Unassociated Document


     

    November
      10, 2007

     

     

    John
      J.
      Freeh

    5997
      Vera
      Cruz Road

    Center
      Valley, PA 18034

    


     

    Dear
      John:

     

    On
      behalf
      of the Compensation Committee of HydroGen Corporation, I am very pleased to
      confirm the details of our offer to you for employment in the position of Chief
      Executive Officer of HydroGen, LLC (the “Company” or the “LLC”) . The
      terms
      of this offer are as follows:

     

    As
      of
      your starting date, November 10, 2007, your employment at HydroGen will include
      the following:

     

    Position

     

    You
      will
      be employed in the position of Chief Executive Officer, reporting to the Board
      of Directors. You will also serve as Chief Executive Officer of HydroGen
      Corporation (“HydroGen”), but as an employee of the Company. Your assignment is
      on a full-time basis with the understanding that your occasional participation
      in other professional activities such as those related to board of director
      memberships or charitable organizations is permissible. 

     

    Compensation

     

    • Annual
      base salary of $300,000, paid in bi-weekly installments, and prorated from
      your
      date of hire. Because this position is classified as Exempt, you will
      not
      be
      eligible for overtime pay. HydroGen’s Compensation Committee of the Board of
      Directors (the “Compensation Committee”) understands that additional
      compensation may be required should it become necessary to establish longer
      term
      accommodations in a different location than your current one. At such time,
      the
      Compensation Committee agrees to negotiate a mutually satisfactory arrangement,
      including the reimbursement for relocation expenses. 

     

    • Annual
      bonus targeted at 70% of base salary (“Annual Bonus”), the amount of which will
      be based upon the achievement of corporate and individual performance goals
      to
      be determined by the Compensation Committee. The Annual Bonus, if any, will
      be
      paid as soon as practicable after the end of each calendar year, provided
      employment has not been terminated prior to the end of the calendar year to
      which the Annual Bonus relates. 

     

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    We
      will
      re-evaluate your compensation arrangements from time to time in light of your
      performance and our business needs and may make modifications as we deem
      warranted. Any modification in compensation must be approved by the Compensation
      Committee.

     

    Option
      Grant

     

    • You
      will
      be granted the right and option (the “Option”) to purchase all or any part of an
      aggregate of 607,244 shares of the authorized but unissued shares of the
      Company’s common stock, par value $0.001 per share (“Common Stock”), which
      represents 4% of the fully-diluted issued and outstanding shares of the Company.
      The Option shall be governed by and become exercisable, subject to the terms
      and
      conditions of the Company’s Stock Option Plan and a Stock Option Agreement to be
      entered into between you and the Company, as follows: one-third shall become
      exercisable one year after the date of grant,, one-third shall become
      exercisable two-years from the date of grant and the remaining one-third shall
      become exercisable three-years from the date of grant. The exercise price of
      the
      Option shall be the closing price of the Common Stock on your start date or,
      if
      not a business day, the closing price of the Common Stock on the next business
      day. 

     

    Benefits
      and perquisites 

     

    • You
      will
      be eligible on your date of hire for the Company's benefits program in
      accordance with our Company policies as contained in the enclosed Employee
      Handbook. 

     

    • Notwithstanding
      the Employee Handbook, you shall be entitled to twenty-five (25) days of
      vacation for each calendar year, accrued monthly at the rate of 2.083 days.
      Your
      vacation benefits shall otherwise be in accordance with the Employee Handbook.
      

     

    • You
      also
      may be eligible as of the first day of the month following your start date
      for
      HydroGen's package of medical and dental coverage for which we pay a portion
      of
      the cost. A summary of these benefits is contained in the attached Benefits
      Summary. 

     

    • You
      also
      may be eligible as of the first day of the month following thirty days after
      your start date for long-term disability and life insurance up to $150,000.
      A
      summary of these benefits is also contained in the attached Benefits Summary.
      

