-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EDrEaFn3nykUiYG6NcCXrlfzQaDDZBR6WfCkfnFNLP6RCnv08hZ8g90NPLJUNe5e jwN86iuYfUPJHUSUxEJp3w== 0000950129-06-004150.txt : 20060420 0000950129-06-004150.hdr.sgml : 20060420 20060420121907 ACCESSION NUMBER: 0000950129-06-004150 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 13 FILED AS OF DATE: 20060420 DATE AS OF CHANGE: 20060420 GROUP MEMBERS: BRANTON LIMITED GROUP MEMBERS: CLAYBURN DEVELOPMENT INC. GROUP MEMBERS: MIKHAIL D. PROKHOROV GROUP MEMBERS: MMC NORILSK NICKEL GROUP MEMBERS: SMART HYDROGEN INC. GROUP MEMBERS: VLADIMIR O. POTANIN SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PLUG POWER INC CENTRAL INDEX KEY: 0001093691 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRICAL INDUSTRIAL APPARATUS [3620] IRS NUMBER: 223672377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-57471 FILM NUMBER: 06769185 BUSINESS ADDRESS: STREET 1: 968 ALBANY-SHAKER ROAD CITY: LATHAM STATE: NY ZIP: 12110 BUSINESS PHONE: 5187827700 MAIL ADDRESS: STREET 1: 968 ALBANY-SHAKER ROAD CITY: LATHAM STATE: NY ZIP: 12110 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Smart Hydrogen Inc CENTRAL INDEX KEY: 0001359862 IRS NUMBER: 000000000 STATE OF INCORPORATION: A1 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 4 UNIVERSITY ROW STREET 2: SUITE #405 CITY: CAMBRIDGE STATE: MA ZIP: 02138 BUSINESS PHONE: 617-230-7810 MAIL ADDRESS: STREET 1: 4 UNIVERSITY ROW STREET 2: SUITE #405 CITY: CAMBRIDGE STATE: MA ZIP: 02138 SC 13D 1 h35166sc13d.htm SMART HYDROGEN INC. sc13d
 

     
 
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No.  )*

PLUG POWER INC.
(Name of Issuer)
Common Stock, par value $0.01 per share
(Title of Class of Securities)
72919P103
(CUSIP Number)
Gregory J. Golden
Baker Botts L.L.P.
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2400
(202) 639-7700
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
April 10, 2006
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.

 
 


 

                     
CUSIP No.
 
72919P103 

 

           
1   NAMES OF REPORTING PERSONS:

SMART HYDROGEN INC.
   
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS):
   
  AF, OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION:
   
  British Virgin Islands
       
  7   SOLE VOTING POWER:
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER:
BENEFICIALLY    
OWNED BY   13,732,927
       
EACH 9   SOLE DISPOSITIVE POWER:
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER:
     
    2,714,700
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
   
  13,732,927
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
   
  15.8%
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):
   
  CO

Page 2


 

                     
CUSIP No.
 
72919P103 

 

           
1   NAMES OF REPORTING PERSONS:

MMC NORILSK NICKEL
   
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS):
   
  AF, OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION:
   
  Russian Federation
       
  7   SOLE VOTING POWER:
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER:
BENEFICIALLY    
OWNED BY   13,732,927
       
EACH 9   SOLE DISPOSITIVE POWER:
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER:
     
    2,714,700
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
   
  13,732,927
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
   
  15.8%
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):
   
  HC

Page 3


 

                     
CUSIP No.
 
72919P103 

 

           
1   NAMES OF REPORTING PERSONS:

CLAYBURN DEVELOPMENT INC.
   
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS):
   
  AF, OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION:
   
  British Virgin Islands
       
  7   SOLE VOTING POWER:
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER:
BENEFICIALLY    
OWNED BY   13,732,927
       
EACH 9   SOLE DISPOSITIVE POWER:
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER:
     
    2,714,700
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
   
  13,732,927
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
   
  15.8%
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):
   
  HC

Page 4


 

                     
CUSIP No.
 
72919P103 

 

           
1   NAMES OF REPORTING PERSONS:

BRANTON LIMITED
   
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS):
   
  WC, OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION:
   
  Bahamas
       
  7   SOLE VOTING POWER:
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER:
BENEFICIALLY    
OWNED BY   13,732,927
       
EACH 9   SOLE DISPOSITIVE POWER:
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER:
     
    2,714,700
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
   
  13,732,927
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
   
  15.8%
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):
   
  HC

Page 5


 

                     
CUSIP No.
 
72919P103 

 

           
1   NAMES OF REPORTING PERSONS:

MIKHAIL D. PROKHOROV
   
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS):
   
  AF, OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION:
   
  Russian Federation
       
  7   SOLE VOTING POWER:
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER:
BENEFICIALLY    
OWNED BY   13,732,927
       
EACH 9   SOLE DISPOSITIVE POWER:
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER:
     
    2,714,700
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
   
  13,732,927
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
   
  15.8%
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):
   
  IN

Page 6


 

                     
CUSIP No.
 
72919P103 

 

           
1   NAMES OF REPORTING PERSONS:

VLADIMIR O. POTANIN
   
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY):
 
 
     
2   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (SEE INSTRUCTIONS):

  (a)   þ 
  (b)   o 
     
3   SEC USE ONLY:
   
   
     
4   SOURCE OF FUNDS (SEE INSTRUCTIONS):
   
  AF, OO
     
5   CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e):
   
  o
     
6   CITIZENSHIP OR PLACE OF ORGANIZATION:
   
  Russian Federation
       
  7   SOLE VOTING POWER:
     
NUMBER OF   0
       
SHARES 8   SHARED VOTING POWER:
BENEFICIALLY    
OWNED BY   13,732,927
       
EACH 9   SOLE DISPOSITIVE POWER:
REPORTING    
PERSON   0
       
WITH 10   SHARED DISPOSITIVE POWER:
     
    2,714,700
     
11   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON:
   
  13,732,927
     
12   CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (SEE INSTRUCTIONS):
   
  o
     
13   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11):
   
  15.8%
     
14   TYPE OF REPORTING PERSON (SEE INSTRUCTIONS):
   
  IN

Page 7


 

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Statement of
Smart Hydrogen Inc.
Pursuant to Section 13(d) of the Securities Exchange Act of 1934
in respect of
Plug Power Inc.
Item 1. Security and Issuer
This Statement on Schedule 13D (the “Statement”) is being filed with respect to the common stock, $0.01 per share (the “Common Stock”), of Plug Power Inc. a Delaware corporation (the “Issuer”). The Issuer’s principal executive offices are located at 968 Albany-Shaker Road, Latham, New York 12110.
Item 2. Identity and Background
Pursuant to Rule 13d-1(k)(1) of the Securities Exchange Act of 1934, as amended (the “Act”), this Statement is being filed by the following entities and individuals (each a “Reporting Person” and collectively, the “Reporting Persons”):
SMART HYDROGEN INC.
Smart Hydrogen Inc. is a BVI Business Company organized under the laws of the British Virgin Islands (“Smart Hydrogen”). Smart Hydrogen’s principal business purpose is to invest in companies involved in the hydrogen fuel cell industry. The address of Smart Hydrogen’s principal business and principal office is 4 University Row, Suite #405, Cambridge, Massachusettes 02138.
See Exhibit A for information concerning the sole executive officer/director of Smart Hydrogen. During the past five years, neither Smart Hydrogen nor, to the best of Smart Hydrogen’s knowledge, such person has been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. During the last five years, neither Smart Hydrogen nor, to the best of Smart Hydrogen’s knowledge, such person was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws.
MMC NORILSK NICKEL
MMC Norilsk Nickel is an open joint-stock company organized under the laws of the Russian Federation (“Norilsk Nickel”). Norilsk Nickel’s principal business is the producing and selling

Page 8


 

of various base and precious metals. The address of Norilsk Nickel’s principal business and principal office is 22, Voznesensky Pereulok, Moscow, 125009, Russia.
See Exhibit A for information concerning the executive officers and directors of Norilsk Nickel. During the past five years, neither Norilsk Nickel nor, to the best of Norilsk Nickel’s knowledge, any of such persons has been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. During the last five years, neither Norilsk Nickel nor, to the best of Norilsk Nickel’s knowledge, any of such persons was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws.
CLAYBURN DEVELOPMENT INC.
Clayburn Development Inc. is an International Business Company organized under the laws of the British Virgin Islands (“Clayburn”). Clayburn is an indirect wholly-owned subsidiary of Norilsk Nickel. Clayburn’s principal business purpose is to act as a holding company. Clayburn owns 49.995% of Smart Hydrogen’s outstanding shares. The address of Clayburn’s principal business and principal office is Pasea Estate, Road Town, Tortola, British Virgin Islands.
See Exhibit A for information concerning the sole executive officer/director of Clayburn. During the past five years, neither Clayburn nor, to the best of Clayburn’s knowledge, such person has been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. During the last five years, neither Clayburn nor, to the best of Clayburn’s knowledge, such person was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws.
BRANTON LIMITED
Branton Limited is an International Business Company organized under the laws of the Commonwealth of the Bahamas (“Branton”). Branton’s principal business purpose is to act as a holding company. Branton owns 49.995% of Smart Hydrogen’s outstanding shares. The address of Branton’s principal business and principal office is Kings Court, 1st Floor, Bay Street, P.O. Box N-3944, Nassau, Bahamas.
See Exhibit A for information concerning the sole executive officer/director of Branton. During the past five years, neither Branton nor, to the best of Branton’s knowledge, such person has been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. During the last five years, neither Branton nor, to the best of Branton’s knowledge, of such person was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding such person was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject

Page 9


 

to, United States federal or state securities laws or finding any violation with respect to such laws.
MIKHAIL D. PROKHOROV
Mikhail D. Prokhorov is a citizen of the Russian Federation whose present principal occupation is Chief Executive Officer (General Director) and Chairman of the Management Board of Norilsk Nickel. As of the date hereof, Mr. Prokhorov beneficially owns 27.39% of the outstanding stock of Norilsk Nickel. As of the date hereof, Mr. Prokhorov beneficially owns 49.9967% of the outstanding equity interests of Branton. Mr. Prokhorov’s principal business address is 22, Voznesensky Pereulok, Moscow 125009, Russia. During the past five years, Mr. Prokhorov has not been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. During the last five years, Mr. Prokhorov has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding he was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws.
VLADIMIR O. POTANIN
Vladimir O. Potanin is a citizen of the Russian Federation whose present principal occupation is Chairman of the Board of Directors and President of Holding Company Interros (ZAO), a closed joint stock company organized under the laws of the Russian Federation (“Interros”). As of the date hereof, Mr. Potanin beneficially owns 27.39% of the outstanding stock of Norilsk Nickel. As of the date hereof, Mr. Potanin beneficially owns 49.9967% of the outstanding equity interests of Branton. Mr. Potanin’s principal business address is 9 Bolshaya Yakimanka Street, Moscow 119180, Russia. During the past five years, Mr. Potanin has not been convicted in a criminal proceeding, excluding traffic violations or similar misdemeanors. During the last five years, Mr. Potanin has not been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction where as a result of such proceeding he was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, United States federal or state securities laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds and Other Consideration.
This Statement relates to Smart Hydrogen’s acquisition of beneficial ownership of 13,732,927 shares of Common Stock through the GE Purchase Agreement (as defined herein) and through two voting agreements executed in connection with DTE Transaction (as defined herein). These shares constitute 15.8% of the Issuer’s outstanding Common Stock.
GE Purchase Agreement
On December 30, 2005, Smart Hydrogen acquired 2,714,700 shares of Common Stock from GE Power Systems Equities, Inc., a Delaware corporation (“GE”), pursuant to a Stock Purchase Agreement dated as of December 30, 2005, a copy of which is attached hereto as Exhibit B and is incorporated by reference herein (the “GE Purchase Agreement”). The consideration consisted of US$14,116,400 and such funds were loaned to Smart Hydrogen by Branton

