Unassociated Document


    CONFIDENTIAL
      INFORMATION, NONCOMPETITION

    AND
      INVENTION ASSIGNMENT AGREEMENT

     

    In
      consideration of the rights and entitlements described in the November 10,
      2007
      Separation Agreement and General Release (“Separation Agreement”) among Blomenco
      B.V. (the “Consultant”) HydroGen L.L.C. (the “Company”) and Leo Blomen (“Mr.
      Blomen”), Consultant and Mr. Blomen agree to the following, intending to be
      legally bound: 

     

    1.  Confidential
      Information.

     

    (a)  Company
      Information.
      Consultant and Mr. Blomen agree at all times during the term of their consulting
      arrangement with the Company and thereafter, to hold in strictest confidence,
      and not to use, except for the benefit of the Company, any Confidential
      Information of the Company. They 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 Consultant and/or Mr. Blomen calls or with
      whom
      they become acquainted during the term of their consulting arrangement),
      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
      they learn of, obtain, or that is disclosed to them during the course of their
      consulting relationship, 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 Consultant and/or Mr. Blomen, or any information known to Mr.
      Blomen prior to or outside of his affiliation with the Company that does not
      relate to Prior Inventions, Inventions or Intellectual Property Rights as
      defined below.

     

    (b)  Former
      Employer Information.
      Consultant and Mr. Blomen agree that they will not, during their consulting
      relationship with the Company, improperly use or disclose any proprietary
      information or trade secrets of any other person or entity, if any, with whom
      Consultant and/or Mr. Blomen have an agreement or duty to keep such information
      or secrets confidential, if any, and that they will not bring onto the premises
      of the Company any unpublished document or proprietary information belonging
      to
      such other person or entity unless consented to in writing by such person or
      entity.

     

    (c)  Third
      Party
      Information.
      Consultant and Mr. Blomen 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. Consultant and Mr. Blomen 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 their work for the Company, consistent with the Company’s agreement with
      such third party.

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    2.  Inventions.

     

    (a)  Inventions
      Retained and Licensed.
      Consultant and Mr. Blomen assign to the Company  all world-wide
      rights, title and interest in any and all inventions, original works of
      authorship, developments, improvements, and trade secrets which were made by
      either or both of them from May 3, 2001 to the date of this Agreement,
      which relate in any way to the Company’s business, products or research and
      development, or proposed business, products, research or development, including
      but not limited to any patents filed or issued before or after the date of
      this
      Agreement  (collectively referred to as “ Assigned Prior Inventions”).
  Consultant and Mr. Blomen grant to the Company an exclusive (including as
      to Mr. Blomen and Blomenco), perpetual, irrevocable, assignable, transferable,
      world-wide royalty free license in the Company's Industry of any and all
      inventions, original works of authorship, developments, improvements, and trade
      secrets which were made by either or both of them prior to May 3,
      2001, which relate in any way to the Company’s business, products or
      research and development, or proposed business, products, research or
      development, including but not limited to any patents filed or issued before
      or
      after the date of this Agreement  (collectively referred to as
“Licensed Prior Inventions”); provided that such license shall become
      non-exclusive on the later of three years from the date of this Agreement and
      eighteen months from the date of termination of that certain Consulting Services
      Agreement by and among Mr. Blomen, Consultant and the Company. Assigned Prior
      Inventions and Licensed Prior Inventions are referred to collectively as "Prior
      Inventions". Consultant and Mr. Blomen represent and warrant that they have
      not assigned or licensed any Prior Inventions to any person or entity
      other than the Company. As used herein, the "Company's Industry" shall mean
      products, services and technology related in any way to medium and high
      temperature fuel cell power plants for applications greater than 1
      megawatt.  This license includes the use the Prior Inventions for any
      purpose in the Company's Industry, including, without limitation, the right
      to make, have made, use, sell, offer to sell, import, disclose, practice, have
      practiced (including the right to create derivative works), and otherwise
      exploit the Prior Inventions.  The Company shall have the right (but
      not the obligation) to elect to take legal action to enforce its rights in
      the
      event of any infringement, violation or misappropriation by a third party,
      including, without limitation, settlement discussions relating to, and any
      declaratory judgment action arising from, such infringement, violation or
      misappropriation of the Prior Inventions. 

     

    (b)  Assignment
      of Inventions.
      Consultant and Mr. Blomen agree that they 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 their 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 they 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 hereof until the
      cessation of the consulting relationship 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”). Consultant and Mr. Blomen
      further acknowledge that all original works of authorship which are made by
      them
      (solely or jointly with others) within the scope of their consulting
      relationship with the Company and which are protectable by copyright are “works
      made for hire,” as that term is defined in the United States Copyright
      Act.

     

    
      
        
        

      

      
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    (c)  Maintenance
      of Records.
      Consultant and Mr. Blomen agree to keep and maintain adequate and current
      records of all Inventions made by them (solely or jointly with others) during
      the term of their consulting relationship 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.
      Consultant and Mr. Blomen 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. Consultant and Mr. Blomen further agree that their 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
      and/or the Consulting Services Agreement. If the Company is unable because
      of
      Consultant’s or Mr. Blomen’s mental or physical incapacity or for any other
      reason to secure the appropriate 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 Consultant and Mr.
      Blomen hereby irrevocably designate and appoint Company and its duly authorized
      officers and agents as their agent and attorney in fact, to act for and in
      their
      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 Consultant and/or Mr.
      Blomen.

     

    3.  Noncompetition,
      Nonsolicitation, Etc.

     

    (a)  During
      Consultant’s and Mr. Blomen’s consulting relationship with the Company and for
      the periods set forth below after the termination of their consulting
      relationship with the Company for any reason whatsoever, Consultant and Mr.
      Blomen shall not, directly or indirectly:

     

    (i)  for
      a
      period of eighteen (18) months after such termination, on Consultant’s or Mr.
      Blomen’s 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.

