DIRECTORS OF THE JV COMPANY SHALL HAVE FOURTEEN (14) BUSINESS DAYS
FOLLOWING RECEIPT OF THE ABOVE NOTIFICATION TO MAKE A DECISION AS A RESERVED
MATTER TO ACCEPT THAT PLUG POWER PURSUES THIS OPPORTUNITY INDEPENDENTLY OF THE
JV COMPANY.
IF THE BOARD OF DIRECTORS DECIDES NOT TO PURSUE THIS OPPORTUNITY ITSELF, IT
SHALL GIVE PLUG POWER A WRITTEN WAIVER OF THE JV COMPANY'S EXCLUSIVITY WITHIN
THE ABOVE TIME PERIOD. SAID WAIVER SHALL COVER THE PARTICULAR CUSTOMER FOR THE
SPECIFIC SITE REFERRED TO IN THE INFORMATION PROVIDED TO THE JV COMPANY, IT
BEING SPECIFIED THAT ANY FUTURE ARRANGEMENT WITH THE SAME CUSTOMER BUT RELATING
TO A DIFFERENT SITE OF THE CUSTOMER IN THE TERRITORY SHALL FOLLOW THE SAME
PROCESS AND BE SUBMITTED TO THE JV COMPANY. SUCH WAIVER SHALL FURTHER NOT BE
UNREASONABLY WITHHELD BY THE JV COMPANY. FAILURE OF THE JV COMPANY TO ISSUE A
WRITTEN RESPONSE WITHIN THE ABOVE FOURTEEN (14) BUSINESS DAY PERIOD SHALL MEAN
THAT THE JV COMPANY DOES NOT WISH TO PURSUE THE OPPORTUNITY AND THAT PLUG POWER
IS FREE TO PURSUE ITS INITIATIVE INDEPENDENTLY OF THE JV COMPANY.
IF THE JV
COMPANY INITIALLY DECIDES TO PURSUE THE OPPORTUNITY BUT THEREAFTER AT ANY TIME
STOPS THE RELATED DISCUSSIONS WITH THE CUSTOMER OR THE DISCUSSIONS BETWEEN THE
CUSTOMER AND THE JV COMPANY CEASE DEFINITIVELY AND THE JV COMPANY DECIDES NOT TO
CONCLUDE THE TRANSACTION, IT SHALL INFORM PLUG POWER THEREOF AND PLUG POWER
SHALL AGAIN BE FREE TO FURTHER PURSUE SUCH OPPORTUNITY ON ITS OWN.
23
(C)
THE PROVISIONS OF THIS SECTION 10.1 SHALL NOT PREVENT THE PARTIES
FROM CARRYING ON THEIR RESPECTIVE EXISTING ACTIVITIES OUTSIDE THE SCOPE OF THE
JV COMPANY (INCLUDING, FOR THE AVOIDANCE OF DOUBT, THE SUPPLY AND SALE BY ANY
ENTITY OF THE AIR LIQUIDE GROUP OF HYDROGEN GAS AND/OR HYDROGEN REFUELING
STATIONS AND/OR HYDROGEN PRODUCTION UNITS TO ANY THIRD PARTY, WHETHER OR NOT IN
THE HANDLING MARKET, AND FUEL CELL SYSTEMS OUTSIDE OF THE HANDLING MARKET IN THE
TERRITORY AND FUEL CELL SYSTEMS IN THE HANDLING MARKET OUTSIDE OF THE
TERRITORY). FOR THE AVOIDANCE OF DOUBT, THE JV COMPANY SHALL, WITHIN THE SCOPE
OF THE PROJECT AND WITHIN THE TERRITORY, BE FREE TO ENTER INTO ANY COMMERCIAL
ARRANGEMENT WITH A CUSTOMER WHICH SECURES ITS HYDROGEN GAS SUPPLY, SOLUTIONS AND
STATIONS FROM COMPETITORS OF THE AIR LIQUIDE GROUP. WITHOUT PREJUDICE TO SECTION
13.2 PLUG POWER SHALL BE FREE TO ENTER INTO ANY RELATIONSHIP WITH ANY
COMPETITORS OF THE AIR LIQUIDE GROUP OUTSIDE THE SCOPE OF THE PROJECT AND/OR
OUTSIDE THE TERRITORY.
(D)
IN THE EVENT OF THE EXERCISE OF THE IP CLAIM PUT OPTION, THE FIRST
PUT OPTION AND/OR THE SECOND PUT OPTION, THE PARTIES SHALL NEGOTIATE IN GOOD
FAITH AND SEEK TO AGREE ON THE TERMS OF A DISTRIBUTION AGREEMENT WHEREBY AXANE
AND/OR ITS AFFILIATE MAY DISTRIBUTE GENDRIVE UNITS IN THE TERRITORY.
10.2.
NON SOLICITATION. THE PARTIES AGREE FOR THEMSELVES AND FOR ANY OF
THEIR AFFILIATES THAT THEY AND THEIR AFFILIATES WILL NOT, FOR AS LONG THEY
REMAIN PARTIES TO THIS AGREEMENT