Page 10


 

pursuant to a Loan Agreement, dated as of December 28, 2005, between Branton and Smart Hydrogen, a copy of which is attached hereto as Exhibit J and is incorporated by reference herein. Smart Hydrogen repaid such loan on March 3, 2006. The Common Stock purchased from GE pursuant to the GE Purchase Agreement represents 3.1% of the outstanding Common Stock of the Issuer.
DTE Transaction
On April 10, 2006, Smart Hydrogen and DTE Energy Foundation, a Michigan non-profit corporation (“DTE Foundation”), entered into a Voting Agreement And Irrevocable Proxy, dated as of April 10, 2006 (the “DTE Foundation Voting Agreement”), a copy of which is attached hereto as Exhibit E and is incorporated by reference herein. Pursuant to the DTE Foundation Voting Agreement, DTE Foundation has given Smart Hydrogen an irrevocable proxy to vote all of the shares of Common Stock beneficially owned by DTE Foundation in favor of the transaction described in Item 4 as the “Issuer Transaction.” DTE Foundation has represented to Smart Hydrogen that, as of April 10, 2006, it was the beneficial owner of 1,825,000 shares of Common Stock. Such stock represents 2.1% of the outstanding Common Stock of the Issuer.
Contemporaneously with the execution of the DTE Foundation Voting Agreement, Smart Hydrogen, DTE Energy Company, a Michigan corporation, and DTE Energy Ventures, Inc., a Michigan corporation and wholly-owned subsidiary of DTE Energy Company, entered into a Voting Agreement And Irrevocable Proxy (the “DTE Energy Voting Agreement”), a copy of which is attached hereto as Exhibit F and is incorporated by reference herein. Pursuant to the DTE Energy Voting Agreement, DTE Energy Company and DTE Energy Ventures, Inc. have given Smart Hydrogen an irrevocable proxy to vote all of the shares of Common Stock beneficially owned by each of them in favor of the transaction described in Item 4 as the “Issuer Transaction.” The information contained in the footnote to Item 4(a) of Amendment 3 to the Statement to Schedule 13G, filed by DTE Energy Company on February 14, 2006, indicates that DTE Energy Company is the beneficial owner of 9,193,227 shares of Common Stock. Such stock represents 10.6% of the outstanding Common Stock of the Issuer, assuming the exercise by DTE Energy Company of options to acquire 377,000 shares of Common Stock.
Pursuant to the DTE Foundation Voting Agreement and the DTE Energy Voting Agreement, Smart Hydrogen has acquired the power to direct the voting of up to 11,018,227 shares of Common Stock with respect to the approval of the Issuer Transaction. These shares constitute 12.7% of the Common Stock assuming the exercise by DTE Energy Company of options to acquire 377,000 shares of Common Stock. The consideration relating the DTE Foundation Voting Agreement and the DTE Energy Voting Agreement consists of Smart Hydrogen’s agreement to enter into the agreements associated with the DTE Transaction and Issuer Transaction and to consummate the transactions contemplated thereby.
The DTE Foundation Voting Agreement and DTE Energy Voting Agreement were executed in connection with a Stock Purchase Agreement, dated as of April 10, 2006, between Smart Hydrogen and DTE Foundation (the “DTE Foundation Purchase Agreement”), a copy of which is attached hereto as Exhibit D and is incorporated by reference herein. Pursuant to the DTE Foundation Purchase Agreement, Smart Hydrogen has agreed to purchase 1,825,000 shares of Common Stock from DTE Foundation for the purchase price of US$9,855,000. Such stock represents 2.1% of the outstanding Common Stock of the Issuer. The purchase of shares from DTE Foundation is conditioned upon the closing of the transaction described in Item 4 as the “Issuer Transaction.” The funds that will be used for the purchase of shares from DTE Foundation will come from Smart Hydrogen’s working capital.
The transactions contemplated by the DTE Foundation Voting Agreement, DTE Energy Voting Agreement, and DTE Foundation Purchase Agreement are sometimes referred to in this Statement collectively as the “DTE Transaction.”

Page 11


 

Item 4. Purpose of the Transaction
The information contained in Items 3, 5, and 6 of this Statement is hereby incorporated by reference into this Item 4.
This Statement relates to Smart Hydrogen’s acquisition of beneficial ownership of 13,732,927 shares of Common Stock through the GE Purchase Agreement, and DTE Foundation Voting Agreement, and the DTE Energy Voting Agreement described in Item 3. These shares constitute 15.8% of the Issuer’s outstanding Common Stock. Beneficial ownership of these shares has been acquired by Smart Hydrogen in connection with the Issuer Transaction described in this Item 4, which is a component of Smart Hydrogen’s broader strategy to invest in the hydrogen fuel cell industry in the United States and elsewhere.
The Issuer Transaction
On April 10, 2006, Smart Hydrogen entered into a Stock Purchase Agreement (the “Issuer Stock Purchase Agreement”) with the Issuer pursuant to which the Issuer agreed to sell 395,000 shares of Class B Capital Stock of the Issuer, which are convertible into 39,500,000 shares of Common Stock, to Smart Hydrogen for an aggregate purchase price of US$217,250,000. Each share of Class B Capital Stock is convertible into 100 shares of Common Stock and the purchase price per share of Common Stock under the Issuer Stock Purchase Agreement, on an as-converted basis, is US$5.50.
As discussed in Item 3, Smart Hydrogen has also agreed to purchase 1,825,000 shares of Common Stock from DTE Energy Foundation contemporaneously with the closing of its purchase of Class B Capital Stock from the Issuer and, in the event the purchase from DTE Energy Foundation is not consummated prior to this closing, the Issuer will have the option to sell an additional 18,250 shares of Class B Capital Stock, convertible into 1,825,000 shares of Common Stock, to Smart Hydrogen. Additionally, the Issuer has agreed to sell an additional number of shares of Common Stock to Smart Hydrogen equal to 35% of the total number of shares of Common Stock issued under the Issuer’s equity incentive and employee benefit plans between April 10, 2006 and the closing date, net of any such shares reacquired by the Issuer during that time period. The purchase price for these additional shares of Common Stock and Class B Capital Stock on an as-converted basis will be US$5.50 per share. Following the closing of these transactions, Smart Hydrogen is expected to own approximately 35% of the Issuer’s outstanding Common Stock on an as-converted basis, taking into account the 2,714,700 shares of Common Stock of the Issuer that Smart Hydrogen purchased from GE in December 2005 (as discussed in Item 3). The funds that will be used to purchase shares of Class B Capital Stock and Common Stock from the Issuer will come from Smart Hydrogen’s working capital. In the Issuer Stock Purchase Agreement, the Issuer represented to Smart Hydrogen that, as of April 10, 2006, the Issuer had 86,266,835 issued and outstanding shares of Common Stock.

Page 12


 

These transactions are expected to close in Summer 2006, subject to approval by the Issuer’s shareholders, regulatory approvals, including Hart-Scott-Rodino antitrust clearance and clearance by the Committee on Foreign Investments in the United States, and other customary closing conditions. With respect to the shareholder approval, Smart Hydrogen, DTE Energy Company and DTE Energy Ventures, Inc. have all agreed to vote in favor of the transaction pursuant to the DTE Foundation Voting Agreement and DTE Energy Voting Agreement discussed in Item 3. The Issuer will also be seeking a formal interpretative letter from the staff of NASDAQ confirming that the terms of the Class B Capital Stock relating to appointment of directors complies with applicable NASDAQ rules, and the Issuer Stock Purchase Agreement may be terminated by either party if the Issuer is unable to obtain such a letter. The Issuer Stock Purchase Agreement may also be terminated by either party if the transaction has not been completed by September 30, 2006. The Issuer will also have the right to terminate the Issuer Stock Purchase Agreement if it receives a proposal that its Board of Directors determines to be superior (after taking into account any modifications proposed by Smart Hydrogen to its proposal); provided that the Issuer may not solicit alternative proposals. If the Issuer exercises this termination right, it must pay a termination fee of approximately US$5.4 million and reimburse up to approximately US$2.6 million of Smart Hydrogen’s expenses.
The Class B Capital Stock that is to be sold by the Issuer is a new class of stock that is economically equivalent to, and convertible into, shares of Common Stock. The terms of the Class B Capital Stock will be set forth in a Certificate of Designations filed by the Issuer with the Delaware Secretary of State, the form of which has been agreed to by the Issuer and Smart Hydrogen (the “Certificate of Designations”). Pursuant to the Certificate of Designations, the holders of the Class B Capital Stock initially will be able to appoint up to four of the eleven directors to the Issuer’s Board of Directors, at least two of whom must be independent directors under applicable NASDAQ rules. Under the Certificate of Designations, these directors must be proportionately represented on all committees of the Board of Directors to the extent consistent with applicable law; provided that any committee of five or fewer members need only have one such director as a member. The number of directors that the holders of Class B Capital Stock will be able to appoint in the future will decrease if the percentage of the Issuer’s outstanding Common Stock on an as converted basis decreases; provided that if this percentage decreases below 10%, the director appointment and committee representation rights will terminate. Separately, in the Investor Rights Agreement described below, the holders of the Class B Capital Stock will agree to vote in favor of all director nominees recommended by the Issuer as long as they have director appointment rights.
The Certificate of Designations also requires the Issuer to obtain the approval of the holders of a majority of the outstanding Class B Capital Stock prior to taking any of the following actions as long as such holders continue to own over 20% of the Issuer’s outstanding Common Stock on an as-converted basis:
    changing the number of directors on the Board of Directors;

Page 13


 

    issuing any additional shares of Class B Capital Stock;
 
    acquiring any business or assets if the purchase price exceeds the greater of (i) 30% of total assets of the Issuer on a consolidated basis or (ii) US$105,000,000; or
 
    amending certain provisions of the Issuer’s certification of incorporation or by-laws relating to the rights of the Class B Capital Stock or certain other corporate governance matters, other than in connection with a sale of the Issuer.
The Certificate of Designations also provides that shares of Class B Capital Stock will automatically convert into Common Stock if they are transferred to anyone other than certain affiliates of Smart Hydrogen or if the holder of such shares experiences a change of control.
In connection with the transaction, the parties have also agreed to enter into an Investor Rights Agreement (the “Investor Rights Agreement”) and a Registration Rights Agreement (the “Registration Rights Agreement”) at the closing of the transaction, which establish certain rights and obligations of the Issuer and Smart Hydrogen relating to the investment. Under the Investor Rights Agreement, Smart Hydrogen will agree to the following restrictions on the transfer of shares of stock of the Issuer:
    For 18 months following the closing, Smart Hydrogen will not transfer any equity securities of the Issuer to any person;
 
    For 2 years following the closing, Smart Hydrogen will not privately sell any equity securities of the Issuer to any person who is or will become a 5% stockholder;
 
    For 2 years following the closing, Smart Hydrogen will not privately sell any equity securities of the Issuer to any person without providing the Issuer with a right of first offer; and
 
    For 5 years following the closing, Smart Hydrogen will not privately sell any equity securities of the Issuer to a competitor of the Issuer.
Notwithstanding the foregoing, the Issuer will permit Smart Hydrogen, at any time, to transfer its shares to certain affiliates of Smart Hydrogen or to transfer its shares pursuant to any tender offer, exchange offer, merger, business combination, restructuring, or acquisition of the Issuer that is recommended by the Issuer’s Board of Directors.
Additionally, Smart Hydrogen will agree that neither it nor any of its affiliates will take certain actions for a period of 5 years following the closing, including, among others:
    acquiring any additional securities of the Issuer (other than pursuant to the preemptive or top up rights described below);
 
    acting to propose, or solicit any person with respect to, any merger, business combination, tender or exchange offer, restructuring, recapitalization, liquidation, or similar transaction involving the Issuer or to seek to control, change or influence the

Page 14


 

      Issuer’s management, Board of Directors or policies, except through the exercise of the rights granted in connection with the transaction;
 
    engaging in a proxy solicitation; and
 
    submitting a director nominee (other than pursuant to their director appointment rights) or a stockholder proposal to the Issuer for consideration by its stockholders.
Notwithstanding the foregoing, the Issuer will permit the holders of Class B Capital Stock to participate as a bidder in any process initiated by the Issuer to sell the Issuer and, if the Issuer receives an unsolicited acquisition proposal, to submit an acquisition proposal prior to the Issuer’s acceptance of the unsolicited acquisition proposal.
The Investor Rights Agreement will also require the Issuer, for two years following the closing, to obtain the approval of the holders of a majority of the outstanding Class B Capital Stock prior to redeeming or repurchasing stock (subject to carveouts related to repurchases under equity incentive plans and from Smart Hydrogen under the Issuer’s right of first offer) or paying any dividends.
In the Investor Rights Agreement, the Issuer will agree to provide the holders of Class B Capital Stock with preemptive rights to enable them to participate in future issuances of securities by the Issuer in order to maintain their percentage ownership of the Issuer’s total outstanding common stock on an as-converted basis. These preemptive rights are subject to carveouts for issuances under equity incentive or employee benefit plans, issuances in acquisitions by the Issuer, issuances to strategic partners of up to 10% in the aggregate of the Issuer’s outstanding common stock as of the closing date, issuances to financial institutions or lessors in lending or leasing transactions, private offerings of up to US$7.5 million, and public offerings. However, in the event of issuances of securities in an acquisition by the Issuer or under an equity incentive or employee benefit plan, the holders of Class B Capital Stock will have top up rights enabling them to purchase additional securities in order to maintain their percentage ownership of the Issuer’s total outstanding Common Stock on an as-converted basis. Pursuant to this top up right:
    if the Issuer issues more than US$7.5 million of securities in an acquisition by the Issuer, then the holders of Class B Capital Stock will have the right to purchase additional securities from the Issuer to maintain their percentage ownership;
 
    if the Issuer issues less than US$7.5 million of securities in an acquisition by the Issuer, then the Issuer will have the option of either offering additional securities to the holders of Class B Capital Stock or permitting them to purchase additional securities in the public market to maintain their percentage ownership; and
 
    if the Issuer, in the aggregate, issues shares of common stock under an equity incentive or employee benefit plan during any year, then, at the beginning of the following year, the Issuer will permit the holders of Class B Capital Stock to purchase additional securities in the public market to maintain their percentage ownership.

