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.
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 tr
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