Exhibit 10.7
CONSULTING AGREEMENT
This Consulting Agreement, made and entered into as of July 28, 1999
between H Power Corp., a Delaware corporation having its principal place of
business at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Company"),
and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, an individual residing at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (the "Consultant").
R E C I T A L S:
WHEREAS, the Company considers it in its best interest and in the best
interest of its stockholders to ▇▇▇▇▇▇ the retention and engagement of key
senior personnel; and
WHEREAS, for the foregoing reasons the Company desires to retain the
services of the Consultant on the terms and subject to the conditions provided
in this Agreement; and
WHEREAS, the Consultant desires to accept such engagement by the Company
and to render services to the Company on the terms and subject to the conditions
provided in this Agreement;
NOW THEREFORE, The parties hereto agree as follows:
1. Engagement
The Company hereby agrees to retain the services of the Consultant, and
the Consultant agrees to be retained by the Company, to render services to
the Company for the period, at the rate of compensation and upon the other
terms and conditions, set forth in this Agreement.
2. Term
The term of the Consultant's engagement under this Agreement (the "Term")
shall commence on June 1, 1999 and shall continue through and including
May 31, 2004, unless earlier terminated in accordance with Section 7, in
which event the Termination Date as set forth therein shall be deemed the
end of the Term. If not earlier terminated, the Term shall be
automatically extended for successive 12-month periods unless either Party
shall object to any extension, in writing, no later than 90 days prior to
the first day of such extension.
3. Position and Duties
(a) Position as Consultant
The Consultant shall serve as a senior consultant to the Company.
During his engagement hereunder, the Consultant shall report
directly to the Board of Directors of the Company (the "Board"). The
Consultant shall be obligated to devote a reasonable amount of his
business time to the Company in satisfaction of his duties hereunder
during any Engagement Year (as defined in Section 4(a) below); it
being understood that the parties contemplate
that the Consultant shall have other businesses and endeavors and
shall not devote all or even a substantial amount of his business
time to the fulfillment of such duties.
(b) Duties as Consultant
During the Term, the Consultant shall, subject to supervision by the
Board, perform duties consistent with his experience and abilities,
as may be reasonably and properly assigned to the Consultant by the
Board. It is contemplated that the Consultant shall render services
to the Company from his residence and/or from such other location(s)
as may from time to time be convenient to the Consultant. Upon the
Consultant's request, the Company shall provide him with an office,
furnished and equipped in a manner consistent with the position as a
senior consultant and paid for by the Company, at a location
reasonably selected by the Consultant.
4. Compensation and Reimbursement of Expenses
(a) Compensation
For purposes of this Agreement, each consecutive 12 month period
during the Term ending on each May 31st (commencing with May 31,
2000) during the Term shall be referred to as an "Engagement Year."
For services rendered by the Consultant under this Agreement, the
Company shall pay to the Consultant during each Engagement Year
during the Term the following, which shall be considered his "Base
Compensation": a base salary of $113,100 per year payable in equal
biweekly installments, commencing with the end of the pay period
which next follows the commencement of the Term; provided, that such
base salary shall be adjusted at the beginning of each Engagement
Year by a factor equal to the current rate of inflation during the
period from the last such adjustment, or in the case of the first
adjustment, from the date hereof, as shown by the U.S. Bureau of
Labor Statistics Consumer Price Index for Urban Wage Earners and
Clerical Workers ("Index"). Should the U.S. Department of Labor
discontinue the publication of the Index, or publish same less
frequently, or alter same in any other manner, then Company may
adopt a substitute index or substitute procedure which reasonably
reflects and monitors consumer prices within the United States.
The Base Compensation shall be subject to customary payroll
deductions (i.e., for social security, federal, state and local
taxes and other amount customarily withheld from the compensation of
members of the Board and/or employees of the Company).
(b) Financial Advisory Bonus
Except for the Company's initial public offering, arranged for with
Josephthal & Co., Inc., the Company shall pay to the Consultant and
the Consultant shall be entitled to receive from the Company, an
amount or amounts which shall be customary at such time for brokers,
business opportunity finders, financial intermediaries or persons or
entities performing similar functions, in connection with any and
all public and private financings
Page 2 of 14
consummated by the Company or any of its subsidiaries or affiliates
during the Term hereunder and in connection with which the
Consultant provides assistance, makes any introduction or otherwise
facilitates such transaction, in each case, payable to the
Consultant upon the receipt of said gross proceeds by the Company.