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These holders may exercise these preemptive and top up rights notwithstanding the general restriction on acquisition of additional securities of the Issuer described above. These preemptive and top up rights generally continue as long as the holders of Class B Capital Stock own at least 10% of the outstanding Common Stock on an as-converted basis.
Under the Investor Rights Agreement, the Issuer will also provide the holders of the Class B Capital Stock with co-sale rights to participate on a pro rata basis in any sale by the Issuer of common stock for cash in a private placement of more than 20% of the Issuer’s then outstanding common stock, after giving effect to such transaction, to a single purchaser. These co-sale rights generally continue as long as the holders of Class B Capital Stock own at least 10% of the outstanding common stock of the Issuer on an as-converted basis.
Certain affiliates of Smart Hydrogen will, and any person to whom shares of Class B Capital Stock are transferred in the future (without the prior conversion of such shares into common stock) will be required to, agree to be bound by the terms of the Investor Rights Agreement.
Under the Registration Rights Agreement, the Issuer will agree to register the shares of Common Stock issuable upon exercise of the Class B Capital Stock on a resale registration statement within 18 months after the closing of the investment. The Issuer will also agree to prepare a prospectus or, if the Issuer is not Form S-3 eligible, file a registration statement for an underwritten public offering upon the demand of the holders of the shares of Common Stock issuable upon exercise of the Class B Capital Stock; provided that the Issuer is only required to accommodate up to five requests (and pay expenses for three requests). The Issuer will also grant the holders unlimited piggy-back registration rights with respect to underwritten offerings being registered by the Issuer. The registration rights will be transferable to a person acquiring 25% or more of the shares initially issued. The registration rights are to be subject to blackout and market standstill provisions enabling the Issuer to suspend sales pursuant to the registration rights for up to, but not more than, 180 days in any 12-month period.
In connection with the transaction, the Issuer has stated that it has amended its by-laws effective upon and subject to the closing of the transaction. The amendments are technical amendments to reflect the rights to be granted to the holders of the Class B Capital Stock and constitute the addition of language to Article I, Section 3(c); Article II, Section 2; Article II, Section 14; and Article VI, Section 8(a) of the by-laws indicating that the provisions of such sections are “subject to the rights, if any, of the holders of any series of preferred stock.”
The transactions contemplated by the Issuer Stock Purchase Agreement are sometimes referred to herein collectively as the “Issuer Transaction.”
The foregoing summary is qualified in its entirety by reference to the copies of the Issuer Stock Purchase Agreement, form of Certificate of Designations, form of Investor Rights Agreement, form of Registration Rights Agreement, and Amended and Restated By-Laws of the Issuer, which are attached hereto as Exhibit G and incorporated by reference herein.
No Other Plans or Proposals
Except as set forth above, none of the persons listed in Item 2 has any present plans or proposals that relate to or would result in the occurrence of any of the events specified in clauses (a)

Page 16


 

through (j) of the instructions to Item 4 of Schedule 13D. The Reporting Persons reserve the right to formulate plans or make proposals, and take such actions with respect to their investment in the Issuer, including any action that relates to or would result in the occurrence of any or all of the events specified in clauses (a) through (j) of the instructions to Item 4 of Schedule 13D, and any other actions, as they may determine. The Reporting Persons intend to review continually their investment in the Issuer, depending upon future evaluations of the business prospects of the Issuer and upon other developments, including but not limited to, general economic and business conditions and stock market conditions. The Reporting Persons may determine to increase or decrease their equity position in the Issuer by acquiring additional shares of disposing of some of the shares they may hold, in each case in accordance with the terms and conditions contained in the Certificate of Designations and the agreements executed at the closing of the Issuer Transaction.
Item 5. Interest in Securities of the Issuer
The information included in Items 2, 3, 4, and 6 of this Statement is hereby incorporated by reference into this Item 5.
     
(a) — (b)
  As of the date hereof, Smart Hydrogen is the beneficial owner of 13,732,927 shares of Common Stock, or 15.8% of the Issuer’s outstanding Common Stock. This amount includes (i) 2,714,700 shares of Common Stock purchased by Smart Hydrogen pursuant to the GE Purchase Agreement, over which Smart Hydrogen has the power to direct the vote and the power to dispose or direct the disposition thereof; (ii) 1,825,000 shares of Common Stock beneficially owned by DTE Foundation, over which Smart Hydrogen shares voting power pursuant to the DTE Foundation Voting Agreement; and (iii) 9,193,227 shares of Common Stock beneficially owned by DTE Energy Company, over which Smart Hydrogen shares voting control pursuant to the DTE Energy Voting Agreement. By virtue of their stock ownership and voting control, as described in Item 2, Clayburn, Branton, Norilsk Nickel, Mr. Potanin, and Mr. Prokhorov, may be deemed to be the beneficial owners of 13,732,927 shares of Common Stock, or 15.8% of the outstanding shares of Common Stock.
 
   
(c)
  No transactions in the Common Stock were effected in the past 60 days, by the persons named in response to Item 5(a), except for the DTE Foundation Purchase Agreement, DTE Foundation Voting Agreement, and DTE Energy Voting Agreement, described in Item 3 and hereby incorporated in this Item 5(c). Smart Hydrogen has not previously filed a Schedule 13D.
 
   
(d)
  All persons known to have the right to receive or the power to direct the dividends from, or the proceeds from the sale of, the securities described in this Item 5 are described in this Statement.
 
   
(e)
  Not applicable.

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Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
The information set forth, or incorporated by reference, in Items 2 through 5 of this Statement is hereby incorporated by reference herein.
  1.   Shareholders Agreement by and among Smart Hydrogen Inc., Clayburn Development Inc., Branton Limited, and Sorinvest Société a Responsibilité Limitée, dated as of February 15, 2006: This agreement sets forth the agreement of the parties thereto regarding the management, operation, and ownership of Smart Hydrogen. Pursuant to such agreement, Clayburn and Branton must approve of any transaction involving material assets of Smart Hydrogen.
 
  2.   Lock-Up Letter Agreement by and among Plug Power Inc., DTE Energy Company, and DTE Energy Ventures, Inc., dated as of April 10, 2006: This letter agreement was executed in connection with the DTE Transaction. The parties thereto agreed, subject to certain exceptions, that DTE Energy Company and DTE Energy Ventures, Inc. will not, directly or indirectly, offer for sale, sell, pledge, transfer, or otherwise dispose of any shares of the Issuer’s Common Stock during the 12-month period following April 10, 2006. Smart Hydrogen Inc. may terminate its Stock Purchase Agreement with DTE Foundation if DTE Energy Company or DTE Energy Ventures, Inc. breaches its obligations under this letter agreement.
 
  3.   Disclosure Letter dated April 10, 2006 delivered by Smart Hydrogen Inc. to Plug Power Inc.: In connection with the Issuer Stock Purchase Agreement, Smart Hydrogen delivered this letter disclosing certain relationships among the persons named in Item 2. Information contained in this disclosure letter, attached to this Schedule as Exhibit I, is hereby incorporated by reference into this Item 6.
Except as described in this Statement, none of the Reporting Persons, nor to the knowledge of the Reporting Persons, any of the persons listed in Exhibit A, has any contract, arrangement, understanding, or relationship (legal or otherwise with any person with respect to any securities of the Issuer, including but not limited to transfer or voting of such securities, finder’s fees, joint ventures, loan or option arrangements, puts or calls, guarantees of profits, division of profits or loss, or the giving or withholding or proxies
Item 7. Materials to be Filed as Exhibits
      The following documents are filed as exhibits to this Statement:
     
Exhibit A
  Officers and Directors Named In Item 2.*
 
   
Exhibit B
  Stock Purchase Agreement by and between GE Power Systems Equities, Inc. and Smart Hydrogen Inc., dated as of December 30, 2005.*
 
   
Exhibit C
  Shareholders Agreement by and among Smart Hydrogen Inc., Clayburn Development Inc., Branton Limited, and Sorinvest Société a Responsibilité Limitée, dated as of February 15, 2006.*
 
   
Exhibit D
  Stock Purchase Agreement by and between DTE Energy Foundation and
Smart Hydrogen Inc., dated as of April 10, 2006.*
     
Exhibit E
  Voting Agreement and Irrevocable Proxy by and between DTE Energy Foundation and Smart Hydrogen Inc., dated as of April 10, 2006.*
 
   
Exhibit F
  Voting Agreement and Irrevocable Proxy by and among DTE Energy Company, DTE Energy Ventures, Inc., and Smart Hydrogen Inc., dated as of April 10, 2006.*
 
   
Exhibit G
  Stock Purchase Agreement by and between Smart Hydrogen Inc. and Plug Power Inc., dated as of April 10, 2006.*
 
   
Exhibit H
  Lock-Up Letter Agreement by and among Plug Power Inc., DTE Energy Company, and DTE Energy Ventures, Inc. dated as of April 10, 2006.*
 
   
Exhibit I
  Disclosure Letter dated April 10, 2006 delivered by Smart Hydrogen Inc. to Plug Power Inc. in connection with the Stock Purchase Agreement attached hereto as Exhibit G.*
 
   
Exhibit J
  Loan Agreement by and between Smart Hydrogen Inc. and Branton Limited, dated as of December 28, 2006.*
 
   
Exhibit K
  Agreement Relating to Joint Filing of Schedule 13D.*
 
   
Exhibit L
  Power of Attorney, dated February 16, 2006, by Clayburn Development Inc. appointing Sergey Gorskiy as Attorney-in-Fact.*
*Filed herewith.

Page 18


 

SIGNATURE
     After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct.
Dated: April 20, 2006
             
    SMART HYDROGEN INC.    
 
           
 
  By:   /s/ Sergey Polikarpov    
 
           
 
           
 
  Name:   Sergey Polikarpov    
 
           
 
           
 
  Title:   Director    
 
           
 
           
    MMC NORILSK NICKEL    
 
           
 
  By:   /s/ Mikhail D. Prokhorov    
 
           
 
           
 
  Name:   Mikhail D. Prokhorov    
 
           
 
           
 
  Title:   CEO and Chairman of
The Management Board
   
 
           
 
           
 
           
    CLAYBURN DEVELOPMENT INC.    
 
           
 
           
 
  By:   /s/ Sergey Gorskiy    
 
           
 
           
 
  Name:   Sergey Gorskiy    
 
           
 
           
 
  Title:   Attorney-in-Fact    
 
           
 
           
 
           
    BRANTON LIMITED    
 
           
 
  By:   /s/ Maria Lambrianidou    
 
           
 
           
 
  Name:   Maria Lambrianidou    
 
           
 
           
 
  Title:   Director    
 
           

Page 19


 

             
    MIKHAIL D. PROKHOROV    
 
           
 
  By:   /s/ Mikhail D. Prokhorov    
 
           
 
           
 
  Name:   Mikhail D. Prokhorov    
 
           
 
           
 
           
    VLADIMIR O. POTANIN    
 
           
 
  By:   /s/ Vladimir O. Potanin    
 
           
 
           
 
  Name:   Vladimir O. Potanin    
 
           

Page 20

EX-99.A 2 h35166exv99wa.htm OFFICERS AND DIRECTORS NAMED IN ITEM 2 exv99wa
 

EXHIBIT A
OFFICERS AND DIRECTORS OF PERSONS NAMED IN ITEM 2
Executive Officer (Director) of Smart Hydrogen Inc.
         
