Unassociated Document


    CONSULTING
      SERVICES AGREEMENT

     

    This
      Consulting Services Agreement (“Agreement”) is made as of the 10th day of
      November 2007 by and among HydroGen, L.L.C. (the “Company”), Blomenco B.V. (the
“Consultant”), and Leo Blomen (“Mr. Blomen”).

     

    BACKGROUND

     

    WHEREAS,
      the Company is engaged in the business of manufacturing multi-megawatt fuel
      cell
      systems; and 

     

    WHEREAS,
      Consultant has certain expertise and experience desired by the Company and
      desires to provide services to the Company; and

     

    WHEREAS,
      Mr. Blomen has been providing certain services to the Company through
      Consultant; and

     

    WHEREAS,
      Mr. Blomen owns and controls Consultant and wishes to continue performing
      services to the Company through Consultant as an independent contractor of
      the
      Company; and

     

    WHEREAS,
      the Company, Consultant and Mr. Blomen desire to set forth in this
      Agreement the terms and conditions of their working relationship; and


     

    WHEREAS,
      this Agreement provides Consultant and Mr. Blomen with rights and entitlements
      to which Consultant and Mr. Blomen are not otherwise entitled;


     

    NOW
      THEREFORE, in consideration of the mutual covenants herein contained,
      Consultant, Mr. Blomen and the Company, intending to be legally bound,
      agree as follows:

     

    1.  Recitals.
      The
      foregoing recitals are incorporated by reference as if fully set forth
      herein.

     

    2.  Retention
      of Consultant.
      The
      Company hereby retains Consultant and Consultant hereby agrees to render
      consulting services to the Company pursuant to the terms and conditions
      described in this Agreement. This Agreement shall be effective as of
      November 10, 2007, (the “Effective Date”) ”), so long as the Confidential
      Information, Noncompetition and Inventions Assignment Agreement attached as
      Exhibit “B” to the Separation Agreement and General Release is duly executed by
      Blomenco and Leo Blomen by that date. The twelve month period immediately
      following the Effective Date shall be referred to herein as the “Initial Term”.


     

    3.  Services.
      

     

    (a)  All
      services performed by Consultant pursuant to this Agreement shall be performed
      by Leo Blomen (“Mr. Blomen”). 

     

    (b)  Consultant
      shall provide technical and other consulting services to the Company within
      the
      scope and hours as specifically requested by the Company’s Chief Executive
      Officer (the “Consulting Services”). Consultant shall perform the Consulting
      Services, in light of Consultant’s experience, subject to oversight by the
      Company’s Chief Executive Officer, or in his absence, his delegate.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    (c)  Consultant
      shall perform, upon request, a minimum of 1000 hours of Consulting Services
      during the Initial Term (the “Guaranteed Services”). Any services provided by
      Mr. Blomen as a member of the Board of Directors of HydroGen Corporation
      will not be included in calculating the Guaranteed Services. Travel time shall
      count as 50% of working hours.

     

    (d)  The
      Company may, in its sole discretion, authorize Consultant to perform some or
      all
      of the Guaranteed Services, but shall pay Consultant for the full 1000 hours
      of
      Guaranteed Services, unless payment is not due as provided in Paragraph 8 or
      Paragraph 9(b) below. 

     

    4.  Independent
      Contractor Status.
      

     

    (a)  Consultant
      and Mr. Blomen are independent contractors and not employees of the Company.
      Nothing in this Agreement shall establish an employer-employee relationship
      between the Company and Consultant or between the Company and
      Mr. Blomen.

     

    (b)  It
      is the
      parties intent and understanding that no employment relationship exists between
      Consultant or Mr. Blomen and the Company. Accordingly, neither Consultant
      nor Mr. Blomen will be treated as an employee of the Company for purposes of
      employment taxes, federal and state income tax withholding, social security
      taxes, city and county taxes, employee benefit provisions, workers' compensation
      and state and federal unemployment compensation. Consultant is solely
      responsible for the payment of federal self-employment and all other federal,
      state and local taxes assessed against or otherwise due from Consultant or
      Mr. Blomen, if any, for matters occurring after the execution of this
      Consulting Agreement, and agrees to repay the Company for any tax withholding
      or
      taxes it pays (other than penalties) as a result of Consultant or Leo Blomen’s
      nonpayment on a timely basis. 

