CONFIDENTIAL INFORMATION, NONCOMPETITION AND INVENTION ASSIGNMENT AGREEMENT
CONFIDENTIAL
INFORMATION, NONCOMPETITION
AND
INVENTION ASSIGNMENT AGREEMENT
In
consideration of my being employed by HydroGen, L.L.C., any of its affiliates,
or any of their respective successors or assigns (collectively, the "Company"),
I agree to the following, intending to be legally bound:
1. At-Will
Employment.
I
understand and acknowledge that my employment with the Company is for an
unspecified duration and constitutes "at-will" employment. My employment may
be
terminated at any time by either me or the Company, for any or no reason, with
or without cause or notice.
2. Best
Efforts.
While
employed by the Company, I shall devote my best efforts, and all of my working
time and attention to the interests of the Company, shall faithfully perform
all
duties from time to time assigned to me and shall conform to all of the
Company’s requirements for proper business conduct.
3. Confidential
Information.
(a) Company
Information.
I agree
at all times during the term of my employment and thereafter, to hold in
strictest confidence, and not to use, except for the benefit of the Company,
any
Confidential Information of the Company. I 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 I call or
with
whom I become acquainted during the term of my employment), 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 I learn of, obtain,
or
that is disclosed to me during the course of my employment, 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 mine.
(b) Former
Employer Information.
I agree
that I will not, during my employment with the Company, improperly use or
disclose any proprietary information or trade secrets of any former or
concurrent employer or other person or entity, if any, with whom I have an
agreement or duty to keep such information or secrets confidential, if any,
and
that I will not bring onto the premises of the Company any unpublished document
or proprietary information belonging to any such employer, person or entity
unless consented to in writing by such employer, person or entity.
(c) Third
Party Information.
I
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. I 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 my work for the Company, consistent
with the Company's agreement with such third party.
4. Inventions.
(a) Inventions
Retained and Licensed.
I have
attached hereto, as Attachment "A", a list describing all inventions, original
works of authorship, developments, improvements, and trade secrets which were
made by me prior to my employment with the Company (collectively referred to
as
"Prior Inventions"), which belong to me, which relate to the Company's proposed
business, products or research and development, and which are not assigned
to
the Company hereunder; or, if no such list is attached, I represent that there
are no such Prior Inventions. If in the course of my employment with the
Company, I incorporate into a Company product, process or machine a Prior
Invention owned by me or in which I have an interest, the Company is hereby
granted and shall have a nonexclusive, royalty-free, irrevocable, perpetual,
worldwide license to make, have made, modify, use and sell such Prior Invention
as part of or in connection with such product, process or machine.
(b) Assignment
of Inventions.
I agree
that I 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 my 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 I 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 my employment with the Company commenced until my
cessation of employment 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"). I further acknowledge that
all
original works of authorship which are made by me (solely or jointly with
others) within the scope of my employment and which are protectable by copyright
are "works made for hire," as that term is defined in the United States
Copyright Act.
(c) Maintenance
of Records.
I agree
to keep and maintain adequate and current records of all Inventions made by
me
(solely or jointly with others) during the term of my employment 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.
I 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. I further
agree that my 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. If the Company is unable because of my mental
or
physical incapacity or for any other reason to secure my 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 I
hereby irrevocably designate and appoint Company and its duly authorized
officers and agents as my agent and attorney in fact, to act for and in my
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 me.
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5. Noncompetition,
Nonsolicitation, Etc.
(a) During
my
employment with the Company and for the periods set forth below after the
termination of my employment with Corporation for any reason whatsoever, I
shall
not, directly or indirectly:
(i) a
period
of eighteen (18) months after such termination, on my 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 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 1MW.
(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
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 1MW.
(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 1MW. I am 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.
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(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 my employment, and (ii) "Prospective Customer" shall mean
persons or entities whose business was solicited by the Company during the
twelve months preceding the cessation of my employment.
(c) I
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 I learn of, obtain, or that is disclosed
to me
during the course of my employment, 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
3,
4, 5 and 6 of this Agreement are reasonable and necessary in order to protect
the legitimate interests of the Company and I am receiving adequate
consideration hereunder; (iv) the Company will not have any adequate remedy
at
law if I violate the terms hereof or fails to perform any of my obligations
under Sections 3, 4, 5 and 6 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 of Employee
under this Sections 3, 4, 5 and 6 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.
(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 I violate any of the restrictions contained
in subparagraph (a) above, then the restrictive period shall not run in my
favor
from the time of the commencement of any such violation until such time as
such
violation shall be cured by me.
6. Returning
Company Documents and Property.
I agree
that, at the time of leaving the employ of the Company, or earlier upon request,
I will deliver to the Company (and will not keep in my 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 me pursuant to my employment with the Company or otherwise relating
to the business of the Company, retaining neither copies nor excerpts thereof.
I
also agree that, at the time of leaving the employ of the Company, or earlier
upon request, I will deliver to the Company all Company property in my
possession, including cell phones, computers, computer discs, drives and other
equipment or devices and that if I fail to do so the Company may withhold from
my compensation the replacement cost of Company property I have not returned.