Name   Present Principal Occupation   Citizenship
 
       
Sergey Polikarpov
  Student, Harvard Business School; Director of Smart Hydrogen Inc.   Russian Federation

Page 1


 

Executive Officers of MMC Norilsk Nickel
         
Name   Present Principal Occupation   Citizenship
 
       
Mikhail D. Prokhorov
  Chief Executive Officer (General Director) and Chairman of the Management Board of Norilsk Nickel   Russian Federation
Yuri A. Kotlyar
  General Director of “RAO Norilsk Nickel” and Member of the Management Board of Norilsk Nickel   Russian Federation
Jokves I. Rozenberg
  Deputy General Director and Member of the Management Board of Norilsk Nickel   Russian Federation
Denis S. Morozov
  Deputy General Director on Corporate and Legal Issues and Member of the Management Board of Norilsk Nickel   Russian Federation
Dmitry S. Cheskis
  Deputy General Director and Member of the Management Board of Norilsk Nickel   Russian Federation
Igor A. Komarov
  Deputy General Director and Member of the Management Board of Norilsk Nickel   Russian Federation
Ralph T. Morgan
  Deputy General Director and Member of the Management Board of Norilsk Nickel   United States of America
Maksim V. Finsky
  Deputy General Director and Member of the Management Board of Norilsk Nickel   Russian Federation
Victor E. Sprogis
  Deputy General Director, Head of Marketing and Sales, and Member of the Management Board of Norilsk Nickel   Russian Federation

Page 2


 

Board of Directors of MMC Norilsk Nickel
         
Name   Present Principal Occupation   Citizenship
 
       
Andrey A. Klishas
  Chairman of the Board of Directors of Norilsk Nickel; Chief Executive Officer (General Director) and Chairman of the Management Board Interros   Russian Federation
Mikhail D. Prokhorov
  Chief Executive Officer (General Director) and Chairman of the Management Board of Norilsk Nickel   Russian Federation
Andrey E. Bugrov
  Managing Director of Interros   Russian Federation
Vladimir I. Dolgikh
  President of the Management Board of the Krasnoyarsk Fellow-countrymen association   Russian Federation
Ekaterina M. Salnikova
  Deputy Financial Director on a Corporate Issues of Interros   Russian Federation
Kirill L. Ugolnikov
  Director of tax department of JSC “Vneshjurkollegia”   Russian Federation
Morgan Ralph Tavakolian
  Deputy General Director and Member of the Management Board of Norilsk Nickel   United States of America
Heinz S. Schimmelbusch
  Managing Director of Safeguard International Fund   Austria
Guy de Selliers
  Member of the Board of Directors of Wimm Bill Dann and of Solvay S.A.   Belgium

Page 3


 

Executive Officer (Director) of Clayburn Development Inc.
         
Name   Present Principal Occupation   Citizenship
Pasqual Siegfried
  Managing Director of Norilsk Holding S.A.   Switzerland
Executive Officer (Director) of Branton Limited
         
Name   Present Principal Occupation   Citizenship
Maria Lambrianidou
  Director of Branton   Republic of Cyprus

Page 4

EX-99.B 3 h35166exv99wb.htm STOCK PURCHASE AGREEMENT exv99wb
 

EXHIBIT B
STOCK PURCHASE AGREEMENT
     THIS STOCK PURCHASE AGREEMENT (this “Agreement”) is entered into this 30th day of December, 2005, by and between GE POWER SYSTEMS EQUITIES, INC., a Delaware corporation (“Seller”), and SMART HYDROGEN INC., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Purchaser”).
W I T N E S S E T H:
     WHEREAS, Seller owns 2,714,700 shares (the “Shares”) of the Common Stock, par value $0.01 per share, of PLUG POWER INC., a Delaware corporation (the “Company”); and
     WHEREAS, Purchaser desires to purchase the Shares from Seller, and Seller desires to sell the Shares to Purchaser, subject to the terms and conditions set forth herein;
     NOW, THEREFORE, in consideration of the premises and of other valuable consideration set forth herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
     1. Sale of the Shares. Seller hereby sells, assigns, transfers, and conveys to Purchaser all right, title, and interest in and to (i) the Shares free and clear of any and all Liens and (ii) subject to any and all necessary approvals and consents of the Company and any third parties, all registration and similar rights held by the Seller with respect to the Shares. Simultaneously with payment by Purchaser of the Purchase Price (as defined in Section 2), Seller shall execute and deliver to Purchaser a stock transfer power in the form of Exhibit A attached hereto.
     2. Purchase Price. As consideration for, and simultaneously with, Seller’s delivery of the Shares to Purchaser hereby, Purchaser hereby pays to Seller cash in the amount of U.S. $14,116,440.00 (the “Purchase Price”) by wire transfer of immediately available funds to the following bank account:
     
Bank Name:
  Deutsche Bank Trust Company Americas
 
  PO Box 318, Church Street Station
 
  New York, NY 10008-0318
SWIFT:
  BKTRUS33
ABA No.:
  021001033
Beneficiary Name:
  GE Packaged Power, Inc.
Account No.:
  00-388-615
Contact Name:
  Brian Barlund
The parties hereto acknowledge and agree that the Purchase Price may be paid on Purchaser’s behalf by Branton Limited, a company organized under the laws of the Commonwealth of the Bahamas.

 


 

     3. Representations and Warranties of Seller. Seller hereby represents and warrants to Purchaser as follows:
     a. Seller is the beneficial and record owner of the Shares, free and clear of all Liens, and has the full power and legal right to sell, assign, transfer, and convey the same. The Shares represent all of the equity interests in the Company owned by Seller or, to Seller’s knowledge, Richard R. Stewart, or to which or in which Seller or, to Seller’s knowledge, Richard R. Stewart, has any right or interest.
     b. Seller has the requisite corporate power and authority to execute, deliver and perform this Agreement and each of the ancillary agreements to be executed in connection herewith to which Seller is a party.
     c. The execution, delivery and performance by Seller of this Agreement and such ancillary agreements has been duly and validly authorized and approved by all necessary corporate action on the part of Seller.
     d. Neither the execution and delivery by Seller of this Agreement nor the consummation of the transactions contemplated hereby, will (i) conflict with or result in any violation or breach of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, suspension, modification, or acceleration of any obligation under, any Contract to which Seller (or any Affiliate thereof), on the one hand, and the Company (or any Affiliate thereof), on the other hand, are parties; or (ii) to the Seller’s knowledge, give any Person the right to require any Company security to be repurchased by the Company.
     Except as contained in this Agreement, Seller makes no representation or warranty, express or implied, regarding the Shares, the Company or any other matter.
     4. Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller as follows:
     a. Purchaser has the requisite corporate power and authority to execute, deliver and perform this Agreement and each of the ancillary agreements to be executed in connection herewith to which Purchaser is a party.
     b. The execution, delivery and performance by Purchaser of this Agreement and such ancillary agreements has been duly and validly authorized and approved by all necessary corporate action on the part of Purchaser.
     c. Purchaser understands that the Shares were issued to Seller and are being sold to Purchaser without registration under the Securities Act of 1933, as amended (the “Securities Act”), or under the securities laws of any state (the “State Acts”), in reliance upon exemptions provided by the Securities Act and the State Acts and the regulations promulgated thereunder.

-2-


 

Purchaser further understands that such reliance is based in part upon its representations set forth in this Agreement.
     d. Purchaser is an “Accredited Investor” as defined in Rule 501(a) under the Securities Act. Purchaser understands that the Shares have not been registered under the Securities Act or the State Acts, and agrees that it may not resell, pledge, transfer, convey or otherwise dispose of any Shares unless such Shares are registered thereunder or unless an exemption from registration is available.
     e. Seller is under no obligation to cause registration of the Shares or to assist Purchaser in complying with any exemption from registration.
     f. Purchaser is the sole party in interest as to the Shares acquired by it hereunder and is acquiring such Shares for investment, for its own account, and not with a view toward the resale or distribution thereof. Purchaser has not offered or sold any of the Shares within the meaning of the Securities Act or any state securities law. Purchaser has no present nor contemplated agreement, undertaking, arrangement, obligation, indebtedness or commitment providing for or that is likely to compel a disposition of any of the Shares.
     g. Purchaser is able to fend for itself in the acquisition of the Shares acquired by it hereunder and has such knowledge and experience in financial and business matters that it is capable of evaluating the merits and risks of acquiring the Shares and to make an informed decision with respect thereto. Purchaser understands that it may be required to continue to bear the economic risk associated with the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act, the State Acts or any other state or comparable securities laws.
     h. Purchaser acknowledges that neither Seller nor the Company has prepared, and that it has not requested the preparation of, a written prospectus or disclosure statement in connection with the sale of the Shares.
     i. The offer to sell or the solicitation of the offer to buy the Shares was directly communicated to Purchaser, and at no time did Purchaser or the Seller or the Company, or any person acting on behalf of such parties, offer to sell or solicit the offer to buy the Shares by any form of general solicitation or general advertising.
     Except as contained in this Agreement, Purchaser makes no representation or warranty, express or implied, regarding itself, the transactions contemplated hereby, the Shares, the Company, or any other matter.
     5. Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
     “Affiliate” shall mean, with respect to a Person, any other Person that directly, or through one or more intermediaries, controls or is controlled by, or is under common control with such

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Person, with “control” for such purpose meaning the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or voting interests, by contract, or otherwise.
     “Contract” shall mean any note, bond, indenture, mortgage, deed of trust, lease, franchise, contract, instrument, or other agreement, obligation, or commitment of any nature, written or oral.
     “Lien” shall mean any lien, pledge, charge, claim, security interest, purchase agreement, option, restriction on transfer (other than restrictions upon transfer under the Securities Act, the State Acts, or foreign securities laws), or other encumbrance of any nature whatsoever, whether consensual, statutory, or otherwise.
     “Person” shall mean a person, corporation, partnership, limited liability company, joint venture, trust, or other entity or organization.
     6. Miscellaneous. This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument. The provisions of this Agreement (i) shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of law principles, (ii) shall not be modified, amended or supplemented, and waivers or consents to or departures from the provisions hereof may not be given, without the prior written consent of all of the parties hereto, and (iii) constitute the entire agreement between Seller and Purchaser relative to the subject matter hereof and supersede any previous agreement between Seller and Purchaser relative to the subject matter hereof.
[Signature Page to Follow]

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     IN WITNESS WHEREOF, each of the parties hereto has executed this Agreement as of the date first above written.
         
  Seller:

GE POWER SYSTEMS EQUITIES, INC.
 
 
  By:   /s/ Thomas P. Saddlemire    
    Name:   Thomas P. Saddlemire    
    Title:   Authorized Person   
 
  Purchaser:


SMART HYDROGEN INC.
 
 
  By:   /s/ Sergey Polikarpov    
    Name:   Sergey Polikarpov   
    Title:   Director   
 

[SIGNATURE PAGE TO STOCK AGREEMENT]


 

Exhibit A
Stock Transfer Power

 


 

STOCK TRANSFER POWER
     FOR VALUE RECEIVED, as of the date set forth below, the undersigned hereby sells, assigns, transfers, and conveys unto Smart Hydrogen Inc., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Smart Hydrogen”) Two Million Seven Hundred Fourteen Thousand Seven Hundred (2,714,700) shares of the common stock, $0.01 par value per share, of Plug Power Inc. (the “Corporation”), represented in the aggregate by Certificate Numbers PLG 4816, PLG 3925, PLG 3033, PLG 4335 and PLG 4665, and hereby irrevocably constitutes and appoints _____________________as attorney to transfer the said shares on the books of the Corporation with full power of substitution in the premises.
         
  GE Power Systems Equities, Inc.
 