     

    (c)  Neither
      Consultant nor Mr. Blomen shall be eligible for any Company-provided benefits,
      including but not limited to medical, disability or other insurance, vacation,
      holiday or sick pay, or any other compensation or consideration commonly known
      as fringe benefits.

     

    (d)  Consultant’s
      and Mr. Blomen’s place of work shall be Consultant’s own offices, not the
      Company's workplace. Mr. Blomen will, however, be required to make periodic
      visits to the Company’s offices upon request of the Company’s Chief Executive
      Officer. The Company will not establish hours or days of work for Consultant
      or
      Mr. Blomen. The Company will not control the manner and method by which
      Consultant or Mr. Blomen renders services. 

     

    (e)  Consultant
      is generally free to provide services to any other organization or company,
      so
      long as such work does not interfere with Consultant’s work for the Company and
      does not violate the Confidential Information, Noncompetition and Invention
      Assignment Agreement referenced in Paragraph 9(a) below.

     

    
      
        
        

      

      
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    5.  Fees.
      

     

    (a)  Consulting
      Services.
      The
      Company shall pay Consultant at the rate of €175 per hour for the Consulting
      Services (the “Hourly Rate”) which shall not include any travel time or any
      services as a Director of HydroGen Corporation. The Company shall assume the
      full currency risk associated with payment in Euros. All Consulting Services
      must be described in itemized invoices specifying the date, nature and amount
      of
      time for all Consulting Services. Consultant shall submit such invoices to
      the
      Company's Chief Executive Officer within thirty days after the last day of
      the
      month in which the Consulting Services are rendered. Payment shall be made
      by
      the Company on all approved invoices within thirty days of receipt.


     

    (b)  Travel
      Time.
      The
      Company shall pay Consultant for Mr. Blomen’s travel time reasonably
      required in connection with the performance of the Consulting Services, at
      one
      half of the Hourly Rate. Such hours billed for travel time shall be counted
      toward hours of Guaranteed Services or Guaranteed Post-Notice Services, as
      applicable. 

     

    (c)  Board
      Services.
      The
      Company shall pay Consultant in equal monthly payments at a yearly rate of
      €25,000 for Mr. Blomen’s service as Chairman of the Board of Directors of
      HydroGen Corporation following the Effective Date, so long as Mr. Blomen
      continues to serve as Chairman of the Board of Directors of HydroGen Corporation
      and this Agreement remains in effect. However, this Consulting Agreement will
      continue in effect whether or not Mr. Blomen serves as Chairman of the Board
      until terminated pursuant to its terms.

     

    (d)  Expense
      Reimbursements.
      The
      Company shall reimburse Consultant for the cost of airfare and reasonable travel
      expenses for visits by Mr. Blomen to the Company or such other travel authorized
      by the Company’s Chief Executive Officer, consistent with Company policy.
      Consultant may utilize business class on international flights. Consultant
      shall
      be reimbursed for all cell phone charges reasonably incurred in connection
      with
      providing Consulting Services. All expenses incurred must be documented with
      original receipts and submitted promptly to the Company for reimbursement,
      but
      in no event later than thirty days after they are incurred. 

     

    6.  Termination
      and Notice of Termination.
      The
      Agreement shall be effective for the Initial Term, unless terminated
      automatically in accordance with paragraph 9(b) below or by the Company for
      Cause. Any party may terminate this Agreement for any or no reason, with or
      without Cause, upon six months’ written notice to the other parties, so long as
      the effective date of the termination occurs no earlier than six (6) months
      after the expiration of the Initial Term. Notwithstanding anything in this
      Agreement to the contrary, the Company may terminate this Agreement at any
      time
      for Cause. For purposes of this Agreement, “Cause” shall mean if Consultant or
      Mr. Blomen fail to perform Consulting Services reasonably assigned, engage
      in intentional wrongdoing in connection with the performance of Consulting
      Services, perform such service negligently or in an unsatisfactory manner,
      or
      breach any contract with the Company.