I
agree to sign and deliver to the Company the Company's form of "Termination
Certification" certifying my compliance with this Section 5.
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7. Arbitration
and Equitable Relief.
(a) Arbitration.
In
order to obtain the many benefits of arbitration over court proceedings,
including speed of resolution, lower costs and fees and more flexible rules
of
evidence, I agree that all disputes (except those relating to unemployment
compensation or workers compensation, and except as provided in paragraph 7(b)
below) arising out of my employment or concerning the interpretation or
application of this Agreement or its subject matter (including without
limitation those relating to workplace discrimination and/or harassment on
any
basis, whatsoever, including but not limited to age, race, sex, religion,
national origin, disability or perceived disability, as well as any claimed
violation of any federal, state or local law, regulation or ordinance, such
as
Title VII of the Civil Rights Act, the Age Discrimination in Employment Act,
the
Americans with Disabilities Act and their state and local counterparts, if
any,
including but not limited to any claims of retaliation thereunder) shall be
resolved exclusively by binding arbitration at a location in reasonable
proximity to my last place of employment with the Company, pursuant to the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association. The
parties expressly waive their rights to have any such claim resolved by jury
trial. The Company shall bear the cost of the Arbitrator's fee. The Company
shall initially bear its filing fees, as well as my filing fees in excess of
$75.00 upon my written request to the Company's President. The decision, in
the
Arbitrator's discretion, may award all or some of my or the Company's attorneys
fees and costs, including filing fees, in addition to any such awards required
by law. Arbitration must be demanded within three hundred (300) days of the
time
when the demanding party knows or should know of the events giving rise to
the
claim. The decision of the Arbitrator shall be in writing and set forth the
findings and conclusions upon which the decision is based. Notwithstanding
the
foregoing, the requirement to arbitrate does not apply to the filing of a claim
with a federal, state or local administrative agency. The decision of the
Arbitrator shall be final and binding and may be enforced under the terms of
the
Federal Arbitration Act (9 U.S.C. Section 1 et seq.), but may in addition be
set
aside or modified by a reviewing court in the event of a material error of
law.
Judgment upon the award may be entered, confirmed and enforced in any federal
or
state court of competent jurisdiction.
(b) Equitable
Remedies.
I agree
that it would be impossible or inadequate to measure and calculate the Company's
damages from any breach of the covenants set forth in Sections 2, 3, 5 and
6 of
this Agreement. Accordingly, I agree that if I breach or threaten to breach
any
of such covenants, the Company will have available, in addition to any other
right or remedy available, the right to obtain injunctive and equitable relief
of any type from a court of competent jurisdiction, including but not limited
to
restraining such breach or threatened breach and to specific performance of
any
such provision of this Agreement. I further agree that no bond or other security
shall be required in obtaining such equitable relief and I hereby consent to
the
issuance of such injunction and to the ordering of specific
performance.
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8. General
Provisions.
(a) Governing
Law and Forum.
This
Agreement shall be governed by and interpreted in accordance with the laws
of
Pennsylvania, the location of the Company's headquarters, where this Agreement
shall be entered into, without giving effect to any conflict of laws provisions.
Any
court
action instituted by me or on my behalf relating in any way to this Agreement
or
my employment with the Company shall be filed exclusively in federal or state
court in the County of Allegheny, State of Pennsylvania and I consent to the
jurisdiction and venue of these courts in any action instituted by the Company
against me.
(b) Entire
Agreement.
This
Agreement and the Offer of Employment Letter, set forth the entire agreement
and
understanding between the Company and me, and merges all prior discussions
between us. 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
me and the Company’s Chief Executive Officer, President or Chief Operating
Officer. Any subsequent change or changes in my duties, salary or compensation
will not affect the validity or scope of this Agreement.
(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 my heirs, executors, administrators and other
legal representatives and may be assigned by the Company and its successors
without my consent.
9. Representations
and Warranties.
I
represent and warrant that I am not under any obligations to any third party
which prohibits, restricts or could interfere in any way with the performance
of
my duties as an employee of the Company and that my employment with Company
will
not breach any agreement by which I am bound, including, without limitation,
with any of my former employers. I represent and warrant that there are no
legal
or contractual impediments to me being able to fully undertake any work on
behalf of the Company, including but not limited to agreements not to compete.
Any and all agreements I have entered into either with any former employers
or
which could apply in any way to my activities during my employment with the
Company are listed in attachment "B" to this Agreement.
10. Employee
Acknowledgement.
I
acknowledge and agree (i) that I have had the opportunity to consult with
independent counsel of my own choice concerning this Agreement and has been
advised to do so by the Company, and (ii) that I have read and understand
the Agreement, am fully aware of its legal effect, and have entered into it
freely based on my own judgment.
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Date:
11/10/07
/s/
Xxxx X. Xxxxx
Signature
Xxxx
X. Xxxxx
Name
of
Employee (typed or printed)
/s/
Xxxxxxxxxxx X. Xxxxxxxx
Witness
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ATTACHMENT
A
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ATTACHMENT
B
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