Unassociated Document


    CONFIDENTIAL
      INFORMATION, NONCOMPETITION

    AND
      INVENTION ASSIGNMENT AGREEMENT

     

    In
      consideration of my being employed by HydroGen, L.L.C., any of its affiliates,
      or any of their respective successors or assigns (collectively, the "Company"),
      I agree to the following, intending to be legally bound:

     

    1.  At-Will
      Employment.
      I
      understand and acknowledge that my employment with the Company is for an
      unspecified duration and constitutes "at-will" employment. My employment may
      be
      terminated at any time by either me or the Company, for any or no reason, with
      or without cause or notice.

     

    2.  Best
      Efforts.
      While
      employed by the Company, I shall devote my best efforts, and all of my working
      time and attention to the interests of the Company, shall faithfully perform
      all
      duties from time to time assigned to me and shall conform to all of the
      Company’s requirements for proper business conduct.

     

    3.  Confidential
      Information.

     

    (a)  Company
      Information.
      I agree
      at all times during the term of my employment and thereafter, to hold in
      strictest confidence, and not to use, except for the benefit of the Company,
      any
      Confidential Information of the Company. I understand that "Confidential
      Information" means any Company proprietary or confidential information,
      technical data, trade secrets or know-how, including, but not limited to,
      research, product plans, products, services, customer lists and customers
      (including, but not limited to, customers of the Company on whom I call or
      with
      whom I become acquainted during the term of my employment), customer contacts,
      customer purchasing practices, markets, software, developments, inventions,
      processes, formulas, technology, designs, drawings, engineering, marketing,
      distribution and sales methods and systems, sales and profit figures, finances,
      personnel information including but not limited to regarding compensation,
      skills and duties, and other business information that I learn of, obtain,
      or
      that is disclosed to me during the course of my employment, either directly
      or
      indirectly, in writing, orally or by drawings or inspection of documents or
      other tangible property. However, Confidential Information does not include
      any
      of the foregoing items which has been made generally available to the public
      and
      become publicly known through no wrongful act of mine. 

     

    (b)  Former
      Employer Information.
      I agree
      that I will not, during my employment with the Company, improperly use or
      disclose any proprietary information or trade secrets of any former or
      concurrent employer or other person or entity, if any, with whom I have an
      agreement or duty to keep such information or secrets confidential, if any,
      and
      that I will not bring onto the premises of the Company any unpublished document
      or proprietary information belonging to any such employer, person or entity
      unless consented to in writing by such employer, person or entity.

     

    (c)  Third
      Party Information.
      I
      recognize that the Company has received and in the future will receive from
      third parties (including customers of the Company) their confidential or
      proprietary information subject to a duty on the Company's part to maintain
      the
      confidentiality of such information and to use it only for certain limited
      purposes. I agree to hold all such confidential or proprietary information
      in
      the strictest confidence and not to disclose it to any person or entity or
      to
      use it except as necessary in carrying out my work for the Company, consistent
      with the Company's agreement with such third party.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    4.  Inventions.

     

    (a)  Inventions
      Retained and Licensed.
      I have
      attached hereto, as Attachment "A", a list describing all inventions, original
      works of authorship, developments, improvements, and trade secrets which were
      made by me prior to my employment with the Company (collectively referred to
      as
      "Prior Inventions"), which belong to me, which relate to the Company's proposed
      business, products or research and development, and which are not assigned
      to
      the Company hereunder; or, if no such list is attached, I represent that there
      are no such Prior Inventions. If in the course of my employment with the
      Company, I incorporate into a Company product, process or machine a Prior
      Invention owned by me or in which I have an interest, the Company is hereby
      granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
      worldwide license to make, have made, modify, use and sell such Prior Invention
      as part of or in connection with such product, process or machine.

     

    (b)  Assignment
      of Inventions.
      I agree
      that I will promptly make full written disclosure to the Company, will hold
      in
      trust for the sole right and benefit of the Company, and hereby assign to the
      Company, or its designee, all my right, title, and interest in and to any and
      all inventions, original works of authorship, developments, concepts,
      improvements or trade secrets, whether or not patentable or registrable under
      copyright or similar laws, which I may solely or jointly conceive or develop
      or
      reduce to practice, or cause to be conceived or developed or reduced to
      practice, from the date my employment with the Company commenced until my
      cessation of employment with the Company (collectively referred to as
      "Inventions"), including any and all intellectual property rights inherent
      in
      the Inventions and appurtenant thereto including, without limitation, all patent
      rights, copyrights, trademarks, know-how and trade secrets (collectively
      referred to as "Intellectual Property Rights"). I further acknowledge that
      all
      original works of authorship which are made by me (solely or jointly with
      others) within the scope of my employment and which are protectable by copyright
      are "works made for hire," as that term is defined in the United States
      Copyright Act.

