COMPANY IN ORDER TO SEEK TO REACH AN
AGREEMENT ON REVISED TERMS AND CONDITIONS OF THE CONTRIBUTIONS OF THE PARTIES TO
THE JV COMPANY AND ANY RELATED AMENDMENT TO THE TERMS OF THIS AGREEMENT, WITH
THE OBJECTIVE TO MAINTAIN THE ALLOCATION OF 55% (FOR AXANE) AND 45% (FOR PLUG
POWER) IN THE SHARE CAPITAL OF THE JV COMPANY AND THE AMOUNT AND SUBSTANCE OF
THE CONTRIBUTION OF AXANE AND OF PLUG POWER. IF THE PARTIES FAIL TO REACH SUCH
AN AGREEMENT DURING THE ABOVE 45 (FORTY FIVE) DAY PERIOD, AND UNLESS OTHERWISE
AGREED, THIS AGREEMENT SHALL LAPSE AND BECOME NULL AND VOID (EXCEPT AS CONCERNS
THE CONFIDENTIALITY OBLIGATIONS) AND NO EXPENSES OR DAMAGES OF ANY KIND SHALL BE
DUE BETWEEN THE PARTIES.
3.3.
THE PARTIES ACKNOWLEDGE THAT THE ISSUANCE OF A REPORT BY THE
CONTRIBUTION AUDITOR IS A REQUIREMENT UNDER FRENCH LAW.
WITHOUT PREJUDICE TO
THE INDEPENDENT CONCLUSION OF THE CONTRIBUTION AUDITOR REGARDING THE VALUATION
OF THE PLUG POWER CONTRIBUTION, THE PARTIES ACKNOWLEDGE THAT THEY HAVE ENGAGED
IN GOOD FAITH NEGOTIATIONS, AT ARM'S LENGTH, REGARDING THE VALUATION OF THE PLUG
POWER CONTRIBUTION AND REGARDING THE RESPECTIVE AMOUNT OF THE AXANE CONTRIBUTION
AND THE PLUG POWER CONTRIBUTION, AND THAT EACH OF THE PARTIES BELIEVES THAT THE
VALUATION AND AMOUNT OF SUCH CONTRIBUTIONS AND THE RESULTING ALLOCATION OF THE
JV COMPANY SHARES FULLY AND FAIRLY REFLECT THE RELATIVE CONTRIBUTION BY EACH OF
THE PARTIES TO THE JV COMPANY.
NOTWITHSTANDING THE ABOVE, NOTHING IN THIS
PROVISION SHALL BE DEEMED TO CONSTITUTE A REPRESENTATION AND WARRANTY OF ONE OF
THE PARTIES TO THE OTHERS WITH RESPECT TO THE VALUATION OF ANY CONTRIBUTION.
16
ARTICLE IV
ACTIONS PRIOR TO CLOSING
4.1
PLUG POWER CONTRIBUTION.
4.1.1
FOR THE PURPOSES OF CLOSING, AXANE SHALL CAUSE THE JV COMPANY TO
PREPARE, BEFORE THE CLOSING DATE, THE LEGAL AND CORPORATE DOCUMENTATION
NECESSARY TO THE IMPLEMENTATION OF THE CONTEMPLATED TRANSACTIONS REFERRED TO IN
ARTICLE III ABOVE. IN PARTICULAR, AXANE SHALL CAUSE:
(A)
THE JV COMPANY TO REQUEST THE PRESIDENT OF THE COMPETENT COMMERCIAL
COURT (TRIBUNAL DE COMMERCE) TO APPOINT A CONTRIBUTION AUDITOR (COMMISSAIRE AUX
APPORTS) IN ORDER TO CONFIRM THE VALUATION OF THE PLUG POWER CONTRIBUTION (THE
"CONTRIBUTION AUDITOR") AND WILL PROPOSE AS CONTRIBUTION AUDITOR MR. VINCENT
BAILLOT (BDO), AND IF A SECOND CONTRIBUTION AUDITOR IS REQUIRED, MR. JEAN PIERRE
CORDIER (GRANT THORNTON);
(B)
THE JV COMPANY TO PROVIDE TO THE CONTRIBUTION AUDITOR ALL RELEVANT
AND REASONABLE INFORMATION TO ALLOW THE CONTRIBUTION AUDITOR TO DRAFT HIS
REPORT, IT BEING SPECIFIED THAT PLUG POWER SHALL PROVIDE ALL NECESSARY AND
REASONABLE INFORMATION TO THE JV COMPANY WITH RESPECT THERETO AND THAT PLUG
POWER SHALL BE INVITED TO PARTICIPATE TO ANY DISCUSSION AND WRITTEN
COMMUNICATION WITH THE CONTRIBUTION AUDITOR AND TO MAKE ANY OBSERVATIONS ON
HIS/HER DRAFT REPORT, WITH REASONABLE PRIOR NOTICE, PROVIDED THAT ANY
INFORMATION PROVIDED BY PLUG POWER PURSUANT TO THIS SECTION WILL BE SUBJECT TO
THE CONFIDENTIALITY PROVISIONS OF SECTION 19.2 AND, IN CASE THE CLOSING DOES NOT
OCCUR AND THE AGREEMENT IS TERMINATED IN ACCORDANCE WITH SECTION 6.2,