Exhibit 10.44
H POWER CORP.
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May 16, 2000
ECO Fuel Cells, LLC
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Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: BOARD REPRESENTATION
Dear ▇▇. ▇▇▇▇▇▇▇▇▇:
Reference is made to the Stock Purchase Agreement (the "Agreement"),
dated as of August 25, 1999, between H Power Corp. ("H Power") and ECO Fuel
Cells, LLC ("ECO"). This letter shall confirm H Power's and ECO's agreement that
the provisions relating to ECO's right to representation on the Board of
Directors of H Power contained in Sections 6.1 and 6.3 of the Agreement be
amended to read in its entirety as follows;
"6.1 REPRESENTATION ON THE BOARD OF DIRECTORS.
(a) For so long as ECO owns, in the aggregate, at least 3% of the
outstanding shares of common stock of H Power, ECO shall be entitled to
designate one director on the management slate of nominees to H Power's Board of
Directors (the "ECO Designee"). At least 90 days prior to each annual meeting of
stockholders at which an ECO Designee will stand for election, ECO shall provide
written notice to H Power indicating the ECO Designee to be nominated by ECO at
such annual meeting, and such notice shall set forth as to such person proposed
for nomination all information relating to such persons that is required to be
disclosed in solicitations of proxies for election of directors pursuant to
Regulation 14A under the Exchange Act (including such person's written consent
to being named in the related proxy statement as a nominee and to serving as a
director if elected).
(b) Subject to compliance with applicable law, H Power shall at
all times take such action as is necessary to ensure that the nominating
committee of the Board of Directors (or the full Board if there is no nominating
committee) of H Power shall nominate and recommend to the stockholders of H
Power that the stockholders elect the ECO Designee to the Board of Directors. H
Power shall not nominate and recommend to the shareholders more nominees than
there are Board positions available to be filled. As a condition precedent to
the inclusion of any ECO Designee on any slate of nominees to be recommended to
stockholders by the Board of Directors pursuant to Section 6.01(a), the
nominating committee of the Board (or the full Board if there is no nominating
committee) may review the information provided pursuant to Section 6.01(a) to
evaluate in good
faith such ECO Designee's character and fitness to serve as a director. If the
nominating committee (or the full Board if there is no nominating committee)
determines in good faith that any such ECO Designee lacks the character or
fitness to serve as a director based on applicable legal and reasonable
commercial standards, the nominating committee (or the full Board if there is no
nominating committee) shall inform ECO of such determination, and ECO shall then
have the right to propose an alternative ECO Designee who is reasonably
acceptable to the Company. The ECO Designees elected to the Board of Directors
shall receive, during the period in which they serve, any and all benefits
(including, without limitation, any director compensation and grants of stock
options under any non-employee director plan of H Power) provided to the other
members of the Board of Directors of H Power. If at any time ECO's nominee is
not on the Board for any reason, ECO shall have the right to designate one
director to fill any vacancy on the Board, and the Board will designate such
person to fill the vacant position until the next shareholders meeting at which
such vacancy will be filled.
6.3 [Intentionally omitted]"
Kindly acknowledge your agreement to the foregoing by signing this
letter in the space provided below and returning the same to the undersigned.
This letter agreement shall take effect upon the consummation of an
initial public offering of H Power common stock (IPO); provided, however, that
if the IPO is not consummated within a period of two years from the date of this
letter, this letter agreement shall be of no force and effect.
Very truly yours,
H POWER CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
_________________________________
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Chief Financial Officer
ACCEPTED AND AGREED:
ECO FUEL CELLS, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and C.E.O.