In the event that the Consultant and the Company are unable to agree
upon the amount of such compensation, they shall reasonably agree
upon an independent investment banking firm to make such
determination, which shall be binding upon them.
(c) Options
Nothing herein shall limit or restrict the Consultant's ability to
participate in the Company's 1996 Stock Option Plan (the "Plan"). On
the date hereof, the Company hereby grants to the Consultant
pursuant to the Plan the option (the "Consulting Options") to
acquire 100,000 shares of the Company's common stock at a price of
$15.00 per share (each of such amounts being subject to customary
anti-dilution adjustments, including in connection with any stock
split, recombination, reclassification or similar transaction). The
Initial Option shall have a term of five years from the date hereof,
irrespective of any termination of this Agreement, and shall be
fully exercisable and vested from and after the date hereof. The
Consulting Options may be exercised by cash tender or by tender of
other options or securities of the Company, upon customary
conditions relating to a cashless exercise of options.
(d) Reimbursement of Expenses; Office Equipment
Consistent with established policies of the Company as in effect
from time to time for senior executives, consultants and members of
the Board, the Company shall pay to or reimburse the Consultant for
all reasonable and actual out-of-pocket expenses, including without
limitation, travel, hotel, automobile, telephone and cellular
telephone expenses, computer and data processing expenses and
similar expenses, incurred by the Consultant in performing his
obligations under this Agreement. During the term of this Agreement,
as may be extended, the Company shall furnish the Consultant with,
or shall reimburse the Consultant for, a vehicle (of comparable
stature to the make and model of the automobile to which the
Consultant has been accustomed), as well as insurance costs
therefor. In addition, the Company shall provide the Consultant with
reasonable and necessary office furniture, equipment and supplies
including without limitation, a desk top computer with a full
keyboard and 17 inch screen, a laser jet printer, a modem, a
scanner, tape back-up and uninterrupted power supply equipment, and
programs required for the Consultant's duties hereunder for his use
at his residence or at such other location the Consultant may
select.
Page 3 of 14
5. Benefits
(a) Benefit Plans
The payments provided in Section 4 above are in addition to any
benefits to which the Consultant may be, or may become, entitled
under any of the Company's benefit plans or programs for which
members of the Board or senior executive officers of or consultants
to the Company are or shall become eligible. During the term the
Consultant shall be eligible to receive benefits and emoluments
which are consistent with the benefits and emoluments provided to
senior executive officers of the Company, and subsequent to the term
shall be entitled to all health benefits for the life of the
consultant.
(b) Vacation
The Consultant shall be entitled to reasonable periods of vacation
and sick time consistent with his role as a senior consultant to the
Company, during which periods the Company shall not expect the
Consultant to perform services hereunder.
(c) No Reduction
There shall be no material reduction or diminution of the benefits
provided in this Section 5 during the Term unless (i) the Consultant
shall have provided his consent to such reduction or diminution or
(ii) an equitable arrangement (embodied in an ongoing substitute or
alternative benefit or plan) has been made with respect to such
benefit or plan or (iii) such reduction is part of an
across-the-board reduction affecting all senior executives of the
Company.
6. Benefits Payable Upon Disability
(a) Disability Benefits
During any period of Disability (as defined below) occurring during
the Term, the Company shall continue to pay to the Consultant the
Base Compensation as provided herein and continue to extend to him
the benefits described in Sections 4 and 5 hereof; it being
understood that if disability benefits are provided under any
disability insurance or similar policy maintained by the Company (or
maintained by the Consultant, the cost of which is reimbursed or
paid by the Company), payments under such policy shall be considered
as payments by the Company and, to the extent received, shall offset
any Base Compensation payable to the Consultant under this
Agreement. As used in this Agreement, "Disability" shall mean the
inability (as determined by a majority of the remaining members of
the Board, other than the Consultant, voting for such determination)
of the Consultant to render services to the Company, as provided
herein, as a result of physical or mental infirmity or disability.
(b) Services During Disability
Page 4 of 14
During the Term, notwithstanding any Disability, the Consultant
shall, to the extent that he is physically and mentally able to do
so, furnish information, assistance and services to the Company.