     

    (c)  Maintenance
      of Records.
      I agree
      to keep and maintain adequate and current records of all Inventions made by
      me
      (solely or jointly with others) during the term of my employment with the
      Company. The records will be in the form of notes, sketches, drawings, and
      any
      other format that may be specified by the Company. The records will be available
      to and remain the sole property of the Company at all times.

     

    (d)  Patent
      and Copyright Registrations.
      I agree
      to assist the Company, or its designee, at the Company's expense, in every
      proper way to secure the Company's rights in the Inventions and any Intellectual
      Property Rights related thereto in any and all countries, including the
      disclosure to the Company of all pertinent information and data with respect
      thereto, the execution of all applications, specifications, oaths, assignments
      and all other instruments which the Company shall deem necessary in order to
      apply for and obtain such rights and in order to assign and convey to the
      Company the sole and exclusive right, title and interest in and to such
      Inventions and any Intellectual Property Rights relating thereto. I further
      agree that my obligation to execute or cause to be executed, when it is in
      my
      power to do so, any such instrument or papers shall continue after the
      termination of this Agreement. If the Company is unable because of my mental
      or
      physical incapacity or for any other reason to secure my signature to apply
      for
      or to pursue any application for any United States or foreign Intellectual
      Property Right covering Inventions assigned to the Company as above, then I
      hereby irrevocably designate and appoint Company and its duly authorized
      officers and agents as my agent and attorney in fact, to act for and in my
      behalf and stead to execute and file any such applications and to do all other
      lawfully permitted acts to further the prosecution and issuance of letters
      patent, or copyright, trademark or other registrations thereon with the same
      legal force and effect as if executed by me.

     

    
      
        
        

      

      
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    5.  Noncompetition,
      Nonsolicitation, Etc.

     

    (a)  During
      my
      employment with the Company and for the periods set forth below after the
      termination of my employment with Corporation for any reason whatsoever, I
      shall
      not, directly or indirectly:

     

    (i)  a
      period
      of eighteen (18) months after such termination, on my own behalf or in the
      service or on behalf of others, solicit, encourage, recruit or attempt to
      persuade any person to terminate such person's employment with the Company,
      whether or not such person is a full-time employee or whether or not such
      employment is pursuant to a written agreement or is at-will.

     

    (ii)  for
      a
      period of one (1) year after such termination, employ or establish a business
      relationship with, or encourage or assist any person or entity to employ or
      establish a business relationship with, any individual who was employed by
      the
      Company during the preceding twelve month period in the design, development,
      invention, implementation, application, manufacture, production, marketing,
      sale
      or license of medium and high temperature fuel cell power plants for
      applications greater than 1MW.

     

    (iii)  for
      a
      period of one (1) year after such termination, direct or do any act or thing
      which may interfere with or adversely affect the relationship (contractual
      or
      otherwise) of the Company with any person or entity that is a Customer,
      Prospective Customer, vendor or contractor of the Company, or otherwise induce
      or attempt to induce any such person or entity to cease doing business, reduce
      or otherwise limit its business with the Company.

     

    (iv)  for
      a
      period of one (1) year from such termination, solicit business from any Customer
      or Prospective Customer, or do business with any Customer of the Company in
      the
      design, development, invention, implementation, application, manufacture,
      production, marketing, sale or license of medium and high temperature fuel
      cell
      power plants for applications greater than 1MW.

     

    (v)  for
      a
      period of one (1) year after such termination, directly or indirectly, engage
      in
      or be associated with (as a principal, agent, consultant, partner, director,
      officer, employee, stockholder, investor or otherwise) any person or entity
      that
      directly or indirectly, engages in or plans to engage in, the design,
      development, invention, implementation, application, manufacture, production,
      marketing, sale or license of medium and high temperature fuel cell power plants
      for applications greater than 1MW. I am prohibited from engaging in or being
      associated with (as described above) any person or entity that engages in or
      plans to engage in the activities described in this subsection (v) in any state
      in the continental United States, the United Kingdom, the Netherlands, Germany,
      France, Belgium, Switzerland, Austria and Italy, as well as in any other state
      or foreign country in which the Company does business or is planning to do
      business. 

     

    
      
        
        

      

      
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    (b)  For
      purposes of subparagraph (a) above, (i) "Customer" shall mean those persons
      or entities for whom or which the Company performed services or to whom or
      which
      the Company sold or licensed its products, during the twelve months preceding
      the cessation of my employment, and (ii) "Prospective Customer" shall mean
      persons or entities whose business was solicited by the Company during the
      twelve months preceding the cessation of my employment.