 
  By:      
    Name:   Thomas P. Saddlemire   
    Title:   Authorized Person   
    Date:   December 30, 2005  
 

 

EX-99.C 4 h35166exv99wc.htm SHAREHOLDERS AGREEMENT exv99wc
 

EXHIBIT C
SHAREHOLDERS AGREEMENT
     This SHAREHOLDERS AGREEMENT (this “Agreement”), dated as of February 15, 2006, is entered into by and among SMART HYDROGEN INC., a BVI Business Company incorporated under the laws of the British Virgin Islands (the “Company”), CLAYBURN DEVELOPMENT INC., a company organized under the laws of the British Virgin Islands (“Clayburn”), BRANTON LIMITED, a company incorporated under the laws of the Commonwealth of the Bahamas (“Branton”), and SORINVEST SOCIÉTÉ A RESPONSIBILITÉ LIMITÉE, a company organized under the laws of Tunisian Republic (“Management Company”).
RECITALS
     WHEREAS, Clayburn and Branton have formed the Company for the purpose of making investments in one or more companies in the hydrogen fuel cell industry (the “Portfolio Companies”); and
     WHEREAS, the Company, Clayburn, Branton, and Management Company each desire to enter into this Agreement to provide for, among other things, the management, operation, and ownership of the Company, upon the terms and conditions set forth in this Agreement;
AGREEMENT
     NOW, THEREFORE, in consideration of the mutual agreements, representations and warranties set forth herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged the Parties hereto, intending to be legally bound, hereby agree as follows:
  1.   DEFINITIONS AND INTERPRETATION
  1.1.   Definitions. Capitalized terms used in this Agreement shall have the meanings set forth below:
     “Act” shall mean the BVI Business Companies Act (No. 16 of 2004) of the British Virgin Islands and the regulations made under the Act.
     “Additional Capital Call” shall have the meaning assigned to such term in Section 4.4.
     “Additional Capital Contribution” shall have the meaning assigned to such term in Section 4.4.
     “Administrative Expenses” shall mean all overhead, costs, and expenses of the Company relating to the Business or affairs of the Company including, but not limited to: (i) any fees or expenses paid to Management Company or other Persons; (ii) travel and business expenses; (iii) administrative and office expenses; and (iv) other costs and expenses incurred by the Company in connection with the Business

 


 

and/or the evaluation, negotiation, execution, and management of the Company’s investments in Portfolio Companies; provided, however, that the term Administrative Expenses shall not include any fees and expenses of any professional advisor to the Company (including legal, investment banking, accounting, and consulting fees).
     “Affiliate” shall mean, with respect to any Person, any other Person that controls, or is controlled by, or is under common control with, such Party. For the purpose of this definition, the term “control” (and its use in the terms “controlling,” controlled by,” and “under common control with”), as used with respect to any Person, shall mean the ownership of more than fifty percent of the voting interest of such Person. The term Affiliate shall also include, with respect to any Person, any of the mangers, directors, officers, employees, affiliates, contractors, sub-contractors, grantees, sub-grantees, representatives, and agents of such Person.
     “Agreement” shall have the meaning assigned to such term in the first paragraph hereof.
     “Applicable Law” shall mean, with respect to any Person, any statute, law, regulation, ordinance, rule, judgment, rule of common law, order, decree, award, governmental approval, concession, grant, franchise, license, agreement, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any governmental authority, whether in effect as of the date hereof or thereafter, and in each case as amended, applicable to such Person or its subsidiaries or their respective assets. Without limiting the generality of the foregoing, with respect the Company, the term Applicable Law shall include the Act.
     “Articles” shall mean the Articles of Association of the Company, as may be amended from time to time.
     “Branton” shall have the meaning assigned to such term in the first paragraph hereof.
     “Business” shall mean the Company’s business of acquiring, holding, and selling investments in Portfolio Companies, and all activities incidental thereto.
     “Business Day” shall mean any day other than Saturday, Sunday, or a day on which the banks are authorized or required to remain closed in New York.
     “Capital Account” shall have the meaning assigned to such term in Section 10.1.
     “Clayburn” shall have the meaning assigned to such term in the first paragraph hereof.

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     “Communications” shall have the meaning assigned to such term in Section 16.10.
     “Company” shall have the meaning assigned to such term in the first paragraph of this Agreement.
     “Company Securities” shall mean Shares and debt obligations of every kind of the Company, including without limitation options, warrants, and rights to acquire Shares or debt obligations.
     “Director” shall mean a director of the Company appointed in accordance with this Agreement, the Memorandum, and the Articles.
     “Defaulting Shareholder” shall have the meaning assigned to such term in Section 4.2.
     “Dispute” shall have the meaning assigned to such term in Section 15.2.
     “Equity Option” shall have the meaning assigned to such term in Section 11.1.
     “Equity Option Exercise Notice” shall have the meaning assigned to such term in Section 11.1.
     “Equity Option Payment” shall have the meaning assigned to such term in Section 11.2.
     “Equity Option Date” shall mean the date that the Company receives the Equity Option Exercise Notice.
     “Exercise Notice” shall have the meaning assigned to such term in Section 7.4(b).
     “Fair Market Value” shall mean, in respect of any Share as of any date specified, the price at which a willing seller would sell and a willing buyer would buy such Share having full knowledge of the facts in an arm’s-length transaction without being under any compulsion to buy or sell.
     “Fiscal Year” means the period beginning on January 1 and ending on December 31 of each year.
     “Founding Shareholder” shall mean Branton and Clayburn, either individually or collectively, as the case may be.
     “Founding Shareholder Approval” shall mean written consent of all of the Founding Shareholders.

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     “ICC Rules” means the Rules of Arbitration of the International Chamber of Commerce, as amended from time to time.
     “Information” shall have the meaning assigned to such term in Section 13.1.
     “Initial Capital Contributions” shall mean, with respect to each of the Shareholders, the amounts listed next to such Shareholder’s name in Exhibit A to this Agreement in the column labeled “Initial Capital Contributions.”
     “Initial Capital Contribution Deadlines” shall mean the dates by which each of Branton and Clayburn shall make their respective Initial Capital Contributions, as set forth on Exhibit A to this Agreement in the column labeled “Initial Capital Contributions.”
     “Loss” shall have the meaning assigned to such term in Section 10.1.
     “Management Agreement” shall mean that certain Management Agreement by and between the Company and Management Company, as such agreement may be amended from time to time in accordance with the terms thereof.
     “Management Company” shall have the meaning assigned to such term in the first paragraph of this Agreement.
     “Margin Debt” shall mean indebtedness incurred by the Company for the purpose of buying, carrying, or trading in securities of the Portfolio Companies.
     “Memorandum” shall mean the Memorandum of Association of the Company, as may be amended from time to time.
     “Non-Defaulting Shareholder” shall have the meaning assigned to such term in Section 4.2.
     “Offer” shall have the meaning assigned to such term in Section 7.4(a).
     “Organizational Expenses” shall mean all reasonable third-party expenses attributable to the Parties’ organization and the Company, but shall not include costs and expenses incurred by a Party’s own employees and those agents who are working exclusively for such Party.
     “Other Shareholders” shall have the meaning assigned to such term in Section 7.4(a).
     “Ownership Percentage” shall mean, with respect to each Shareholder, the amount listed next to such Shareholder’s name in Exhibit A to this Agreement in the column labeled “Ownership Percentage.”
     “Party” and “Parties” shall mean Clayburn, Branton, Management Company, and the Company, and any other Person that becomes a party to this

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Agreement in accordance with the terms hereof, either individually or collectively, as applicable, including their successors and permitted assigns.
     “Permitted Transferee” shall have the meaning assigned to such term in Section 7.3.
     “Person” shall mean any natural person, company, corporation, association, partnership, organization, business, firm, joint venture, trust, unincorporated organization or any other entity or organization, including a government, or any political subdivision, department or agency of any government.
     “Portfolio Companies” shall have the meaning assigned to such term in the Recitals.
     “Profit” shall have the meaning assigned to such term in Section 10.1.
     “Proposed Transferee” shall have the meaning assigned to such term in Section 7.4(a).
     “ROFR Notice” shall have the meaning assigned to such term in Section 7.4(a).
     “ROFR Percentage” means, in respect of any Other Shareholder, a fraction, the numerator of which is the Ownership Percentage of such Other Shareholder, and the denominator of which is the aggregate sum of the Ownership Percentages of all Other Shareholders.
     “ROFR Shareholders” shall have the meaning assigned to such term in Section 7.4(b).
     “Selling Shareholder” shall have the meaning assigned to such term in Section 7.4(a).
     “Shares” shall mean a share issued or to be issued by the Company.
     “Shareholder” and “Shareholders” shall mean Clayburn, Branton, and Management Company individually or collectively, as appropriate, so long as they may own any Shares, and shall also include any Person who hereafter acquires Shares pursuant to and as permitted by this Agreement, the Articles, and the Memorandum.
     “Term Sheet” shall mean that certain Preliminary Term Sheet for Smart Hydrogen Inc dated October 10, 2005.
     “Warranties” shall have the meaning assigned to such term in Section 3.
     “Transfer” shall have the meaning assigned to such term in Section 7.1.

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     “Unreturned Capital” shall have the meaning assigned to such term in Section 10.1.
     “United States Dollars” or “$” means the lawful currency of the United States of America.
  1.2.   Interpretation. Whenever appropriate within the context of this Agreement, the various provisions hereof shall be interpreted as follows: (i) use of the singular form of any word includes the plural and conversely; (ii) reference to a gender includes all genders; (iii) if a word or phrase is defined, its other grammatical forms shall have corresponding meanings; (iv) all references to the term “including” shall be deemed to mean “including, without limitation”; (v) references to Sections and Recitals are to the sections and recitals of this Agreement, and (vi) unless otherwise stated, any reference to “days” shall mean calendar days unless “Business Days” are expressly specified. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.
  2.   FORMATION
  2.1.   Formation. Pursuant to the Articles and Memorandum filed with the Registrar of Companies of the British Virgin Islands on October 11, 2005, an authorized representative has incorporated the Company pursuant to the provisions of the Act. The rights and liabilities of the Shareholders will be as provided in the Act except as otherwise provided in the Articles, Memorandum, or this Agreement. The Shareholders hereby agree that all actions taken by the authorized representative in connection with the filing of the Memorandum and Articles and the incorporation of the Company, are hereby ratified, adopted, approved, and confirmed.
 
  2.2.   Purpose. The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing. The Company is empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to, or convenient for, the furtherance and accomplishment of the purposes described herein and for the protection and benefit of the Company; provided, however, that the Company shall not conduct any trade or business within the United States.
 
  2.3.   Organizational Expenses. All Organizational Expenses that are incurred by the Company prior to the Initial Capital Contributions shall be paid by the Founding Shareholders pro rata based on each Founding Shareholder’s respective Ownership Percentage as of the date hereof, and the payment of such Organizational Expenses shall not be deemed to be part of or credited toward satisfaction of a Founding Shareholder’s Initial Capital Contribution.

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  2.4.   Relationship to Memorandum and Articles. In the event of any inconsistency between this Agreement and the Memorandum or Articles, the Shareholders will use their rights as Shareholders so as to achieve the position set forth under this Agreement. If it is necessary to include a provision in the Memorandum or Articles to ensure that any provision of this Agreement is effective in accordance with its terms, the Shareholders undertake to procure the necessary amendment to the Articles or Memorandum, as applicable.
  3.   SHAREHOLDER REPRESENTATIONS AND WARRANTIES
     Clayburn, Branton, and Management Company each represents, undertakes, and warrants to the other Parties, severally, that each of the following statements set forth in Sections 3.1 through 3.4 (inclusive) below (the “Warranties”) is true and correct as of the date hereof, and acknowledges that the other Parties have entered into this Agreement in reliance upon the Warranties. Each of the Warranties shall be construed as a separate representation and warranty and (save as expressly provided to the contrary herein) shall not be limited or restricted by reference to, or inference from, the terms of any other Warranty or any other term of this Agreement.
  3.1.   Organization and Good Standing. Such Party is duly organized, validly existing, and in good standing under the laws of its jurisdiction of organization.
 
  3.2.   Power and Authorization. Such Party has the requisite right, power, and authority and full legal and financial capacity to enable it to effectively enter into and perform its obligations under this Agreement. Such Party has taken all necessary corporate action to authorize its entry into and performance of its respective obligations under this Agreement and to carry out the transactions contemplated thereby. Such Party is not engaged in any litigation or proceeding that might have an effect upon its capacity to perform its obligations under this Agreement.
 
  3.3.   Binding Effect. This Agreement constitutes a valid and binding obligation of such Party and is enforceable against it in accordance with its terms, and such Party does not required the consent, approval, or authority of any other Person to enter into or perform its obligations under this Agreement.
 