     

    Your
      eligibility for benefits is subject to the terms and conditions in the
      applicable policy or plan. Nothing in this letter should be construed as a
      guarantee of any particular level of benefits or of your participation in any
      benefit plan. The Company reserves the right to amend or terminate all benefits
      and compensation plans in effect from time to time.

     

    • You
      will
      be provided with a dedicated administrative assistant as necessary to facilitate
      your duties as Chief Executive Officer. 

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

    


     

    Nomination
      to the Board of Directors

     

    To
      the
      extent consistent with the Nominating Committee of the Board of Director’s
      fiduciary responsibilities and its by-laws, the Nominating Committee will
      nominate you for election by the shareholders of HydroGen as a director so
      long
      as you continue to serve as Chief Executive Officer of HydroGen. 

     

    “At-will”
      Employment

     

    If
      you
      accept our offer of employment, your employment will be “at-will.” As an
“at-will” employee, you can terminate your employment at any time, for any
      reason, with or without prior notice, and the Company has the same right. Please
      understand also that neither this offer, nor the maintenance of any personnel
      policies, procedures and benefits, constitutes a contract of employment or
      guarantee of specific benefits. 

     

    Termination

     

    The
      following definitions shall apply: 

     

    “Cause”
      shall mean (i) the breach of any fiduciary duty owed to the Company; (ii) a
      conviction of or a no contest plea to a felony offense or possession of illegal
      narcotics; (iii) habitual drunkenness or use of illegal drugs; (iv) your total
      disability for more than 6 months; and/or (v) illegal conduct or gross
      misconduct, in either case that is willful and results in material and
      demonstrable damage to the business or reputation of the Company. 

     

    “Change
      of Control” shall mean the occurrence of any of the following events:


     

    any
      reorganization, consolidation or merger of HydroGen, LLC (the “LLC”) or other
      similar transaction that results in at least 50% of the combined voting power
      of
      the outstanding securities of the continuing, surviving or other entity not
      directly or indirectly owned by holders of at least 50% of the combined voting
      power of the LLC’s securities outstanding immediately prior to such
      reorganization, consolidation, merger or other similar transaction; provided,
      however, that for purposes of this subsection (i) a Change of Control shall
      not
      be deemed to have occurred if such Change of Control results from a transaction
      solely among HydroGen, the LLC, or any other wholly-owned subsidiary of
      HydroGen; 

     

    any
      reorganization, consolidation or merger of HydroGen or other similar transaction
      that results in at least 50% of the combined voting power of the outstanding
      securities of the continuing, surviving or other entity is not directly or
      indirectly owned by holders of at least 50% of the combined voting power of
      HydroGen's securities outstanding immediately prior to such reorganization,
      consolidation, merger or other similar transaction;

     

    any
      sale,
      lease, exchange or transfer (in one transaction or in a series of related
      transactions) of all or substantially all of the assets of the LLC;


     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    approval
      by the Member or Members of the LLC of any plan or proposal for the liquidation
      or dissolution of the LLC, unless such plan or proposal is abandoned within
      60
      days following such approval; 

     

    any
      “Person” (as such term is used in Sections 13(d) and 14(d)(2) of the Securities
      Exchange Act of 1934 (the “Exchange Act”) shall become the beneficial owner
      (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
      securities of HydroGen representing more than 50% of the combined voting power
      of HydroGen's then outstanding securities having the right to vote in the
      election of directors; or

     

    any
      “Person” (as such term is used in Sections 13(d) and 14(d)(2) of the Exchange
      Act), other than HydroGen, shall become the beneficial owner (within the meaning
      of Rule 13d-3 promulgated under the Exchange Act) of securities of the LLC
      representing more than 50% of the combined voting power of the LLC’s then
      outstanding securities.

