HOWEVER, THAT NO SUCH
CONSENT SHALL BE REQUIRED IN CONNECTION WITH ANY ACQUISITION OF THE COMPANY OR A
MAJORITY OF THE OUTSTANDING SHARES OF COMMON STOCK OR A SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE COMPANY, IN EACH CASE IN A SINGLE OR
SERIES OF RELATED TRANSACTIONS, OR IN THE CASE OF ANY OTHER ASSIGNMENT BY
OPERATION OF LAW.
THE PURCHASER MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR
OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY, PROVIDED
THAT THE PURCHASER MAY ASSIGN ITS RIGHTS AND OBLIGATIONS UNDER ARTICLE 6 TO A
TRANSFEREE OF ANY SHARES WITHOUT THE CONSENT OF THE COMPANY.
17
8.9
THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO, THEIR RESPECTIVE PERMITTED SUCCESSORS AND ASSIGNS
AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED BY, ANY
OTHER PERSON.
8.10
FURTHER ASSURANCES.
EACH PARTY WILL DO AND PERFORM, OR CAUSE TO BE
DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND WILL EXECUTE AND
DELIVER ALL OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS
ANOTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
8.11
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT IS DEEMED
TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL INTENT, AND NO
RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
8.12
EQUITABLE RELIEF.
THE PURCHASER RECOGNIZES THAT, IF IT FAILS TO
PERFORM OR DISCHARGE ANY OF ITS OBLIGATIONS UNDER THIS AGREEMENT, ANY REMEDY AT
LAW MAY PROVE TO BE INADEQUATE RELIEF TO THE COMPANY.
THE PURCHASER THEREFORE
AGREES THAT THE COMPANY IS ENTITLED TO SEEK TEMPORARY AND PERMANENT INJUNCTIVE
RELIEF IN ANY SUCH CASE.
8.13
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
NOTWITHSTANDING ANY
INVESTIGATION MADE BY ANY PARTY TO THIS AGREEMENT, ALL REPRESENTATIONS AND
WARRANTIES MADE BY THE COMPANY AND THE PURCHASER HEREIN SHALL SURVIVE FOR A
PERIOD OF TWO YEARS FOLLOWING THE DATE HEREOF.
[Signature Page Follows]
18
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
PLUG POWER INC.
By:
/s/ Andrew Marsh
Name: Andrew Marsh
Title: President and Chief Executive Officer
AIR LIQUIDE INVESTISSEMENTS D'AVENIR ET DE DEMONSTRATION
By:
/s/ Pierre-Etienne Franc
Name: /s/ Pierre-Etienne Franc
Title: Chief Executive Officer
[SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE]
Exhibit A
Form of Certification of Designations
CERTIFICATE OF DESIGNATIONS
OF
SERIES C REDEEMABLE CONVERTIBLE
PREFERRED STOCK
OF
PLUG POWER INC.
PLUG POWER INC. (the "Corporation"), a corporation organized and existing under
the General Corporation Law of the State of Delaware (the "General Corporation
Law"), in accordance with the provisions of Section 103 thereof,
DOES HEREBY CERTIFY:
Pursuant to the authority conferred upon the Board of Directors by the
Corporation's Amended and Restated Certificate of Incorporation, as amended (the
"Certificate of Incorporation"),