     

    7.  Guaranteed
      Post-Notice Services and Pay.
      If any
      of the parties provide six months' advance written notice that the Agreement
      is
      being terminated without Cause in accordance with paragraph 6, in each month
      of
      the notice period occurring after the Initial Term:

     

    
      
        
        

      

      
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    (a)  Consultant
      shall, upon request, provide up to the number of hours of Consulting Services
      as
      Consultant provided during the preceding 12 month period, divided by 12 (the
      “Guaranteed Post-Notice Services”).

     

    (b)  The
      Company may, in its sole discretion, authorize Consultant to perform some or
      all
      of the Guaranteed Post-Notice Services or waive the requirement that Consultant
      performs services.

     

    (c)  The
      Company will pay Consultant for the full number of hours (as calculated in
      paragraph 7(a)) of the Guaranteed Post-Notice Services, unless the Agreement
      is
      terminated for Cause by the Company, whether or not Consulting Services are
      requested by the Company.

     

    8.  Payments
      Following Termination of the Agreement.
      Regardless of the reason for termination of this Agreement and regardless of
      whether termination is by the Company or Consultant, the Company shall pay
      Consultant: (i) the full amount of any accrued but unpaid consulting fees due
      under paragraph 5(a)-(c) for hours of Consulting Services already performed;
      and
      (ii) any accrued but unreimbursed travel expenses due pursuant to Paragraph
      5(d); (iii) any accrued but unpaid payments due under Paragraph 7 of this
      Agreement. Notwithstanding anything to the contrary in this Agreement, in the
      event of a termination by the Company for Cause or pursuant to 9(b) below,
      no
      payment shall be due for the Guaranteed Services or Guaranteed Post-Notice
      Services for any hours of Consulting Services not performed. 

     

    9.  
(a)      
       Confidential
      Information, Noncompetition, and Invention Assignment.
      This
      Agreement shall not commence unless and until and is contingent upon
      Consultant’s and Mr. Blomen’s execution of the Confidential Information,
      Noncompetition and Inventions Assignment Agreement attached as “Exhibit 1” to
      this Agreement, which shall be executed prior to or simultaneously herewith.
      The
      termination of this Agreement for any reason shall not affect the enforceability
      of the Confidential Information, Noncompetition and Inventions Assignment
      Agreement.

     

    (b)  Separation
      Agreement. This
      Agreement shall automatically terminate without action by any party if either
      Mr. Blomen or Consultant: (i) does not enter into and deliver to the Company,
      on
      or before the twenty first day following the Effective Date, the Separation
      Agreement attached to this Agreement as Exhibit "2"; or (ii) timely revokes
      the
      Separation Agreement. Notwithstanding anything to the contrary in this
      Agreement, if this Agreement is terminated pursuant to this Paragraph 9(b),
      no
      payment shall be due for the Guaranteed Services for any Consulting Services
      not
      performed. 

     

    10.  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 or on Consultant’s behalf relating in any way to
      this Agreement or to Consultant’s relationship with the Company shall be filed
      exclusively in federal or state court in the County of Allegheny, State of
      Pennsylvania and Consultant consents to the jurisdiction and venue of these
      courts in any action instituted by the Company against Consultant. 

     

    
      
        
        

      

      
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    (b)  Severability. Nothing
      in this Agreement is intended to violate any law or shall be interpreted to
      violate any law. In the event that any provision contained in this Agreement
      shall be determined by any court of competent jurisdiction to be overbroad
      and/or unenforceable, then the court making such determination shall have the
      authority to modify the provision as necessary to make it enforceable and the
      provision shall then be enforceable in its narrowed form. Moreover, each
      provision of this Agreement is independent of and severable from each other.
      In
      the event that any provision in this Agreement is determined to be legally
      invalid or unenforceable by a court and is not modified by a court to be
      enforceable, the affected provision shall be stricken from the Agreement, and
      the remaining provisions of this Agreement shall remain in full, force and
      effect. For purposes of this Paragraph 10(b), a “provision” of this Agreement
      shall mean any paragraph or subparagraph of this Agreement or any sentence
      or
      clause within any paragraph or subparagraph of this Agreement. 

     

    (c)  Survival.
      Paragraphs 8, 9(a)-(b), and 10(a)-(g) shall remain in full force and effect
      after the termination of this Agreement for any reason. 