7. Termination
This Agreement shall be terminated in accordance with the provisions of
this Section 7, in which case the provision of Section 8 below shall be
applicable.
(a) Upon Expiration of the Term
This Agreement shall terminate in accordance with Section 2 above.
(b) By the Company
In addition to the provisions of Section 7(a) above, this Agreement
is subject to earlier termination by the Company, as follows:
(i) Death of Consultant
If the Consultant dies, this Agreement shall terminate, the
Termination Date being the date of the Consultant's death.
(ii) Disability
If the Consultant is unable to perform his services as
required in this Agreement, as a result of his Disability
during an Engagement Year, the Company shall have the right to
terminate this Agreement as determined by a majority of the
remaining members of the Board, other than the Consultant,
voting for such determination), the Termination Date being 15
days after notice thereof is provided to the Consultant.
(iii) Termination by the Company for Cause
The Company shall have the right to terminate the Consultant's
engagement under this Agreement for Cause (as defined below),
the Termination Date to be immediately upon notice thereof
from the Company to the Consultant. For purposes of this
Agreement, "Cause" shall mean the Consultant's (A) conviction
of any misdemeanor involving moral turpitude or any felony,
(B) misappropriation or embezzlement from the Company, (C)
breach during the Term of Sections 10 or 11 below or (D)
persistent refusal (after 30 days' prior written notice during
which such refusal may be cured by the Consultant) to perform
his duties hereunder.
(iv) No Termination by the Company Without Cause
Page 5 of 14
The Company shall not have the right to terminate the
Consultant's engagement hereunder for any reason not
specifically set forth in clauses (i), (ii) or (iii) of this
Section 7(b).
(c) By The Consultant
In addition to the provisions of Section 7(a) above, this Agreement
is subject to earlier termination by the Consultant, as follows:
(i) Termination by the Consultant for Just Cause
The Consultant shall have the right to terminate his
employment under this Agreement upon the occurrence of a
material breach of this Agreement by the Company. The
Termination Date shall be 15 days after the date of the
applicable notice giving rise to a termination, by the
Consultant to the Company.
(ii) Termination by the Consultant Without Just Cause
The Consultant shall have the right to terminate the
Consultant's employment under this Agreement for any other
reason not set forth in clause (i) of this Section 7(c), the
Termination Date being 15 days after notice thereof from the
Consultant to the Company.
8. Effect of Termination
The following provisions shall be applicable in the event of the
termination of this Agreement as provided in Section 7 above.
(a) Expiration of Term
Upon termination of this Agreement as provided in Section 7(a)
above, this Agreement shall terminate and be of no further force and
effect, except as provided in Sections 11, 12 and 13(b) below which
shall survive such termination.
(b) Death
Upon the termination of this Agreement as provided in Section
7(b)(i) above, the Company shall pay to the Consultant's estate (i)
the Base Compensation otherwise payable to the Consultant hereunder
for the six-month period following the Termination Date, payable
within 180 days after the Termination Date (but not earlier than any
recovery of insurance proceeds in respect thereof, as provided
below), and (ii) any bonus for the Engagement Year in which the
Termination Date occurs that the Board determines would otherwise
have been payable had the Consultant not died, which Annual Bonus
shall be reduced by pro prorating it through the Termination Date,
payable, in the case of this clause (ii), at the time such payment
would otherwise be due and payable hereunder, and (iii) expense
reimbursement amounts accrued through the Termination Date, at the
time such payment would otherwise be due and payable thereunder.
Neither party shall have
Page 6 of 14
any further liability or obligation to the other except as provided
in Sections 11, 12 and 13(b) hereunder which shall survive the
Termination Date. Notwithstanding the provisions of clause (i) and
(ii) above, the Company shall have the right to provide for either
or both of the payments described therein by purchasing life
insurance on the Consultant's life or reimbursing to the Consultant
the cost of the premiums in respect of such life insurance which may
be purchased directly by the Consultant if he so elects.
In the event that the Consultant shall own any employee, director
and/or consultant stock options as of the Termination Date, all of
such options which are unvested as of the Termination Date shall
vest and become exercisable by virtue of any termination under
Section 7(b)(i) and, notwithstanding the provisions of the Plan
pursuant to which such options may have been granted, the
Consultant's estate shall have a period of two years from the
Termination Date to exercise such options, except that the
Consulting Options shall have the term provided in Section 4(c)
above.
