AUTHORITY.
8.4.
INTELLECTUAL PROPERTY
(A)
PLUG POWER VALIDLY OWNS ALL THE RIGHTS, TITLE AND INTEREST IN AND
TO THE TECHNOLOGY AND IP RIGHTS PURSUANT TO THE LAWS GOVERNING SUCH TECHNOLOGY
AND IP RIGHTS (AS FURTHER DESCRIBED IN THE SCHEDULES TO THE LICENSE AGREEMENT)
FREE AND CLEAR OF ANY ENCUMBRANCES.
(B)
NO CLAIM HAS BEEN ASSERTED OR ACTION HAS BEEN INITIATED OR
THREATENED BY ANY THIRD PARTY (OR, TO THE KNOWLEDGE OF PLUG POWER, IS LIKELY TO
ARISE) WHICH CHALLENGES PLUG POWER'S RIGHTS IN THE TECHNOLOGY AND IP RIGHTS, OR
ALLEGES THAT THE TECHNOLOGY AND IP RIGHTS ARE INVALID, UNENFORCEABLE, OR THAT
THE TECHNOLOGY AND IP RIGHTS OR THE USE THEREOF BY PLUG POWER OR ITS AFFILIATES
ARE INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF ANY SUCH THIRD PARTY.
(C)
NO LICENSES ON THE TECHNOLOGY AND IP RIGHTS HAVE BEEN GRANTED TO A
THIRD PARTY OR ANY AFFILIATE OF PLUG POWER WITH RESPECT TO THE TERRITORY.
ALL
OTHER LICENSES GRANTED BY PLUG POWER ON THE TECHNOLOGY AND IP RIGHTS ARE
DISCLOSED IN SCHEDULE 8.4(C) HERETO.
(D)
SUBJECT TO THE TERMS OF THE LICENSE AGREEMENT, THE JV COMPANY WILL
HAVE, UPON CLOSING, ACCESS TO ALL
DOCUMENTS AND MATERIALS OWNED BY PLUG POWER
THAT DOCUMENT, DESCRIBE OR EMBODY THE TECHNOLOGY AND IP RIGHTS OR THE SUBJECT
MATTER THEREOF SUFFICIENT TO PERMIT THE JV COMPANY TO EXERCISE ITS RIGHTS
PURSUANT TO THE LICENSE AGREEMENT.
22
ARTICLE IX
INDEMNIFICATION
WITHOUT PREJUDICE TO EACH PARTY'S RIGHT TO SEEK INDEMNIFICATION (THE
"INDEMNIFIED PARTY") FROM THE OTHER PARTY (THE "INDEMNIFYING PARTY") FOR ANY
OTHER BREACH OF ITS UNDERTAKINGS UNDER THIS AGREEMENT, THE CONTRIBUTION AND
LICENSE AGREEMENT AND/OR THE ANCILLARY AGREEMENTS, THE INDEMNIFYING PARTY
UNDERTAKES TO INDEMNIFY AND HOLD THE INDEMNIFIED PARTY HARMLESS FROM AND AGAINST
THE LOSSES AND EXPENSES INCURRED BY THE INDEMNIFIED PARTY AND/OR THE JV COMPANY
ARISING FROM ANY BREACH, INACCURACY OF, OR OMISSION IN, ANY REPRESENTATION OR
WARRANTY OF THE INDEMNIFYING PARTY CONTAINED IN ARTICLE VII (WITH RESPECT TO THE
REPRESENTATIONS AND WARRANTIES OF AXANE) OR ARTICLE VIII (WITH RESPECT TO THE
REPRESENTATIONS AND WARRANTIES OF PLUG POWER) HEREIN.
ARTICLE X
ADDITIONAL UNDERTAKINGS
10.1.
NON COMPETE.
(A)
THE PARTIES AGREE THAT THEY WILL NOT CARRY OUT, TAKE ANY INTEREST
OR ENGAGE - IN THE TERRITORY - IN ANY CAPACITY WHATSOEVER (INCLUDING AS A
MINORITY SHAREHOLDER), WHETHER DIRECTLY OR INDIRECTLY AND FOR AS LONG AS THEY
REMAIN SHAREHOLDERS OF THE JV COMPANY, IN ANY DEVELOPMENT AND/OR SALES ACTIVITY
DIRECTLY COMPETING WITH THE PROJECT.
(B)
PARAGRAPH (A) ABOVE SHALL NOT PREVENT PLUG POWER FROM DIRECTLY
PURSUING SPECIFIC OPPORTUNITIES FALLING WITHIN THE SCOPE OF THE PROJECT WITH
CUSTOMERS LOCATED WITHIN THE TERRITORY. PLUG POWER SHALL HOWEVER GIVE PRIOR
WRITTEN NOTICE THEREOF TO AND REQUEST THE JV COMPANY WHETHER THE JV COMPANY
WANTS TO PURSUE THIS OPPORTUNITY.
FOR THIS PURPOSE, PLUG POWER SHALL PROVIDE
THE JV COMPANY IN WRITING WITH A PRELIMINARY ASSESSMENT OF THE MAIN FEATURES OF
THE CONTEMPLATED CUSTOMER ARRANGEMENT, INCLUDING, IF AVAILABLE, INFORMATION
REGARDING THE CUSTOMER REQUIREMENTS AND THE TRANSACTION TERMS AND CONDITIONS.
THE BOARD OF