     

    (c)  I
      acknowledge and agree that (i) the Company does business and/or plans to conduct
      business throughout the continental Unites States and in Western Europe, (ii)
      the Confidential Information that I learn of, obtain, or that is disclosed
      to me
      during the course of my employment, is capable of being used anywhere in the
      world to compete against the Company in the markets in which it does business
      and/or plans to conduct business; (iii) the covenants set forth in Sections
      3,
      4, 5 and 6 of this Agreement are reasonable and necessary in order to protect
      the legitimate interests of the Company and I am receiving adequate
      consideration hereunder; (iv) the Company will not have any adequate remedy
      at
      law if I violate the terms hereof or fails to perform any of my obligations
      under Sections 3, 4, 5 and 6 of this Agreement; and (v) the Company shall have
      the right, in addition to any other rights either may have under applicable
      law,
      to obtain from any court of competent jurisdiction preliminary and permanent
      injunctive relief to restrain any breach or threatened breach of, or otherwise
      to specifically enforce any such covenant or any other obligations of Employee
      under this Sections 3, 4, 5 and 6 of this Agreement, as well as to obtain
      damages and an equitable accounting of all earnings, profits and other benefits
      arising from such violation, which rights shall be cumulative and in addition
      to
      any other rights or remedies to which the Company may be entitled.

     

    (d)  If
      the
      period of time or scope of any restriction set forth in this Agreement should
      be
      adjudged unreasonable in any proceeding, then the period of time shall be
      reduced by such number of months or the scope of the restriction shall be
      modified, or both, by a court of competent jurisdiction so that such
      restrictions may be enforceable for such time and in the manner to the fullest
      extent adjudged to be reasonable. If I violate any of the restrictions contained
      in subparagraph (a) above, then the restrictive period shall not run in my
      favor
      from the time of the commencement of any such violation until such time as
      such
      violation shall be cured by me.

     

    6.  Returning
      Company Documents and Property.
      I agree
      that, at the time of leaving the employ of the Company, or earlier upon request,
      I will deliver to the Company (and will not keep in my possession or deliver
      to
      anyone else) any and all records, data, notes, reports, information, proposals,
      lists, correspondence, emails, specifications, drawings, blueprints, sketches,
      materials, other documents, or reproductions or copies (including but not
      limited to on computer discs or drives) of any aforementioned items either
      developed by me pursuant to my employment with the Company or otherwise relating
      to the business of the Company, retaining neither copies nor excerpts thereof.
      I
      also agree that, at the time of leaving the employ of the Company, or earlier
      upon request, I will deliver to the Company all Company property in my
      possession, including cell phones, computers, computer discs, drives and other
      equipment or devices and that if I fail to do so the Company may withhold from
      my compensation the replacement cost of Company property I have not returned.
      I
      agree to sign and deliver to the Company the Company's form of "Termination
      Certification" certifying my compliance with this Section 5. 

     

    
      
        
        

      

      
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    7.  Arbitration
      and Equitable Relief.

     

    (a)  Arbitration.
      In
      order to obtain the many benefits of arbitration over court proceedings,
      including speed of resolution, lower costs and fees and more flexible rules
      of
      evidence, I agree that all disputes (except those relating to unemployment
      compensation or workers compensation, and except as provided in paragraph 7(b)
      below) arising out of my employment or concerning the interpretation or
      application of this Agreement or its subject matter (including without
      limitation those relating to workplace discrimination and/or harassment on
      any
      basis, whatsoever, including but not limited to age, race, sex, religion,
      national origin, disability or perceived disability, as well as any claimed
      violation of any federal, state or local law, regulation or ordinance, such
      as
      Title VII of the Civil Rights Act, the Age Discrimination in Employment Act,
      the
      Americans with Disabilities Act and their state and local counterparts, if
      any,
      including but not limited to any claims of retaliation thereunder) shall be
      resolved exclusively by binding arbitration at a location in reasonable
      proximity to my last place of employment with the Company, pursuant to the
      National Rules for the Resolution of Employment Disputes of the American
      Arbitration Association. The
      parties expressly waive their rights to have any such claim resolved by jury
      trial. The Company shall bear the cost of the Arbitrator's fee. The Company
      shall initially bear its filing fees, as well as my filing fees in excess of
      $75.00 upon my written request to the Company's President. The decision, in
      the
      Arbitrator's discretion, may award all or some of my or the Company's attorneys
      fees and costs, including filing fees, in addition to any such awards required
      by law. Arbitration must be demanded within three hundred (300) days of the
      time
      when the demanding party knows or should know of the events giving rise to
      the
      claim. The decision of the Arbitrator shall be in writing and set forth the
      findings and conclusions upon which the decision is based. Notwithstanding
      the
      foregoing, the requirement to arbitrate does not apply to the filing of a claim
      with a federal, state or local administrative agency. The decision of the
      Arbitrator shall be final and binding and may be enforced under the terms of
      the
      Federal Arbitration Act (9 U.S.C. Section 1 et seq.), but may in addition be
      set
      aside or modified by a reviewing court in the event of a material error of
      law.
      Judgment upon the award may be entered, confirmed and enforced in any federal
      or
      state court of competent jurisdiction.

