AT THE CLOSING DATE, OF ALL
LEGAL REPRESENTATIVES OF THE JV COMPANY;
(D)
A CERTIFIED COPY OF THE SUBSCRIPTION FORM TO THE SHARES ISSUED IN
CONSIDERATION FOR THE AXANE CONTRIBUTION;
(E)
ORIGINAL COPIES OF EACH OF THE ANCILLARY AGREEMENTS TO WHICH
AXANE, ANY OF ITS AFFILIATES AND/OR THE JV COMPANY, AS THE CASE MAY BE, IS A
PARTY, ALL DULY EXECUTED BY THE LEGAL REPRESENTATIVE(S) OF AXANE, ANY OF ITS
AFFILIATES AND/OR THE JV COMPANY, AS THE CASE MAY BE;
(F)
A CERTIFICATE CONFIRMING THAT THE NET EQUITY VALUE OF THE JV
COMPANY ON THE CLOSING DATE IS NOT LESS THAN EUR 10,000, TOGETHER WITH THE
ANNUAL ACCOUNTS OF THE JV COMPANY FOR THE FINANCIAL YEAR CLOSED ON DECEMBER 31,
2011; AND
(G)
A CERTIFICATE (IN THE FORM ATTACHED IN SCHEDULE 5.3(E))
REITERATING THE ABSENCE OF EVENTS REFERRED TO IN SECTION 6.1(B)(Y) AS AT THE
CLOSING DATE WITH RESPECT TO AXANE.
5.5.
ISSUANCE OF SHARES BY THE JV COMPANY
5.5.1
AXANE AND PLUG POWER SHALL BE THE HOLDERS OF THE JV COMPANY SHARES IN
ACCORDANCE WITH THE TERMS OF SECTION 11.1 BELOW, AND SHALL BENEFIT FROM ALL THE
RIGHTS AND OBLIGATIONS WITH RESPECT TO SAID JV COMPANY SHARES, IN PARTICULAR ANY
AND ALL VOTING RIGHTS AND RIGHTS TO DIVIDENDS ATTACHED THERETO, AS OF THE
CLOSING DATE.
5.5.2.
THE JV COMPANY SHALL CARRY OUT, AT ITS COSTS, ALL POST-CLOSING
FORMALITIES REQUIRED TO RENDER THE ABOVE ISSUANCE OF JV COMPANY SHARES AND OTHER
SHAREHOLDERS DECISIONS SET FORTH IN SECTION 5.2 BINDING ON THIRD PARTIES. AXANE
AND PLUG POWER UNDERTAKE TO ASSIST THE JV COMPANY, IF NECESSARY, WITH RESPECT TO
SUCH FORMALITIES AND EXECUTE ANY ADDITIONAL DOCUMENT WHICH MAY BE NECESSARY WITH
RESPECT THERETO.
19
ARTICLE VI
CONDITIONS PRECEDENT
6.1.
THE RESPECTIVE OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
SUBJECT TO THE SATISFACTION OR WAIVER BY AXANE AND BY PLUG POWER OF THE
FOLLOWING CONDITIONS PRECEDENT (THE "CONDITIONS PRECEDENT") ON OR PRIOR TO THE
CLOSING DATE:
(A)
SUBJECT TO THE TERMS OF SECTION 3.2.3 (AND IN PARTICULAR, SECTION
3.2.3(II)), THE OBTAINING OF THE REPORT OF THE CONTRIBUTION AUDITOR PRIOR TO THE
CLOSING DATE AND THE COMPLETION, ON THE CLOSING DATE, OF THE AXANE CONTRIBUTION
AND THE PLUG POWER CONTRIBUTION AND THE CONFIRMATION THAT THE REPORT OF THE
CONTRIBUTION AUDITOR DOES NOT VALUE THE PLUG POWER CONTRIBUTION TO LESS THAN EUR
4,037,000 (FOUR MILLION THIRTY SEVEN THOUSAND EUROS). FOR THIS PURPOSE, THE
PARTIES AND THE JV COMPANY SHALL TAKE ALL REASONABLE ACTIONS TO CARRY OUT THE
AXANE CONTRIBUTION AND THE PLUG POWER CONTRIBUTION AS SOON AS POSSIBLE;
(B)
THE ABSENCE OF (I) ANY CLAIM FROM ANY THIRD PARTY AGAINST PLUG
POWER AND/OR THE JV COMPANY WITH RESPECT TO THE TECHNOLOGY AND IP RIGHTS AND
(II) ANY CHANGE OR EVENT WHICH IS UNFORESEEABLE AS AT THE DATE HEREOF AND
OUTSIDE ANY PARTIES' CONTROL RESULTING IMMEDIATELY OR IN THE FUTURE IN A DIRECT
AND CERTAIN MATERIAL ADVERSE EFFECT ON THE FINANCIAL CONDITION OR SITUATION AND
THE COMMERCIAL PERSPECTIVE OF THE JV COMPANY AND/OR ANY OF