  3.4.   No Conflict. Neither the execution and delivery of this Agreement by such Party nor the performance by it of its obligations nor the consummation of the transactions contemplated hereby:
  (a)   violates or conflicts with any provision of its organizational documents or any resolution adopted by such Party;
 
  (b)   violates or conflicts with, or constitutes a default under, or results in a breach of, or gives rise to any rights of termination, cancellation or acceleration under, or requires any consent, authorization, or approval under, any term or provision of any material license, loan agreement, promissory note, indenture or other material contract to which it is a party or by which such Party or its assets or properties are bound; or

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  (c)   violates any provision of any statute, rule, or regulation (whether federal, state, local, or foreign), or any judicial, administrative, or arbitration order, award, judgment, writ, injunction, or decree to which it is party or to which its assets or properties are subject.
  4.   CAPITAL CONTRIBUTIONS
  4.1.   Initial Capital Contributions by Founding Shareholders.
  (a)   Each Founding Shareholder shall contribute to the capital of the Company the Initial Capital Contributions applicable to such Founding Shareholder prior to the Initial Capital Contribution Deadline applicable to each such Initial Capital Contribution.
 
  (b)   Each Founding Shareholder acknowledges and is aware that its commitment to provide its Initial Capital Contributions is a material inducement to the other Founding Shareholder to enter into the transactions contemplated by this Agreement, and that any failure to make all of its Initial Capital Contributions as and when and in the manner provided in this Section 4.1 would be a material breach of such Founding Shareholder’s obligations hereunder, entitling the other Founding Shareholder to all rights and remedies provided for in Section 4.2.
  4.2.   Failure to Make an Initial Capital Contribution. In the event that a Founding Shareholder (the “Defaulting Shareholder”) shall fail to contribute the full amount of an Initial Capital Contribution prior to the Initial Capital Contribution Deadline applicable to Initial Capital Contribution in accordance with Section 4.1, in addition to any other remedies afforded at law or in equity to the Company or the other Founding Shareholder (the “Non-Defaulting Shareholder”):
  (a)   The Company may, in its discretion, in accordance with the Act, forfeit the number of Shares held by such Defaulting Shareholder that is equal to the product of (i) the number of Shares listed next to such Founding Shareholder’s name on Exhibit A, multiplied by (ii) a fraction, the numerator of which is the amount of Initial Capital Contributions actually made by such Founding Shareholder, and the denominator of which is the amount of Initial Capital Contributions required to be made by such Founding Shareholder as of such date. In the event the Company forfeits all or a portion of a Defaulting Shareholder’s Shares, the Company shall promptly amend Exhibit A accordingly to reflect such cancellation of Shares and the Defaulting Shareholder shall return to the Company the any certificate(s) representing any portion of the forfeiting Shares.
 
  (b)   The Non-Defaulting Shareholder may, at its discretion, contribute to the capital of the Company all or any portion of the outstanding amount of the Defaulting Shareholder’s Initial Capital Contribution.

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  (c)   Without derogating any of the Non-Defaulting Shareholder’s rights or remedies at law or in equity, and only in addition thereto, the Non-Defaulting Shareholder may, in its discretion, pursue a claim against the Defaulting Shareholder for any costs, expenses, losses, and liabilities incurred or suffered by the Non-Defaulting Shareholder as a result of the Defaulting Shareholder’s failure to contribute the full amount of its Initial Capital Contribution, including any losses or dilution to the Non-Defaulting Shareholder’s equity in the Company that results from the sale of the Shares to an alternate investor.
 
  (d)   If the Non-Defaulting Shareholder contributes to the capital of the Company all or any portion of a Defaulting Shareholder’s Initial Capital Contribution, then the Company shall issue to the Non-Defaulting Shareholder the appropriate number of Shares in exchange therefor, and the Company shall promptly amend Exhibit A to this Agreement accordingly to reflect the actual Initial Capital Contributions made by the Shareholders.
      For purposes of clarity, each Party acknowledges and agrees that Management Company shall have no rights under this Section 4.2.
 
  4.3.   Issuance of Shares to Shareholders. Contemporaneously with the execution of this Agreement, each Shareholder shall execute and deliver to the Company a subscription agreement in a form reasonably acceptable to such Shareholder, and upon the execution and delivery thereof, the Company shall issue to such Shareholder the number of Shares listed next to such Shareholder’s name on Exhibit A in consideration for such Shareholder’s obligations under this Agreement.
 
  4.4.   Additional Capital Contributions. If at any time the Shareholders determine that the Company requires more capital than the sum the Initial Capital Contributions, then the Shareholders may, upon Founding Shareholder Approval, direct the Company to declare a capital call of a specified amount to be made upon the Shareholders (other than Management Company), pro rata based on their respective Ownership Percentages (an “Additional Capital Call”). The Company shall declare an Additional Capital Call by delivering notice thereof to each Shareholder (other than Management Company). Upon receipt of notice of an Additional Capital Call, each Shareholder (other than Management Company) shall have the right, but not the obligation, to fund its pro rata portion thereof (an “Additional Capital Contribution”) in the manner, in such currency, and within the time period specified by the Company in the notice of the Additional Capital Call.
 
  4.5.   Election Not to Make Additional Capital Contribution. In the event that any Shareholder elects not to make its entire share of an Additional Capital Contribution, the other Shareholders (other than Management Company) shall be entitled to make Additional Capital Contributions to make up the shortfall, pro rata based on the ratio that their respective Ownership Percentages shall constitute of the total Ownership Percentage of all Shareholders electing to fund the Additional Capital Call. Upon the payment of an Additional Capital Contribution, the Company shall promptly issue to each Shareholder that made an Additional Capital

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      Contribution that number of additional Shares as shall be determined by dividing the amount of such Shareholder’s Additional Capital Contribution by the Fair Market Value (as determined by the Company, and approved by Founding Shareholder Approval) of each Share prior to the Additional Capital Contribution; provided, however, that any such issuance shall comply with Section 8 of this Agreement.
 
  4.6.   No Further Contributions or Loans. Except as expressly provided herein, the liability of Shareholders to the Company shall be restricted to their respective Initial Capital Contributions, and no other funds, by way of capital contribution, loan, guarantee, or otherwise shall be required of any Shareholder. No interest shall accrue on any capital contribution and no Shareholder shall have the right to withdraw or have repaid to it any capital contribution except as expressly provided in this Agreement.
 
  4.7.   No In-Kind Capital Contributions. Unless otherwise expressly agreed by the Parties in writing, all capital to be contributed to the Company shall be made in cash and in U.S. dollars.
  5.   MANAGEMENT OF THE COMPANY
  5.1.   Conduct of the Business. The Director(s) shall have all the powers necessary for managing, and for directing and supervising, the business and affairs of the Company; provided, however, that the Director(s) shall not have authority, without Founding Shareholder Approval, to take any action that requires the approval of the Founding Shareholders under the Articles, the Memorandum, Applicable Law, the Management Agreement, or this Agreement, (including without limitation, approvals required by Section 5.2).
 
  5.2.   Actions Requiring Founding Shareholder Approval. Notwithstanding anything to the contrary in this Agreement, the Company shall not take any of the following actions without Founding Shareholder Approval, and the Founding Shareholders shall use their respective powers to ensure, so far as they are legally able, that no action or decision relating to any of the following actions is taken without prior Founding Shareholder Approval:
  (i)   sell, issue, redeem, or repurchase any Company Securities;
 
  (ii)   declare any dividend or distribution with respect to the Shares;
 
  (iii)   purchase, lease, exchange, or otherwise acquire any assets (including securities) in a single transaction or a series of related transactions, if such assets constitute (or would constitute) material assets of the Company;
 
  (iv)   sell, lease, exchange, or otherwise dispose of any assets (including securities) in a single transaction or a series of related transactions, if such assets constitute material assets of the Company;
 
  (v)   merge or consolidate with any other business or entity;

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  (vi)   dissolve, liquidate, or wind-up the Company, or convert the Company to a different type of legal entity;
 
  (vii)   file any tax return or other tax filing, notice, application, or other document;
 
  (viii)   change the name of the Company;
 
  (ix)   commence a voluntary liquidation, bankruptcy, or similar proceeding;
 
  (x)   enter into an “interested director transaction” as described in Regulation 13 of the Company’s Articles;
 
  (xi)   enter into a transaction or contractual relationship with a Shareholder or an Affiliate of a Shareholder;
 
  (xii)   settle or compromise legal actions, tax claims, or audit adjustments in amounts in excess of $500,000;
 
  (xiii)   enter into any agreement to register or qualify Company Securities with the United States Securities and Exchange Commission under the Securities Act of 1933 or any U.S. state securities laws;
 
  (xiv)   incur any indebtedness or refinance existing indebtedness in excess of $500,000;
 
  (xv)   incur or refinance any Margin Debt;
 
  (xvi)   make any loan or advance to any Person except (i) in connection with the formation of wholly-owned subsidiaries of the Company, and (ii) reasonable travel or business expenses advanced to the Company’s employees or independent contractors in the ordinary course of business;
 
  (xvii)   enter into or amend any contract or commitment which involves (or may involve) in excess of $250,000 or which is otherwise material to the Company;
 
  (xviii)   save as required by Applicable Law, make any amendment to the terms and conditions of employment (including, without limitation, remuneration, pension entitlements, and other benefits) of any employee, providing or agree to provide any gratuitous payment or benefit to any such Person or any of their dependants, or dismissing any employee or engaging or appointing any additional employee;
 
  (xix)   enter into or amend any contract or commitment with Management Company or any other Person that provides management or administrative services for the Company;

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  (xx)   change the amount of the “Base Management Fee” (as such term is defined in the Management Agreement) to be paid to Management Company under the Management Agreement or the “Expense Maximum” (as such term is defined in the Management Agreement) under the Management Agreement;
 
  (xxi)   determine if a “Bonus Fee” (as such term is defined in the Management Agreement) should be paid to Management Company and, if so, determine the amount of such Bonus Fee and the establish any terms and conditions relating to the payment of any such Bonus Fee;
 
  (xxii)   amend, to any material extent, any of the terms on which goods, facilities, or services are supplied to the Company if such supplies are material to the Company;
 
  (xxiii)   enter into any guarantee, indemnity, or other agreement to secure any obligation of a third party or creating any encumbrance over any of the Company assets or undertaking to do any of the foregoing;
 
  (xxiv)   make a significant change in accounting or tax principles employed by the Company;
 
  (xxv)   remove a Director from office;
 
  (xxvi)   appoint a Person to be a Director on or after the date hereof, either to fill a vacancy or as an addition to existing Director(s);
 
  (xxvii)   change the number of Directors;
 
  (xxviii)   conduct a business other than the Business or cause or permit the Company to enter into contractual obligations outside of the ordinary course of the Company’s Business, or cause the Company to engage in any activity that would constitute the conduct of a trade or business within the United States;
 
  (xxix)   approve the Company’s annual budget;
 
  (xxx)   incur or pay Administrative Expenses in any Fiscal Year in excess of 1% of the Initial Capital Contributions;
 
  (xxxi)   make any capital expenditure or commitment thereof in the aggregate in excess of 10% greater than the amount provided for in the annual budget for such year;
 
  (xxxii)   declare an Additional Capital Call;
 
  (xxxiii)   determine the Fair Market Value of a Share;

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  (xxxiv)   make an amendment or modification to the Articles or Memorandum;
 
  (xxxv)   amend this Agreement; and
 
  (xxxvi)   enter into any binding agreement to do any of the foregoing.
  5.3.   Ratification of Appointment of Initial Director. The Founding Shareholders hereby ratify and confirm the incorporator’s appointment of Sergey Polikarpov as the initial Director of the Company on October 11, 2005. The Parties acknowledge and agree that Mr. Polikarpov shall hold such office until his removal by the Founding Shareholders in accordance with this Agreement or his earlier resignation or death.
  6.   COVENANTS OF THE COMPANY
  6.1.   Access. The Company shall permit appropriate representatives of a Shareholder (including such Shareholder’s outside lawyers and accountants) to review and inspect any of the books and records (including without limitation the items listed in Section 6.5), assets, and properties of the Company and its subsidiaries, if any, at such times and as often as may be reasonably requested. The Company will make its Director(s), officers, and independent accountant available to Shareholders to discuss the affairs, finances, and accounts of the Company at such reasonable times and as often as may be reasonably requested. To the extent the Company enjoys such rights of access and inspection with respect to the books, records, assets, and properties of any Portfolio Company, the Company shall enable the Shareholders to exercise the same upon reasonable notice to the Company.
 
  6.2.   Fiscal Periods. The Company and its subsidiaries, if any, shall observe twelve month fiscal periods ending on December 31 of each year.
 
  6.3.   Periodic Fiscal Reports. The Company shall prepare and provide to each Shareholder, quarterly and annual financial reports in a form acceptable to the Shareholders.
 
  6.4.   Portfolio Company Financial Statements. The Company shall provide each Shareholder with copies of each audited and unaudited financial statement of any Portfolio Company that is provided to the Company.
 
