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 Leo 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)
F
ormer 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.
(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 dis
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