     

    (b)  Equitable
      Remedies.
      I agree
      that it would be impossible or inadequate to measure and calculate the Company's
      damages from any breach of the covenants set forth in Sections 2, 3, 5 and
      6 of
      this Agreement. Accordingly, I agree that if I breach or threaten to breach
      any
      of such covenants, the Company will have available, in addition to any other
      right or remedy available, the right to obtain injunctive and equitable relief
      of any type from a court of competent jurisdiction, including but not limited
      to
      restraining such breach or threatened breach and to specific performance of
      any
      such provision of this Agreement. I further agree that no bond or other security
      shall be required in obtaining such equitable relief and I hereby consent to
      the
      issuance of such injunction and to the ordering of specific
      performance.

     

    
      
        
        

      

      
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    8.  General
      Provisions.

     

    (a)  Governing
      Law and Forum.
      This
      Agreement shall be governed by and interpreted in accordance with the laws
      of
      Pennsylvania, the location of the Company's headquarters, where this Agreement
      shall be entered into, without giving effect to any conflict of laws provisions.
      Any
      court
      action instituted by me or on my behalf relating in any way to this Agreement
      or
      my employment with the Company shall be filed exclusively in federal or state
      court in the County of Allegheny, State of Pennsylvania and I consent to the
      jurisdiction and venue of these courts in any action instituted by the Company
      against me. 

     

    (b)  Entire
      Agreement.
      This
      Agreement and the Offer of Employment Letter, set forth the entire agreement
      and
      understanding between the Company and me, and merges all prior discussions
      between us. No modification of or amendment to this Agreement, nor any waiver
      of
      any rights under this agreement, will be effective unless in writing signed
      by
      me and the Company’s Chief Executive Officer, President or Chief Operating
      Officer. Any subsequent change or changes in my duties, salary or compensation
      will not affect the validity or scope of this Agreement.

     

    (c)  Severability.
      If any
      provision of this Agreement or application thereof to anyone or under any
      circumstances is adjudicated to be invalid or unenforceable by an arbitrator
      or
      court of competent jurisdiction, such invalidity or unenforceability shall
      not
      affect any other provision or application of this Agreement which can be given
      effect without the invalid or unenforceable provision or application and shall
      not invalidate or render unenforceable such provision or application in any
      other jurisdiction.

     

    (d)  Successors
      and Assigns.
      This
      Agreement will be binding upon my heirs, executors, administrators and other
      legal representatives and may be assigned by the Company and its successors
      without my consent.

     

    9.  Representations
      and Warranties.
      I
      represent and warrant that I am not under any obligations to any third party
      which prohibits, restricts or could interfere in any way with the performance
      of
      my duties as an employee of the Company and that my employment with Company
      will
      not breach any agreement by which I am bound, including, without limitation,
      with any of my former employers. I represent and warrant that there are no
      legal
      or contractual impediments to me being able to fully undertake any work on
      behalf of the Company, including but not limited to agreements not to compete.
      Any and all agreements I have entered into either with any former employers
      or
      which could apply in any way to my activities during my employment with the
      Company are listed in attachment "B" to this Agreement. 

     

    10.  Employee
      Acknowledgement.
      I
      acknowledge and agree (i) that I have had the opportunity to consult with
      independent counsel of my own choice concerning this Agreement and has been
      advised to do so by the Company, and (ii) that I have read and understand
      the Agreement, am fully aware of its legal effect, and have entered into it
      freely based on my own judgment.

     

    
      
        
        

      

      
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    Date:
      11/10/07

     

    /s/
      John J. Freeh

    Signature

     

    John
      J. Freeh

    Name
      of
      Employee (typed or printed)

     

    /s/
      Christopher J. Garofalo

    Witness

     

    
      
        
        

      

      
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    ATTACHMENT
      A

     

    
      
        
        

      

      
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    ATTACHMENT
      B

     

    
      
        
        

      

      
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