  6.5.   Books and Records. The Director(s) shall cause to be kept, accurate, complete and proper books, records and accounts pertaining to the Company’s affairs, including: (i) a list of Shareholders and their respective Initial Capital Contributions and any Additional Capital Contributions, Shares held of record and Ownership Percentages; (ii) a copy of the organizational documents of the Company and any amendments thereto; (iii) copies of the Company’s tax returns; and (iv) the Company’s books and records. All books, records and accounts of the Company shall be kept at its registered office or such other office as the Director(s) shall determine.
 
  6.6.   Reporting and Information Requirements. The Director(s) shall be obliged to provide to each of the Shareholders:

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  (a)   prompt notice of any actual or threatened legal action, suit or claim, or any administrative or governmental investigation or proceeding, instituted or threatened against the Company or any of its subsidiaries, or of any occurrence or dispute that involves a reasonable threat of action, suit, claim, investigation or proceeding being instituted, which in any case would have a material adverse effect upon the Company; and
 
  (b)   with reasonable promptness, such other information relating to the finances properties, business and affairs of the Company or its subsidiaries as any Shareholder may reasonable request.
  7.   TRANSFER OF SHARES
  7.1.   Limitations upon Transfer. No Shareholder shall, directly or indirectly, voluntarily or involuntarily, sell, hypothecate, pledge, encumber, assign, dispose, or in any other manner transfer (“Transfer”) any Shares except subject to the terms and conditions of and as provided in this Agreement and the Memorandum and Articles. Each Shareholder shall indemnify and hold the Company and each other Shareholder wholly and completely harmless from any cost, liability, or damage (including liabilities for income taxes and costs of enforcing this indemnity) incurred by such indemnified Persons as a result of a Transfer or attempted Transfer by such Shareholder in violation of this Agreement and the Memorandum and Articles. In the event that any Shareholder shall attempt to Transfer, in any way, all or any part of its Shares in violation of this Agreement, any such attempted Transfer shall not be effective to Transfer any Shares to any proposed transferee and the Company shall not recognize such purported Transfer for any purpose whatsoever.
 
  7.2.   No Transfers by Management Company. Management Company shall not Transfer or attempt to Transfer its Shares to any Person at any time without the prior, express, written consent of Branton and Clayburn.
 
  7.3.   Permitted Transfers by Certain Shareholders. Notwithstanding any provision of this Agreement to the contrary, each Shareholder other than Management Company shall be entitled, at any time, to Transfer any or all of its Shares to an Affiliate of such Shareholder (a “Permitted Transferee”); provided, however, that in the case of any such Transfer, such Shareholder shall have (i) complied with Section 7.5; and (ii) provided the other Shareholders and the Company with (A) written notice of such proposed transfer at least 10 calendar days prior to the consummation of such Transfer, stating the name and address of the Permitted Transferee and the relationship between the transferring Shareholder and the Permitted Transferee and (B) all documents required by Section 7.5.
 
  7.4.   Right of First Refusal.
  (a)   If any Shareholder other than Management Company (a “Selling Shareholder”) wishes or intends to Transfer all or part of its Shares to any Person other than a Permitted Transferee, pursuant to a bona fide offer (“Offer”) by such Person (a

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      Proposed Transferee”), such Selling Shareholder shall give written notice of such intention (a “ROFR Notice”) to the other Shareholders (except Management Company) (the “Other Shareholders”). The ROFR Notice shall include a copy of the Offer, and shall set forth the following information in respect of the Offer: (i) the name and address of the Proposed Transferee; (i) the number of Shares subject to the Offer; (iii) the per Share purchase price offered by such Proposed Transferee for such Shares; (iv) the proposed date of closing of such purchase; and (v) all other material terms and conditions of the Offer.
 
  (b)   The giving of a ROFR Notice to the Other Shareholders shall constitute a binding, irrevocable offer by the Selling Shareholder to sell all of the Shares that are the subject of the Offer to the Other Shareholders on the following terms:
  (i)   each of the Other Shareholders shall have the right, but not the obligation, to purchase from the Selling Shareholder all or a portion of the Shares that are the subject of the Offer at the price and on the same terms and conditions set forth in the ROFR Notice. Such right shall be exercisable by a Other Shareholder giving written notice to the Selling Shareholder, with a copy to the Company (“Exercise Notice”), at any time prior to the 20th calendar day after such Other Shareholder’s receipt of a ROFR Notice that such Other Shareholder elects to acquire all or any portion of the Shares to be Transferred as described in the ROFR Notice. Each Other Shareholder that timely sends such an Exercise Notice shall be a “ROFR Shareholder.” Such Exercise Notice shall set forth the number of Shares such ROFR Shareholder desires to purchase, which may be more or less than, or equal to, such Shareholder’s ROFR Percentage of the Shares that are the subject of the Offer (but in no event in excess of the amount of Shares that are the subject of the Offer). Each ROFR Shareholder shall have the right to purchase up to its ROFR Percentage of the Shares that are the subject of the Offer. In the event that one or more ROFR Shareholders have specified that they wish to purchase more than their respective ROFR Percentage of the Shares that are the subject of the Offer, the ROFR Shareholders shall be entitled to purchase the Shares that are the subject of the Offer on the following basis:
  (A)   if the aggregate amount of Shares requested to be purchased by all ROFR Shareholders pursuant to their respective Exercise Notices is equal to or less than the amount of the Shares that are the subject of the Offer, all such ROFR Shareholders shall purchase such Shares in the full amount set forth in their respective Exercise Notices; and
 
  (B)   if the amount of Shares requested to be purchased by all ROFR Shareholders pursuant to their respective Exercise Notices is in excess of the amount of Shares that are the subject of the Offer, then (1) each ROFR Shareholder shall be entitled to purchase an amount of the

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      Shares that are the subject of the Offer equal to the lesser of (x) such ROFR Shareholder’s ROFR Percentage of such Shares, and (y) the maximum amount of Shares specified in the Exercise Notice delivered by such ROFR Shareholder, and (2) the remaining available Shares (if any) shall be allocated pro rata by and among those ROFR Shareholders who have requested to purchase an amount of Shares in excess of their respective ROFR Percentage of the Shares that are the subject of the Offer, based on the ratio of the amount of Shares such ROFR Shareholder has requested in excess of its ROFR Percentage of the Shares that are the subject of the Offer, divided by the aggregate of all Shares in excess of the respective ROFR Percentages of the Shares that are the subject of the Offer that have been requested by all ROFR Shareholders.
  (ii)   to the extent the operation of the provisions of this Section 7.4 do not result in the Other Shareholders electing to purchase all of the Shares that are the subject of any Offer and ROFR Notice, the Selling Shareholder shall promptly send a further notice to each ROFR Shareholder of such fact, identifying the amount of Shares that remain available; such further notice shall constitute an offer from the Selling Shareholder to sell such remaining Shares on the terms and conditions set forth in the ROFR Notice. Within 5 calendar days after delivery of such further notice, each ROFR Shareholder may deliver a supplemental notice to the Selling Shareholder notifying the Selling Shareholder of the amount of such remaining Shares that any such ROFR Shareholder elects to purchase. If such supplemental notices indicate that the ROFR Shareholders wish to purchase more than the remaining available Shares, such Shares shall be allocated pro rata among the ROFR Shareholders, as appropriate, based on the respective amounts of Shares requested in all such supplemental notices.
  (c)   Except as set forth in Section 7.4(d), an Exercise Notice given pursuant to Section 7.4(b), when taken together with the ROFR Notice given, will constitute a binding legal agreement on the terms and conditions set forth therein.
 
  (d)   Notwithstanding the foregoing provisions of this Section 7.4, if, after completion of the foregoing procedures under this Section 7.4, the Other Shareholders fail to elect to purchase all of the Shares that are the subject of any ROFR Notice, then (i) unless the Selling Shareholder consents otherwise, the Other Shareholders shall not be entitled to purchase any of the Shares pursuant to this Section 7.4 in connection with the applicable Offer, and (ii) the Selling Shareholder may Transfer all (but not less than all) of such Shares to the Proposed Transferee in accordance with the terms and conditions set forth in the Offer. If the Selling Shareholder’s Transfer to the Proposed Transferee is not consummated in accordance with the terms of the Offer within 90 calendar days after the date of the ROFR Notice, the Offer shall be deemed to

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      lapse, and the Selling Shareholder may not Transfer any of the Shares described in the Offer without complying again with the provisions of this Section 7.
 
  (e)   The exercise or non-exercise by any Shareholder of the right to participate in any one or more sales of Shares pursuant to this Section 7.4 shall not adversely affect the right of such Shareholder to participate in subsequent sales of Shares pursuant to this Section 7.4.
 
  (f)   For purposes of clarity, the Parties acknowledge and agree that Management Company shall have no rights under this Section 7.4.
  7.5.   Conditions to Transfer. Notwithstanding anything in this Section 7 or elsewhere in this Agreement to the contrary, no Transfer of Shares shall be made or shall be effective:
  (a)   if such Transfer would (i) violate, conflict with, constitute a default under or result in a breach of; (ii) give rise to any right of termination, cancellation or acceleration under; or (iii) require any consent, authorization or approval under (unless such consent, authorization or approval has been obtained in advance), any agreement regarding the Company; or
 
  (b)   unless the transferee of such Shares has executed and delivered to the Company (i) such documents or instruments as shall be required by the Company to ensure compliance with all applicable securities laws; and (ii) such documents and instruments, in form a substance satisfactory to the Shareholders, to confirm the agreement of the transferee to be bound by all the terms and provisions of this Agreement, the Articles, and the Memorandum with respect to the Shares acquired thereby.
  7.6.   Notice of Completion of Sale. Promptly after any Transfer to a Person other than an Other Shareholder, the Selling Shareholder shall notify the Company and the Other Shareholders of the consummation thereof and shall furnish the Company and the Other Shareholders with evidence of the completion of such Transfer in accordance with the terms of this Agreement and of the terms of such Transfer.
 
  7.7.   Amendment of Exhibit A. Upon the completion of any Transfer of Shares in accordance with this Agreement, the Company shall promptly amend Exhibit A to this Agreement to reflect such Transfer and provide the notice required by Section 16.5.
  8.   ISSUANCES OF ADDITIONAL SHARES
  8.1.   Issuances to Shareholders. In addition to the requirement referred to in Section 5.2 for Founding Shareholder Approval, the Company shall not issue any shares to any Shareholder (whether in connection with an Additional Capital Call or otherwise) unless such Shareholder has executed and delivered to the Company such

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      documents or instruments as shall be required by the Company to ensure compliance with all applicable securities laws.
 
  8.2.   Issuances to Non-Shareholders. In addition to the requirement referred to in Section 5.2 for Founding Shareholder Approval, the Company shall not issue any Shares to any Person other than a Shareholder unless such Person has executed and delivered to the Company (i) such documents or instruments as shall be required by the Company to ensure compliance with all applicable securities laws; and (ii) such documents and instruments, in form a substance satisfactory to the Shareholders, to confirm the agreement of such Person to be bound by all the terms and provisions of this Agreement, the Articles, and the Memorandum with respect to the Shares acquired thereby.
 
  8.3.   Amendment of Exhibit A. Upon the issuance of additional Shares to any Person, the Company shall promptly amend Exhibit A to this Agreement accordingly to reflect such issuance, and such amendment shall be effective as of the date necessitating such amendment. The Company shall notify the Shareholders of any such amendment in accordance with Section 16.5.
 
  8.4.   No Pre-emptive Rights. The Shareholders shall not have pre-emptive rights with respect to any issuance of Company Securities by the Company.
  9.   TAX MATTERS
  9.1.   Partnership for United States Tax Purposes. It is the intention of the Shareholders that the Company be classified as a partnership for Unites States federal (and applicable state) tax purposes for all periods for which the Company’s classification in relevant for such tax purposes, and that this Agreement be the applicable partnership agreement. Accordingly, the Shareholders agree that at such time as the Company’s classification becomes relevant for such tax purposes the Company will file an election to be so classified with the Internal Revenue Service.
 
  9.2.   Management Company Shares. Shares issued to Management Company as provided herein shall be deemed issued for future services pursuant to sections 2.3 and 2.4 of the Articles; and the Director(s) are authorized and directed to adopt the appropriate resolution to accomplish that result.
 
  9.3.   Override of Articles and Memorandum. To the extent required to implement the sharing of profits, losses, and distributions provided herein, the Shareholders consent to the variation in the rights attached to the Company’s stock as provided in article 8 of the Memorandum; and further, the Shareholders hereby instruct the Director(s) to implement the Company’s dividend policy, set forth in article 18 of the Articles, in such a way that the aforesaid sharing of profits, losses, and distributions be accomplished.