     

    
      
        
        

      

      
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    (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
      competition with the Company or contrary to the Company’s
      interests.

     

    (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 one megawatt. Consultant and Mr. Blomen are
      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. 

     

    (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 the consulting relationship, and (ii) “Prospective Customer”
shall mean persons or entities whose business was solicited by the Company
      during the twelve months preceding the cessation of the consulting
      relationship.

     

    (c)  Consultant
      and Mr. Blomen 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 they learn of, obtain,
      or
      that is disclosed to them during the course of the consulting relationship,
      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 1, 2, 3 and 4 of this Agreement are
      reasonable and necessary in order to protect the legitimate interests of the
      Company and Consultant and Mr. Blomen are receiving adequate consideration
      hereunder; (iv) the Company will not have any adequate remedy at law if
      Consultant and/or Mr. Blomen violate the terms hereof or fails to perform any
      of
      my obligations under Sections 1, 2, 3 and 4 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 under Sections 1, 2, 3 and 4 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.

     

    
      
        
        

      

      
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    (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 Consultant and/or Mr. Blomen violates
      any
      of the restrictions contained in subparagraph (a) above, then the restrictive
      period shall not run in their favor from the time of the commencement of any
      such violation until such time as such violation shall be cured by Consultant
      and/or Mr. Blomen.

     

    4.  Returning
      Company Documents and Property.
      Consultant and Mr. Blomen agree that, at the time their consulting relationship
      with the Company ends, or earlier upon request, they will deliver to the Company
      (and will not keep in their 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 Consultant
      and/or Mr. Blomen pursuant to their consulting relationship with the Company
      or
      otherwise relating to the business of the Company that constitute or contain
      Confidential Information, retaining neither copies nor excerpts thereof.
      Consultant and Mr. Blomen also agree that, at the time the consulting
      relationship with the Company ends, or earlier upon request, they will deliver
      to the Company all tangible Company property in their possession, including
      computer discs, drives and other equipment or devices and that if they fail
      to
      do so the Company may withhold from Consultant’s fees the replacement cost of
      Company property Consultant and/or Mr. Blomen have not returned. This paragraph
      4 will not prevent Mr. Blomen from keeping any materials which solely relate
      to
      his knowledge or information prior to coming to the Company, or documents which
      solely relate to his own or Blomenco’s compensation.

     

    5.  General
      Provisions.

     

    (a)  Governing
      Law and Forum.
      This
      Agreement shall be governed by and interpreted in accordance with the laws
      of
      Pennsylvania, without giving effect to any conflict of laws provisions.
Any
      court
      action instituted by Consultant and/or Mr. Blomen or on their behalf relating
      in
      any way to this Agreement or their consulting relationship with the Company
      shall be filed exclusively in federal or state court in the County of Allegheny,
      State of Pennsylvania and Consultant and Mr. Blomen consent to the jurisdiction
      and venue of these courts in any action instituted by the Company against one
      or
      both of them. 

     

    (b)  Entire
      Agreement.
      This
      Agreement, the Separation Agreement and all agreements and exhibits attached
      thereto set forth the entire agreement and understanding between the Company
      and/or HydroGen Corporation with Consultant and/or Mr. Blomen, and merges all
      prior discussions between them. 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 Consultant, Mr. Blomen and the Company’s
      President or Chief Executive Officer. Any subsequent change or changes in
      Consultant’s and/or Mr. Blomen’s duties or fees, or termination of their
      relationship with the Company, will not affect the validity or scope of this
      Agreement.

     

    
      
        
        

      

      
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    (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 Consultant’s successors and on Mr. Blomen’s
      heirs, executors, administrators and other legal representatives. This Agreement
      may be assigned by the Company and its successors without Consultant’s and/or
      Mr. Blomen’s consent, and will be binding upon any successors or assigns of the
      Company or their successors or assigns.

     

    6.  Representations
      and Warranties.
      Consultant and Mr. Blomen represent and warrant that they are not under any
      obligations to any third parties which prohibit, restrict or could interfere
      in
      any way with the performance of their duties as a consultant to the Company
      and
      that their consulting relationship with Company will not breach any agreement
      by
      which either Consultant or Mr. Blomen am bound, including, without limitation,
      with any of Mr. Blomen’s former employers or any other companies with which
      Consultant and/or Mr. Blomen have or have had consulting relationships.
      Consultant and Mr. Blomen represent and warrant that there are no legal or
      contractual impediments to Consultant and Mr. Blomen being able to fully
      undertake any work on behalf of the Company, including but not limited to
      agreements not to compete. 

     

    7.  Acknowledgement.
      Consultant and Mr. Blomen acknowledge and agree (i) that they have had the
      opportunity to consult with independent counsel of their own choice concerning
      this Agreement and has been advised to do so by the Company, and (ii) that
      they have read and understand the Agreement, are fully aware of its legal
      effect, and have entered into it freely based on their own
      judgment.

     

    
      
        
        

      

      
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    BLOMENCO,
      B.V.:

     

    
      
        	 	 	 	 	 
	By:	/s/ Leo Blomen	 	Date:	11/10/07
	 	
                
Leo
                Blomen 	 	 	
                

              


      

       

       

      LEO
        BLOMEN INDIVIDUALLY:

    

    
       

      
        
          	 	 	 	 	 
	
                	/s/ Leo Blomen	 	Date:	11/10/07
	 	
                  
Leo
                  Blomen 	 	 	
                  

                


        

         

      

    

    
      
        
        

      

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