AFFILIATES TO OSEO INNOVATION ON BEHALF OF THE JV COMPANY,
IF AND SUBJECT TO PLUG POWER PROVIDING, WITHIN FIFTEEN (15) DAYS FOLLOWING THE
EXPIRY OF THE PERIOD, AXANE AND/OR ITS AFFILIATES WITH (I) BACK-TO-BACK
GUARANTEES COVERING ALL THE OBLIGATIONS OF AXANE AND ITS AFFILIATES TOWARDS OSEO
INNOVATION RESULTING FROM THE ACTIVITIES OF THE JV COMPANY AND (II) A VALID AND
ENFORCEABLE PLEDGE OVER ALL THE JV COMPANY SHARES HELD BY PLUG POWER AND/OR ITS
AFFILIATES AS A SECURITY FOR THE OBLIGATIONS RESULTING FROM SUCH BACK-TO-BACK
GUARANTEES. THE ABOVE MENTIONED GUARANTEES, BACK-TO-BACK GUARANTEES AND
ASSOCIATED PLEDGE SHALL CEASE TO EXIST AND BE RELEASED UPON THE FULL
SATISFACTION OF ALL THE OBLIGATIONS OF THE JV COMPANY TOWARDS OSEO INNOVATION
UNDER H2E COLLABORATION PROGRAM.
THE PARTIES SHALL MAKE THEIR BEST EFFORTS TO
OBTAIN THE RELEASE OF AXANE AND ITS AFFILIATES FROM ANY AND ALL THEIR
OBLIGATIONS UNDER ANY OUTSTANDING GUARANTEE(S) IN THE EVENT PLUG POWER AND/OR
ITS AFFILIATES CEASE TO BE COLLECTIVELY THE MAJORITY SHAREHOLDER OF THE JV
COMPANY.
THE OBLIGATIONS OF THE PARTIES UNDER THIS SECTION 10.4(H) ARE REFERRED TO
HEREAFTER AS THE "TERMINATION OBLIGATIONS").
10.5.
CIRCUIT BREAKER
(A)
AS SOON AS POSSIBLE AFTER THE SIGNING OF THIS AGREEMENT, THE
PARTIES SHALL SEEK, AND CAUSE THE JV COMPANY TO SEEK, THE OSEO APPROVAL IN
ACCORDANCE WITH SECTION 2.3.1(E);
(B)
UNTIL THE OBTAINING OF THE OSEO APPROVAL, THE JV COMPANY SHALL
CARRY OUT ITS BUSINESS IN ACCORDANCE WITH THE BUSINESS PLAN AND IN PARTICULAR,
SHALL PAY TO THE PARTIES OR THEIR AFFILIATES, AS THE CASE MAY BE, ANY AMOUNTS
DUE IN RESPECT OF THE ANCILLARY AGREEMENTS;
(C)
FROM THE EARLIER OF (I) THE DATE ON WHICH AXANE CONFIRMS TO PLUG
POWER THAT THE OSEO APPROVAL HAS NOT BEEN OBTAINED OR (II) JUNE 30, 2012, IF THE
OSEO APPROVAL IS NOT YET OBTAINED BY THAT DATE, THE PARTIES SHALL WORK TOGETHER
IN ORDER TO TRY TO REACH AN AGREEMENT IN GOOD FAITH ON THE FUTURE OF THE JV
COMPANY, AND IN PARTICULAR ON ANY ALTERNATIVE WAY OF FINANCING THE JV COMPANY,
SUBJECT ALWAYS TO THE PROVISIONS OF ARTICLE III AND ARTICLE XV. FROM THIS DATE
FORWARD, THE JV COMPANY SHALL NOT INCUR ANY NEW EXPENSES (EXCEPT CONTINUED LABOR
EXPENSES) UNTIL THE PRIOR WRITTEN APPROVAL OF THE PARTIES ON A REVISED BUDGET
(INCLUDING FINANCING PLAN) WITH RESPECT TO THE JV COMPANY;
(D)
IF THE OSEO APPROVAL IS NOT OBTAINED BY SEPTEMBER 30, 2012, EITHER
PARTY MAY WITHIN A THIRTY (30) DAY PERIOD FOLLOWING SEPTEMBER 30, 2012, NOTIFY
TO THE OTHER PARTY (A "WIND-UP NOTICE"), THAT THE JV COMPANY BE WOUND UP.
FOLLOWING ANY WIND-UP NOTICE, THE PARTIES WILL (I) CONSULT EACH OTHER AND EACH
USE THEIR COMMERCIALLY REASONABLE EFFORTS TO COMPLETE SUCH WINDING-UP IN AN
ORDERLY FASHION AS SOON AS POSSIBLE, (II) VOTE AT ANY SHAREHOLDERS MEETINGS THE
DISSOLUTION OF THE COMPANY AND THE APPOINTMENT OF A LIQUIDATOR, AND (II) TAKE
ALL NECESSARY ACTIONS TO TERMINATE THE ANCILLARY AGREEMENTS (AND THE LICENSE
AGREEMENT IN PARTICULAR), AS SOON AS POSSIBLE;
(E)
THE FINANCIAL RESOURCES OF THE