     

    “Good
      Reason” shall mean (i) the assignment of any duties inconsistent in any material
      respect with the services typical of a Chief Executive Officer; (ii) any other
      action by the Company that results in a material diminution in your position
      or
      authority, duty, title, responsibilities, or reporting requirements; (iii)
      any
      reduction in your annual salary; and (iv) any material failure by the Company
      to
      pay any compensation due to you within 30 days after such compensation is due
      unless otherwise stated. Before you may terminate for Good Reason, you must
      give
      the Company written notice of any condition given rise to the reason
      constituting “Good Reason” as described in (i) through (iii) in the preceding
      sentence and allow the Company 30 days to cure any such condition so noticed.
      

     

    Payments
      Following Termination of Employment.

     

    All
      Terminations.
      Regardless of the reason for termination of employment and regardless of whether
      termination is by the Company or you, the Company shall pay you: (i) the full
      amount of any accrued but unpaid salary as of the date of termination; (ii)
      any
      accrued but unpaid Annual Bonus respecting any completed calendar year ending
      prior to the date of termination; and (iii) any accrued but unreimbursed travel
      expenses.

     

    Termination
      by the Company without Cause or by You for Good Reason.
      If the
      Company terminates you without Cause (but not due to your death) or if you
      terminate your employment with Good Reason, the Company shall pay you (in
      addition to the amounts described above under “All Terminations”): (i) one (1)
      year of annual salary to be paid over time as if your employment had not been
      terminated; and (ii) a pro-rated Annual Bonus for the calendar year in which
      the
      employment is terminated calculated by assuming full achievement of all of
      your
      personal goals and by determining the Company’s actual achievement of its goals
      and multiplying the amount of the Annual Bonus you would have received based
      on
      this formula by a fraction, the numerator of which is the number of days in
      the
      calendar year through the date of termination and the denominator of which
      is
      365, to be paid on the date during the following calendar year on which
the
      Annual Bonus payment would otherwise have been made. In addition, the Company
      shall pay the percentage of the premium it would have paid had you remained
      employed, for the continuation of your health and dental insurance coverage
      under COBRA, subject to your election of and eligibility for coverage under
      COBRA's terms and conditions, for a period of one year from the date of
      termination.  

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    Termination
      on a Change in Control.
      If
      within six (6) months prior (provided that there is evidence of discussions
      of a
      potential change of control within this six month period of time) to or within
      one (1) year following a Change of Control, your employment is terminated
      without Cause or for Good Reason: (i) the Company shall, in addition to any
      other payments of salary or lump sum salary due to you connection with your
      cessation of employment, provide you with a lump sum payment equal to 1.5 times
      your then applicable annual base pay; (ii) the Company shall, in lieu of any
      Annual Bonus due in connection with your cessation of employment, pay you an
      amount representing the Annual Bonus for the year of termination based on full
      achievement of all personal targets, plus the actual achievement of Company
      targets, as well as pay any prior year's bonus that is earned and unpaid as
      of
      the date of termination; and (iii) notwithstanding any provision in any
      applicable stock incentive plan document or award agreement, each stock option,
      restricted stock or other equity or equity-based award granted by HydroGen,
      LLC
      (the “LLC”) or the Company, to the extent such award is outstanding and unvested
      as of the date of such Change in Control, shall automatically become fully
      vested as of such Change of Control and shall become exercisable by you in
      accordance with the terms of the agreement or agreements under which such
      options were granted.

    


    For
      purposes of determining whether a termination is for Cause or Good Reason in
      the
      event of a Change of Control, the definitions of these terms in this offer
      letter shall apply, except that the word “material” shall be removed in each
      instance from the definition of Good Reason.

    


    If,
      at
      the time the Change of Control occurs, Section 280G(b) of the Internal Revenue
      Code of 1986, as amended (the “Code”) is applicable to you, notwithstanding any
      other provision of this offer letter, if the aggregate present value of the
      “parachute payments” to you, determined under Section 280G(b) is at least three
      times the “base amount” determined under such Section 280G, then the
      compensation otherwise payable under this offer letter (and any other amount
      payable hereunder or any other agreement, plan, program, policy or obligation
      of
      the the LLC, HydroGen or any other affiliate thereof) shall be reduced so that
      the aggregate present value of the parachute payments to you determined under
      Section 280G, does not exceed 2.99 times the base amount. In no event, however,
      shall any benefit provided hereunder be reduced to the extent such benefit
      is
      specifically excluded by Section 280G(b) of the Code as a “parachute payment” or
      as an “excess parachute payment.” Any decisions regarding the requirement or
      implementation of such reductions shall be made by the tax counsel and
      accounting firm retained by the LLC at as of the date of this offer
      letter.