     

    (d)  Notices. All
      notices, requests or other communications provided for in this Agreement shall
      be made, if to the Company, to the Chief Executive Officer of the Company,
      with
      a copy to the General Counsel of the Company, at the Company’s principal
      executive office, located at 10 East 40th Street, Suite 3405, New York, New
      York
      10016-0301 and if to Consultant or Mr. Blomen, to Mr. Blomen at Gortelseweg
      3,
      8076 PR Vierhouten, Netherlands (or to such other address as the Company,
      Blomenco or Mr. Blomen may give to the other in writing for purposes of notice
      hereunder). All notices, requests or other communications required or permitted
      by this Agreement shall be made in writing either (a)
      by
      personal delivery to the party entitled thereto, (b)
      by
      mailing via certified mail, postage prepaid, return receipt requested, in the
      United States mails to the last known address of the party entitled thereto,
      (c)
      by
      reputable overnight courier service, or (d)
      by
      facsimile with confirmation of receipt. The notice, request or other
      communication shall be deemed to be received upon actual receipt by the party
      entitled thereto; provided, however, that if a notice, request or other
      communication is not received during regular business hours, it shall be deemed
      to be received on the next succeeding business day of the Company.

     

    (e)  Entire
      Agreement and Modification. This
      Agreement, the Separation Agreement and General Release and the Exhibits
      thereto, constitute the entire agreement by or among the parties and supersedes
      any and all prior representations, agreements, written or oral, expressed or
      implied, by or on behalf of the Company, HydroGen Corporation or any agent
      thereof. This Agreement may not be modified or amended other than by an
      agreement in writing signed by Blomenco, Leo Blomen and the Company’s Chief
      Executive Officer or President. Neither the failure nor any delay on the part
      of
      any party to exercise any right, remedy, power or privilege hereunder shall
      operate as a waiver thereof, nor shall any single or partial exercise of any
      right, remedy, power or privilege preclude any other of further exercise of
      the
      same or any other right, remedy, power, or privilege with respect to any
      occurrence or be construed as a waiver of any right, remedy, power, or privilege
      with respect to any other occurrence.

     

    
      
        
        

      

      
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    (f)  Assignment
      and Succession.
      This
      Agreement shall be binding upon the Company and its successors and assigns.
      The
      Company shall require any successor (whether direct or indirect, by purchase,
      merger, consolidation or otherwise) to all or substantially all of the business
      and/or assets of the Company expressly to assume and agree to perform this
      Agreement in the same manner and to the same extent that the Company would
      have
      been required to perform it if no such succession had taken place. Consultant
      expressly consents to the assignment of the Agreement to any new owner of the
      Company’s business or purchaser of the Company. Consultant’s rights and
      obligations hereunder may not be assigned by Consultant except as expressly
      provided herein. 

     

    (g)  Headings;
      Counterparts. 
      The
      headings of paragraphs in this Agreement are for convenience only and shall
      not
      affect its interpretation. This Agreement may be executed in two or more
      counterparts, each of which shall be deemed to be an original and all of which,
      when taken together, shall be deemed to constitute but one and the same
      Agreement.

     

    * * *

     

    IN
      WITNESS WHEREOF, and intending to be legally bound, the parties have executed
      this Agreement as of the date first written above.

     

     

    
      	BLOMENCO, B.V.	 	HYDROGEN, L.L.C.
	 	 	 	 	 
	
              By:

            	/s/ Leo
              Blomen	 	
              By:

            	/s/ Joshua
              Tosteson
	 	
              
                

              

              
                Leo
                  Blomen, on behalf of 

                Blomenco,
                  B.V.

              

            	 	 	
              

              Joshua
                Tosteson

              
                President

              

            
	 	
            	 	 	
            
	Dated: 	11/10/07	 	Dated: 	11/10/07
	 	 	 	 	 
	Witness: 
	/s/
              Christopher J. Garofalo	 	Witness: 
              	/s/
              Christopher J. Garofalo
	 	
              
                

              

            	 	 	
              
                

              

            
	 	
              /s/ Leo Blomen

            	 	 	 
	 	
              
                

              

              Leo Blomen, on his own behalf

            	 	 	 
	 	 	 	 	 
	Dated:	11/10/07	 	 	 
	 	 	 	 	 
	Witness: 	/s/ Christopher J. Garofalo
              
              

            	 	 	 


    

     

    
      
        
        

      

      
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