this Section 5.7shall be binding upon the Investor and each transferee of the securities, eachfuture holder of all such securities, and the Company.
 
5.8.  Severability.The invalidity of unenforceability of any provision hereof shall in no wayaffect the validity or enforceability of any other provision.
 
5.9.  Delaysor Omissions.No delay or omission to exercise any right, power or remedy accruing to anyparty under this Agreement, upon any breach or default of any other party underthis Agreement, shall impair any such right, power or remedy of suchnon-breaching or non-defaulting party nor shall it be construed to be a waiverof any such breach or default, or an acquiescence therein, or of or in anysimilar breach or default thereafter occurring; nor shall any waiver of anysingle breach or default be deemed a waiver of any other breach or defaulttheretofore or thereafter occurring. Any waiver, permit, consent or approval ofany kind or character on the part of any party of any breach or default underthis Agreement, or any waiver on the part of any party of any provisions orconditions of this Agreement, must be in writing and shall be effective only tothe extent specifically set forth in such writing. All remedies, either underthis Agreement or by law or otherwise afforded to any party, shall be cumulativeand not alternative.
 

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5.10.  EntireAgreement.This Agreement (including the Exhibits hereto) and the other TransactionAgreements constitute the full and entire understanding and agreement betweenthe parties with respect to the subject matter hereof, and any other written ororal agreement relating to the subject matter hereof existing between theparties are expressly canceled.
 
5.11.  DisputeResolution.Any unresolved controversy or claim arising out of or relating to thisAgreement, except as (a) otherwise provided in this Agreement, or(b) any such controversies or claims arising out of either party’sintellectual property rights for which a provisional remedy or equitable reliefis sought, shall be submitted to arbitration by one arbitrator mutually agreedupon by the parties, and if no agreement can be reached within 30 days afternames of potential arbitrators have been proposed by the American ArbitrationAssociation (the “AAA”),then by one arbitrator having reasonable experience in corporate financetransactions of the type provided for in this Agreement and who is chosen by theAAA. The arbitration shall take place in the District of Columbia, in accordancewith the AAA rules then in effect, and judgment upon any award rendered in sucharbitration will be binding and may be entered in any court having jurisdictionthereof. There shall be limited discovery prior to the arbitration hearing asfollows: (a) exchange of witness lists and copies of documentary evidence anddocuments relating to or arising out of the issues to be arbitrated,(b) depositions of all party witnesses and (c) such other depositions asmay be allowed by the arbitrators upon a showing of good cause. Depositionsshall be conducted in accordance with the Federal Rules of Civil Procedure, thearbitrator shall be required to provide in writing to the parties the basis forthe award or order of such arbitrator, and a court reporter shall record allhearings, with such record constituting the official transcript of suchproceedings. The arbitrator shall award reasonable attorney’s fees, costs, andnecessary disbursements in addition to any other relief to which the arbitratordetermines a party to be entitled. Each of the parties to this Agreementconsents to personal jurisdiction for any equitable action sought in the U.S.District Court for the District of Columbia or any court of the District ofColumbia having subject matter jurisdiction.
 
INWITNESS WHEREOF, the parties have executed this as ofthe date first above written.
 
MILLENNIUMCELL INC.:
By:                                             
Name:                                         
Title:                                            
THEDOW CHEMICAL COMPANY:
 
By:                                              
Name:                                         
Title:                                            
 

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