    


    You
      shall
      receive the payments and vesting of unvested options described above under
      “Termination by the Company without Cause or by you for Good Reason” and
“Termination on a Change of Control” if and only if (i) you execute, return
      to the Company during the time period specified by the Company (and do not
      revoke if a revocation period is included in the Company’s sole discretion) a
      termination agreement (“Termination Agreement”) satisfactory to the Company in
its
      sole
      discretion, which shall include a general release of any and all claims against
      the Company or HydroGen and any other persons or entities designated by the
      Company (collectively "Releasees"), and, in the Company’s sole discretion,
      provisions requiring you not to disparage the Releasees, not to use or disclose
      information deemed confidential by the Company, to reasonably cooperate with
      the
      Company in transitioning business matters and handling claims and litigation;
      and (ii) you comply with all of the obligations set forth in the Confidential
      Information, Noncompetition and Invention Assignment Agreement and the
      Termination Agreement.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    In
      the
      event you are considered, for purposes of Section 409A of the Internal Revenue
      Code of 1986, as amended (the “Code”) to be a Specified Employee (as hereinafter
      defined) as of the date your employment with the Company terminates, and you
      are
      entitled to receive payments by reason of such termination of employment, then
      to the extent any such payment is treated for purposes of 

     

    Code
      Section 409A as a payment of nonqualified deferred compensation, such payment
      will be made as soon as practicable following the date that is six months after
      the date of your termination of employment to the extent a six month delay
      in
      payment is required to comply with Code Section 409A(a)(2)(B)(i). For these
      purposes, the term “Specified Employee” shall mean any employee who is a
“specified employee” as that term is defined in Treasury Regulation Section
      1.409A-1(i). 

     

    Our
      offer
      of employment is contingent upon:

     

    • The
      Company’s success in verifying the credentials and other information on your
      Resume provided to us and your providing proof of U.S. citizenship or
      eligibility to work in the United States, as required under the Immigration
      Reform & Control Act. Enclosed are several forms for you to complete and
      bring with you on your first day of employment. Please bring with you two forms
      of identification, as indicated on the back of the I-9 form. 

     

    • The
      Company completing a successful screening check on your criminal record and
      employment credit report.

     

    • You
      must
      sign the enclosed Confidential Information, Noncompetition and Invention
      Assignment Agreement without making any changes. 

     

    Please
      note that, as required of all new employees, you will be asked to complete
      a
      drug test on or about your first day of employment and that your continued
      employment with the Company will be conditioned upon such drug test not
      revealing the use of any illicit drug. Notwithstanding any provision of this
      offer letter to the contrary, any termination of you by the Company due to
      such
      drug test revealing the use of any illicit drug shall be a termination by the
      Company for Cause. 

     


    
      
        -

        
        

      

      
        6

        
          

        

      

      
        
        

      

    


    If
      you
      accept our offer under the terms set forth above, your first day of employment
      will be November
      10, 2007.
      

     

     

    Sincerely,

     

    /s/
      Joshua Tosteson

     

    Joshua
      Tosteson

    President

     

     

    I
      accept this offer:

     

    
      	 	
              /s/
                John J. Freeh

            	 	
              11/10/07

            	 
	 	
              Signature

            	 	
              Start
                Date

            	 
	 	 	 	 	 


    

     

    Encl:  
      W-4,
      I-9

    Benefits
      Summary

    Confidential
      Information, Noncompete Agreement and Invention Assignment
      Agreement

     

     

    
      
        
        

      

      7