(c) Disability
Upon the termination of this Agreement as provided in Section
7(b)(ii) above, the Company shall pay to the Consultant (i) an
amount equal to the compensation otherwise payable to the Consultant
hereunder for the six-month period following the Termination Date
and (ii) any bonus for the Employment Year in which the Termination
Date occurs that the Board determines would otherwise have been
payable had the Consultant not become Disabled, which Annual Bonus
shall be reduced by prorating it through the Termination Date, in
each case, payable at the times such payments would otherwise be due
and payable hereunder and (iii) expense reimbursement amounts
accrued through the Termination Date, at the time such payment would
otherwise be due and payable thereunder. Neither party shall have
any further liability or obligation to the other except as provided
in Sections 11, 12 and 13(b) hereunder which shall survive the
Termination Date. Notwithstanding the provisions of clauses (i) and
(ii) above, the Company shall have the right to provide for either
or both of such payments described therein by purchasing disability
insurance in respect of the Consultant or reimbursing to the
Consultant the cost of the premiums in respect of such disability
insurance which may be purchased directly by the Consultant if he so
elects. In the event that the Consultant shall own any employee,
director and/or consultant stock options as of the Termination Date,
all of such options which are unvested as of the Termination Date
shall vest and become exercisable by virtue of any termination under
Section 7(b)(ii) and, notwithstanding the provisions of the
Company's Stock Option Plan pursuant to which such options may have
been granted, the Consultant shall have a period of two years from
the Termination Date to exercise such options, except that the
Consulting Options shall have the term provided in Section 4(c)
above.
(d) Termination by the Company For Cause
Page 7 of 14
Upon the termination of this Agreement as provided in Section
7(b)(iii) above, the Company shall pay to the Consultant (i) the
accrued and unpaid Base Compensation, if any, through the
Termination Date and (ii) expense reimbursement amounts accrued
through the Termination Date, at the time such payments are
otherwise due and payable thereunder. Neither party shall have any
further liability or obligation to the other except as provided in
Sections 11, 12 and 13(b) hereunder which shall survive the
Termination Date. No unvested employee, director and/or consultant
stock options shall vest or become exercisable by virtue of any
termination under Section 7(b)(iii) and any and all rights thereto
then possessed by the Consultant shall be terminated and of no
further force and effect; it being understood that the foregoing
shall not affect the Consulting Options.
(e) Termination by the Consultant for Just Cause
Upon termination of this Agreement as provided in Section 7(c)(i)
above, the Company shall pay to the Consultant (i) the Base
Compensation which would otherwise have been payable hereunder for
the remainder of the Term had the Agreement not been terminated and,
(ii) expense reimbursement amounts accrued through the Termination
Date, in each case, in the case of clause (i) and (ii) above, at the
time such payments are otherwise due and payable thereunder. Neither
party shall have any further liability or obligation to the other
except as provided in Sections 11, 12 and 13(b) hereunder which
shall survive the Termination Date. All unvested employee, director
and/or consultant stock options, if any, shall vest and become
exercisable for their remaining term absent such termination by
virtue of any termination under Section 7(c)(i).
(f) Termination by the Consultant Without Just Cause
Upon the termination of this Agreement as provided in Section
7(c)(ii) above, the Company shall pay to the Consultant (i) the
accrued and unpaid Base Compensation, if any, through the
Termination Date, and (ii) expense reimbursement amounts accrued
through the Termination Date. Neither party shall have any further
liability or obligation to the other except as provided in Sections
11, 12 and 13(b) hereunder which shall survive the Termination Date.
No unvested employee or directors options shall vest or become
exercisable by virtue of any termination under Section 7(c)(ii)
above and any and all rights thereto to such unvested options then
possessed by the Consultant shall be terminated and of no further
force and effect; it being understood that the foregoing shall not
affect the Consulting Options.
9. Federal Income Tax and Other Withholdings
The Company shall withhold from any benefits payable pursuant to this
Agreement such federal, state, city or other taxes and other amounts as
may be required to be withheld pursuant to any applicable law or
governmental regulations or ruling and shall timely pay over to the
appropriate governmental or other authorities the amount withheld,
together with any additional amounts required to be paid by the Company in
respect thereof.
