CONFIDENTIAL INFORMATION, NONCOMPETITION AND INVENTION ASSIGNMENT AGREEMENT
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 Xxx 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/ Xxx Blomen | Date: | 11/10/07 | |
|
Xxx Blomen |
|
XXX
BLOMEN INDIVIDUALLY:
| /s/ Xxx Blomen | Date: | 11/10/07 | ||
|
Xxx Blomen |
|
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