THE PARTIES
(INCLUDING ANY COURT-ORDERED OR SIMILAR LIQUIDATION OR RESTRUCTURING WITH
RESPECT TO ANY OF THE PARTIES);
(C)
THE ISSUANCE BY SILICON VALLEY BANK OF A WAIVER IN FAVOR OF PLUG
POWER WHEREBY SILICON VALLEY BANK (I) WAIVES IT RIGHTS UNDER PLUG POWER'S
OBLIGATION TO PLEDGE THE JV COMPANY SHARES IN ITS FAVOR AND (II) ALLOWS PLUG
POWER TO PLEDGE THE JV COMPANY SHARES IN FAVOR OF AXANE AND/OR ANY AFFILIATE AS
PROVIDED IN SECTION 10.4(H).
6.2.
IF ON APRIL 30, 2012 AT THE LATEST (OR ON ANY OTHER DATE AS SHALL
BE AGREED UPON BY THE PARTIES), THE CONDITIONS PRECEDENT HAVE NOT BEEN SATISFIED
OR EXPRESSLY WAIVED BY AXANE AND BY PLUG POWER, THIS AGREEMENT SHALL LAPSE AND
BECOME NULL AND VOID (EXCEPT AS CONCERNS THE CONFIDENTIALITY OBLIGATIONS) AND NO
EXPENSES OR DAMAGES OF ANY KIND SHALL BE DUE BETWEEN THE PARTIES, EXCEPT IN CASE
OF FRAUD OR BAD FAITH.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF AXANE
Axane represents and warrants to Plug Power that each of the statements set
forth below is and will be true and correct as at the date hereof and the
Closing Date:
7.1.
ORGANIZATION OF THE JV COMPANY
(A)
THE JV COMPANY IS A COMPANY DULY INCORPORATED UNDER THE FORM OF A
SOCIÉTÉ PAR ACTIONS SIMPLIFIÉE, ORGANIZED, REGISTERED AND VALIDLY EXISTING UNDER
THE LAWS OF FRANCE;
20
(B)
THE JV COMPANY HAS NOT CARRIED OUT ANY BUSINESS AND HAS NOT
INCURRED ANY DIRECT OR INDIRECT LIABILITY (EXCEPT FOR ORDINARY AUDITOR AND
CORPORATE SECRETARIAL EXPENSES FOR A MAXIMUM GLOBAL AMOUNT OF EUR 40,000 EUROS
SINCE ITS CONSTITUTION), WHETHER ACTUAL OR CONTINGENT, SINCE ITS CONSTITUTION;
IT HAS NOT TAKEN OVER ANY ACTS PERFORMED PRIOR TO ITS CONSTITUTION OR
REGISTRATION. THE NET EQUITY OF THE JV COMPANY IS NOT LESS THAN EUR 10,000;
(C)
EXCEPT AS PROVIDED HEREIN, NO PERSON HAS THE RIGHT (EXERCISABLE NOW
OR IN THE FUTURE AND WHETHER CONTINGENT OR NOT) TO CALL FOR THE ISSUE OF ANY
SHARE IN THE JV COMPANY, WHICH SHALL BE COMPOSED, IMMEDIATELY PRIOR TO THE
CLOSING, OF 5,000 (FIVE THOUSAND) SHARES, ALL ORDINARY AND FULLY PAID UP
(SUBJECT TO ANY POTENTIAL SHARE CANCELLATION TO TAKE PLACE PRIOR TO THE AXANE
CONTRIBUTION); AND
(D)
IMMEDIATELY PRIOR TO THE CLOSING, AXANE WILL BE THE SOLE LEGAL AND
BENEFICIAL OWNER OF THE SHARES OF THE JV COMPANY.
7.2.
ORGANIZATION OF AXANE.
AXANE IS A COMPANY DULY ORGANIZED,
INCORPORATED AND VALIDLY EXISTING UNDER THE LAWS OF FRANCE WITH FULL POWER TO
CONDUCT ITS BUSINESS AS CONDUCTED AS AT THE DATE OF THIS AGREEMENT. AXANE IS NOT
AND HAS NOT BEEN SUBJECT TO ANY COURT-ORDERED OR SIMILAR LIQUIDATION OR
RESTRUCTURING (PROCÉDURE COLLECTIVE) AND HAS NOT AND WILL NOT, ON THE CLOSING
DATE, HAVE SUSPENDED ITS PAYMENTS OR MADE ANY VOLUNTARY ARRANGEMENT WITH ITS
CREDITORS. TO AXANE'S KNOWLEDGE, NO ANY SUCH SUSPENSION OR ARRANGEMENT IS LIKELY
TO ARISE.
7.3.
AUTHORITY OF AXANE.
THE EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT AND THE RELEVANT ANCILLARY AGREEMENTS BY AXANE HAVE BEEN DULY
AUTHORIZED AND