Page 8 of 14
10. Non-Competition and Confidential Information During the Term
(a) Non-Competition
The Consultant covenants and agrees that he will not at any time
during the Term engage in a business which is on the date hereof or
during the Term in competition with the business of the Company, or
solicit the services of any employee of the Company in connection
therewith.
(b) Confidential Information
The Consultant shall, during the Term hold in a fiduciary capacity
for the benefit of the Company and its stockholders all secret,
confidential or proprietary information, knowledge or data relating
to the Company (and any of its subsidiaries or affiliates), which
shall have been obtained by the Consultant during or by reason of
his engagement by the Company. During the Term, the Consultant shall
not, without the prior written consent of the Company, communicate
or divulge any such information, knowledge or data to any person or
entity other than the Company (or such applicable subsidiaries or
affiliates) and those designated by them which would result in any
misappropriation or improper use hereof, except that, during his
engagement hereunder, in furtherance of the business and for the
benefit of the Company, the Consultant may provide confidential
information as appropriate to attorneys, accountants, financial
institutions or other persons or entities engaged in business with
the Company from time to time.
11. Indemnification and Liability Insurance
(a) Indemnification
The Company shall indemnify and hold the Consultant harmless, to the
fullest extent permitted by applicable laws and regulations, against
any and all expenses, liabilities and losses (including without
limitation, reasonable attorneys' fees and disbursements of counsel
reasonably satisfactory to the Company), incurred or suffered by him
in connection with his service hereunder, except to the extent of
the Consultant's gross negligence or willful misconduct.
(b) Insurance
To the extent available at commercially reasonable rates, the
Company shall maintain for the benefit of the Consultant, a
directors' and officers' liability insurance policy insuring the
Consultant's service hereunder and, if the Consultant is a member of
the Board, as a member thereof, during the Term in accordance with
its customary practices as in effect from time to time during the
Term; provided, that all other directors of the Company are also
covered by such insurance. The parties acknowledge and agree that
such policy may cover other directors and officers of the Company in
addition to the Consultant.
12. Registration Rights
Page 9 of 14
The Company acknowledges that the Consultant and certain of his family
members, namely his children ▇▇▇▇▇ and ▇▇▇▇▇, and his wife Elise or trusts
for the benefit of such persons or entities owned or controlled by such
persons (together with the Consultant, the "Holders") are the holders in a
substantial number of shares of Common Stock of the Company (the
"Registrable Securities"). In connection with this Agreement and the
transactions contemplated hereby, the Company desires to grant to the
Holders certain registration rights relating to the Registrable
Securities.
(a) Demand Registration
The Holders and the holders under a Consulting Agreement dated the
date hereof between the Company and ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
collectively shall have the one-time right at any time from time to
time to request registration under the Securities Act of 1933 of all
or part of their Registrable Securities on Form ▇-▇, ▇-▇ or S-3 (if
available) or any similar registration (each, a "Demand
Registration"); provided, that the Company need not effect the
Demand Registration unless such Demand Registration of all the
Holders shall include at least 100,000 shares of Common Stock. In
the event of a Demand Registration, the Company shall use its best
efforts to file and cause to become effect such registration
statement and take other appropriate methods to effect such
distributions of securities, as shall be necessary or appropriate,
upon customary terms and conditions.
(b) Piggyback Registration
Whenever the Company proposes to register any of its securities
under the Securities Act (other than in a registration relating to
sales of securities to participants in a Company dividend
reinvestment plan, S-4, or S-8 or any successor form or in
connection with an exchange offer or an offering of securities
solely to the existing stockholders or employees of the Company),
the Company will give prompt written notice to all Holders of
Registrable Securities of its intention to effect such a
registration and will include in such registration (subject to
customary underwriters' limitations, cut-backs and restrictions, if
any, upon written notice from the Company's underwriters) all
Registrable Securities with respect to which the Company has
received written requests for inclusion therein.
(c) Expenses of Registration
Except as otherwise provided herein, all registration expenses
incurred in connection with all registrations pursuant to this
Section 12 shall be borne by the Company; provided, that
underwriters' or brokers' discounts, fees or selling commissions
shall be borne by the Holders and not by the Company.
