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 Xxx 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 Xxx 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 Xxx 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 Xxx 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 00 Xxxx 00xx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx
00000-0000 and if to Consultant or Mr. Blomen, to Mr. Blomen at Xxxxxxxxxxx
0,
0000 XX Xxxxxxxxxx, Xxxxxxxxxxx (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, Xxx 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/ Xxx Blomen |
By:
|
/s/ Xxxxxx Xxxxxxxx | |
|
Xxx
Blomen, on behalf of
Blomenco,
B.V.
|
Xxxxxx
Xxxxxxxx
President
|
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| Dated: | 11/10/07 | Dated: | 11/10/07 | |
| Witness: | /s/ Xxxxxxxxxxx X. Xxxxxxxx | Witness: | /s/ Xxxxxxxxxxx X. Xxxxxxxx | |
|
|
|
|||
|
/s/ Xxx Blomen
|
||||
|
Xxx Blomen, on his own behalf
|
||||
| Dated: | 11/10/07 | |||
| Witness: | /s/ Xxxxxxxxxxx X. Xxxxxxxx
|
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