(d) Indemnification
The Company agrees to indemnify, to the fullest extent permitted by
applicable law, each Holder of Registrable Securities, against all
losses, claims, damages, liabilities, expenses or any amounts paid
in settlement of any litigation, investigation or proceeding
commenced or threatened (collectively, "Claims") to which each such
indemnified party may become
Page 10 of 14
subject under the Securities Act (except to the extent based solely
on information furnished to the Company in writing by such Holder
for inclusion in any registration statement); the Consultant shall
indemnify the Company against any claims under the Securities Act
resulting solely from information furnished in writing to the
Company by the Consultant for inclusion in a registration statement
under which the Holders are selling security holders.
13. General Provisions
(a) Assignment
Neither this Agreement nor any right or interest hereunder shall be
assignable by the Consultant or the Company without the prior
written consent of the other; provided, that (i) in the event of the
Consultant's Death during the Term, the Consultant's estate and his
heir, executors, administrators, legatees and distributees shall
have the rights and obligations set forth herein, as provided
herein, and (ii) nothing contained in this Agreement shall limit or
restrict the Company's ability to merge or consolidate or effect any
similar transaction with any other entity, irrespective of whether
the Company is the surviving entity; provided, that such surviving
entity shall continue to be bound by the provisions hereof binding
upon the Company.
(b) Binding Agreement
This Agreement shall be binding upon, and inure to the benefit of
the Consultant and the Company and their respective heirs,
executors, administrators legatees and distributees, successors and
permitted assigns.
(c) Amendment of Agreement
This Agreement may not be modified or amended except by an
instrument in writing signed by the parties hereto.
(d) Severability
If, for any reason, any provision of this Agreement is determined to
be invalid or unenforceable, such invalidity or lack of
enforceability shall not affect any other provision of this
Agreement not so determined to be invalid or unenforceable, and each
such other provision shall, to the full extent consistent with
applicable law, continue in full force and effect, irrespective of
such invalid or unenforceable provision.
(e) Effect of Prior Agreements
This Agreement contains the entire understanding between the parties
hereto respecting the Consultant's engagement by the Company, and
supersedes any prior agreement between the Company and the
Consultant relating to the retention of the Consultant as a
consultant to the Company.
(f) Notices
Page 11 of 14
For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing
and shall be deemed to have been duly given (i) when delivered, if
sent by telecopy or by hand, (ii) one business day after sending, if
sent by reputable overnight courier service, such as Federal
Express, or (iii) three business days after being mailed, if sent by
United States certified or registered mail, return receipt
requested, postage prepaid. Notices shall be sent by one of the
method described above; provided, that any notice sent by telecopy
shall also be sent by any other method permitted above. Notices
shall be sent, if to the Consultant, to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇; and if to the Company to H
Power Corporation, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇; telecopy no. (▇▇▇) ▇▇▇-▇▇▇▇, directed to the attention of the
Board with copies to the Chairman and the Secretary of the Company;
or to such other address as either party may have furnished to the
other in writing in accordance herewith, except that notice of
change of address shall be effective only upon receipt.
(g) Counterparts
This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original but all of which together
shall constitute one and the same instrument. This Agreement may be
executed by facsimile transmission.
(h) Arbitration
In the event of a dispute or controversy arising under or in
connection with this Agreement, the Consultant shall give the
Company or the Company shall give the Consultant, as applicable, a
written demand for relief. If the dispute or controversy is not
resolved, it shall be settled exclusively by arbitration, conducted
in Essex County, Newark, the State of New Jersey, in accordance with
the rules of the American Arbitration Association. Judgment shall be
entered on the arbitrator's award in any court having jurisdiction
over the parties hereto.
(i) Indulgences, Etc.
Neither the failure nor any delay on the part of either party to
exercise any right, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other
or further exercise of the same or of any other right, remedy, power
or privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other
occurrence.
(j) Headings
The headings of sections and paragraphs herein are included solely
for convenience of reference and shall not control the meaning or
interpretation any of the provisions of this Agreement.
Page 12 of 14
(k) Governing Law
This Assignment shall be governed by and construed in accordance
with the internal laws of the State of New Jersey, without regard to
principles of conflicts of laws.
Page 13 of 14
IN WITNESS WHEREOF, the Company has caused this Agreement, comprised of 14 pages
including this page, to be executed by its duly authorized officer, and the
Consultant has signed this Agreement, all as of the date first set forth above.
Consultant: H Power Corp.:
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ H. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------- --------------------
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ CEO
Page 14 of 14