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  10.   ALLOCATIONS OF PROFITS AND LOSSES AND DISTRIBUTIONS
  10.1.   Additional Definitions. For purposes of this Section 10, the following terms shall have the meanings indicated:
 
      Capital Account” of a Shareholder shall mean the amount contributed by such Shareholder as an Initial Capital Contribution or Additional Capital Contribution; increased by such Shareholder’s allocable share of Profits and reduced by (i) such Shareholder’s allocable share of Losses and (ii) distributions to such Shareholder pursuant to Section 10.2, below.
 
      Unreturned Capital” of the Founding Shareholders shall mean their Initial Capital Contributions as well as any Additional Capital Contributions made to the Company minus distributions to the Founding Shareholders pursuant to Section 10.2 below.
 
      Profit” or “Loss” shall mean the positive or negative difference, respectively, of the Company’s items of income and gain (as would be determined for United States federal income tax purposes) minus the Company’s items of deduction and loss (similarly determined).
 
  10.2.   Distributions. Distributions from the Company shall be made to the Shareholders in the following proportions:
  (a)   to the Founding Shareholders, in the ratio of their respective Unreturned Capital, until their Unreturned Capital is zero; then
 
  (b)   85% to the Founding Shareholders, in the ratio of their Ownership Percentages and 15% to Management Company.
  10.3.   Allocation of Profit and Losses for United States Federal Income Tax Purposes.
  (a)   Profits of the Company shall be allocated as follows: (i) First, to Shareholders having negative Capital Accounts, in proportion thereto, until such Capital Accounts are increased to zero; (ii) Next, to the Founding Shareholders to the extent necessary to increase their Capital Accounts to the amount of their Unreturned Capital; and (iii) Next, to the Shareholders in the ratio of 85% to the Founding Shareholders in proportion to their Ownership Percentages and 15% to Management Company.
 
  (b)   Losses of the Company shall be allocated as follows: (i) First, to the extent that any Profits have theretofore been allocated to Shareholder(s) pursuant to Section 10.3(a)(iii), then Losses shall be allocated to such Shareholder(s) in the same amounts and same ratios as such Profits; (ii) Next, to the extent that any Profits have theretofore been allocated to Shareholder(s) pursuant to Section 10.3(a)(ii), then Losses shall be allocated to such Shareholder(s) in the same amounts and same ratios as such Profits; (iii) Next, to the extent that any Profits have theretofore been allocated to Shareholder(s) pursuant to Section

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      10.3(a)(i), then Losses shall be allocated to such Shareholder(s) in the same amounts and same ratios as such Profits; and (iv) Next, to the Shareholders, in the ratio of their Capital Accounts.
 
  (c)   The Parties acknowledge and agree that this Section 10.3 solely governs the allocation among the Shareholders of Profits and Losses for United States federal income tax purposes should such allocation ever become necessary, and that Section 10.2 governs the distribution of funds from the Company to the Shareholders.
  10.4.   No Liability for Negative Capital Accounts. No Shareholder shall have any obligation to contribute to the Company the amount (if any) of its negative Capital Account.
  11.   MANAGEMENT COMPANY’S EQUITY OPTION
  11.1.   Equity Option. At any time after February 15, 2009, Management Company shall have the option (the “Equity Option”) to require the Company to redeem all of the Shares held, directly or indirectly by Management Company’s and its Affiliates (if any) in accordance with this Section 11. In order to exercise the Equity Option, Management Company shall deliver (in accordance with Section 16.10) to the Company and other Shareholders the Equity Option Exercise Notice, substantially in the form as that attached hereto as Exhibit B (the “Equity Option Exercise Notice”), in which Management Company shall irrevocably agree to have all of its (and any Affiliates’) Shares redeemed by the Company in exchange for the Equity Option Payment (as defined herein) pursuant to this Section 11.
 
  11.2.   Calculation of Equity Option Payment. The amount of the cash distribution to be made by the Company to Management Company in connection with Management Company’s exercise of the Equity Option and redemption of its Shares (the “Equity Option Payment”) shall be equal to the amount of distributions that Management Company would be entitled to under this Agreement if the Company were to sell all of the securities of the Portfolio Companies then owned by the Company, pay in full all Margin Debt then owed by the Company, and then promptly thereafter distribute the Company’s residual cash to the Shareholders pursuant to Section 10.2. For purposes of calculating the Equity Option Payment, the Company shall be deemed to have sold all securities of Portfolio Companies that the Company owns on the Equity Option Date for an amount equal to the Fair Market Value (as defined herein) of such securities as of such date.
 
  11.3.   Payment of Equity Option Payment. Within 60 calendar days of the Equity Option Date (or such other later date as the Company and Management Company may agree), the Company shall distribute to Management Company an amount equal to the Equity Option Payment in complete redemption of all of the Shares held by Management Company and its Affiliates (if any). Management Company shall execute and deliver (and cause its Affiliates holding any Shares to execute and

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  deliver)   such documents, certificates, and other instruments which may be reasonably requested by the Company to evidence such redemption.
 
  11.4.   Determination of “Fair Market Value”. As used in this Section 11, the term “Fair Market Value” shall mean the aggregate fair market value as determined in accordance with this Section 11.4 (it being understood and agreed that any determination of Fair Market Value pursuant to this Section 11.4 shall take into account any premium or discount for marketability, if applicable).
 
      In each instance, the Fair Market Value shall be agreed in writing between Management Company and the Company. If Management Company and Company cannot agree upon the Fair Market Value within a reasonable period of time (not to exceed one calendar month), the Fair Market Value shall be determined by a firm of investment bankers headquartered in the United States or the United Kingdom of recognized international standing agreed upon in writing by Management Company and the Company. Management Company and Company shall share the expense of such investment banking firm equally. In the event that Management Company and Company cannot agree on an investment banking firm, the Fair Market Value shall be determined by two independent investment banking firms headquartered in the United States or the United Kingdom of recognized international standing, one selected by Management Company and one selected by Company. The Fair Market Value shall be the average of the two calculations; provided, however, that if the higher of the two calculations exceeds the lower calculation by an amount in excess of 10%, then the Fair Market Value shall be determined in accordance with the procedure set forth in the following four sentences. Within 10 Business Days of delivery of Management Company calculation and the Company calculation, a third investment banking firm headquartered in the United States or the United Kingdom of international standing will be chosen by mutual agreement of the investment banking firms selected by Management Company and the Company. The third investment banking firm shall calculate what deems to be the Fair Market Value. The Fair market Value shall be the average of the third investment banking firm’s calculation and the calculation of the independent investment banking firm closest to the third investment banking firm’s calculation. In the event the two independent investment banking firms cannot mutually agree to a third investment banking firm, such third investment banking firm shall be appointed by the President of the International Chamber of Commerce. Each of Management Company and the Company shall bear its own expense for the calculation of the investment banking firm nominated by it and Management Company and the Company shall share the expense of the third investment banking firm equally, if required.
  12.   LIMITATION OF LIABILITY
  12.1.   Liability. To the fullest extent permitted by Applicable Law, the debts, obligations, and liabilities of the Company, whether arising in contract, tort, or otherwise, shall be solely the debts, obligations, and liabilities of the Company, and no Shareholder, Director, or Affiliate of any of the foregoing shall be obligated personally for any

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      such debt, obligation, or liability of the Company solely by reason of being a Shareholder, Director, or Affiliate of any of the foregoing.
 
  12.2.   Reliance Upon Agreement. To the fullest extent permitted by Applicable Law, no Shareholder or Director shall be liable to the Company, any Shareholder, or any other Person for any loss or liability arising out of any act or omission in connection with the Company taken or omitted by such Person in good faith reliance on the provisions of this Agreement.
 
  12.3.   Exculpation.
  (a)   To the fullest extent permitted by Applicable Law, and except as otherwise expressly provided herein, no Shareholder or Director shall be liable to the Company or any Shareholder for any loss or liability (including any direct or indirect consequential losses, loss of profit and loss of reputation, damages, claims, demands, proceedings, costs, expenses, penalties, legal and other professional fees and costs) arising out of any act or omission of such Person in connection with the Company to the extent that such act or omission was taken or omitted in good faith and in a manner such Person reasonably believed to be in the best interests of the Company or permitted by this Agreement, and the aforesaid exclusion of liability shall apply howsoever such loss or liability arises, and whether in contract, tort, or otherwise, and whether caused in whole or in part by the negligence of, or breach of contract, or breach of duty (statutory or otherwise) by such Shareholder or Director.
 
  (b)   To the fullest extent permitted by Applicable Law, the Company undertakes to hold harmless, indemnify, and to keep indemnified, the Shareholders and Directors against all losses or liabilities (including any direct or indirect consequential losses. loss of profit and loss of reputation, damages claims, demands proceedings, costs, expenses, penalties, legal and other professional fees and costs) which may be suffered or incurred by any of them and which arise directly or indirectly in connection with them relying in good faith upon the records of the Company and upon such information, opinions, reports, or statements presented to the Company by any Person as to matters such the Company believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, and the aforesaid indemnity shall apply howsoever such losses or liabilities arise, and whether in contract, tort, or otherwise and whether caused in whole or in part by the negligence of, or breach of contract, or breach of duty (statutory or otherwise) by, such Shareholders or Directors.
  13.   CONFIDENTIALITY
  13.1.   Confidentiality and Ownership of Information. All information (“Information”) furnished or disclosed by the Company to the Shareholders pursuant to this Agreement, whether in writing or orally, shall be deemed the property of the Company and, when in tangible form, shall be returned to the Company upon

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    request. All Information shall be held in confidence by the receiving Shareholder and shall be used by the receiving Shareholder only for the purpose of evaluating its investment in the Company. The receiving Shareholder shall promptly notify the Company of any request by any court, tribunal, governmental agency, or other third party for disclosure by the receiving Shareholder of any of the Information, and shall cooperate with the Company in its efforts to maintain the confidentiality of such Information. Notwithstanding the foregoing, Information shall not include any information that: (i) was known to the receiving Shareholder prior to the date of delivery (as documented by a dated writing); (ii) was publicly known or available prior to its delivery or that may become so without breach of this Agreement by the receiving Shareholder; or (iii) was provided to the receiving Shareholder by any third party not subject to any restriction upon disclosure.
 
  13.2.   Restrictions on Use. Each Shareholder agrees that it shall not, and shall to the extent practicable cause other Persons not to, use any Information, except as specifically provided in this Agreement or as otherwise expressly authorized in writing by the Company.
  14.   TERMINATION
  14.1.   Termination Events. This Agreement shall terminate and shall have no further force and effect as of the earlier of: (i) the first date upon which any Company Securities shall be offered by the Company to the public pursuant to an effective registration statement filed under the securities laws of any governmental authority with jurisdiction over such offer; (ii) the written agreement of the Founding Shareholders that this Agreement shall be terminated, as of the date of such agreement; or (iii) the distribution of all of the Company’s interests in the Portfolio Companies in connection with the liquidation of the Company.
 
  14.2.   Effect of Termination. Termination of this Agreement shall not (i) relieve any Party from any liability or obligation for any matter, undertaking, or condition which has not been done, observed, or performed by such Party before such termination; or (ii) affect the terms of Sections 13, 14, 15, and 16.
  15.   GOVERNING LAW AND DISPUTE RESOLUTION
  15.1.   Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, English law.
 
  15.2.   Dispute Resolution.
  (a)   Any dispute (a “Dispute”) arising out of or in connection with this Agreement shall be finally settled under the ICC Rules by three arbitrators appointed in accordance with the ICC Rules. The seat of the arbitration shall be London, England and the language of the arbitration shall be English.

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  (b)   Unless the Parties agree on the identity of a sole arbitrator, an arbitral panel of three arbitrators shall be established according to the ICC Rules in force at the time such arbitration is commenced.
 
  (c)   The award which shall be provided with written reasons, given in any arbitration under this Section 15 shall be final and binding on the Parties and each Party waives any rights of appeal to any courts on any question of law to the fullest extent permitted by Applicable Law. In addition, Parties shall not have the right to commence or continue any legal proceeding concerning a claim or dispute under this Agreement until the claim or dispute has been determined according to the arbitration procedure, and then only to enforce or facilitate the execution of such arbitration award.
 
  (d)   Should a Party be required to institute any arbitration to enforce any provision of this Agreement, then the prevailing Party in such arbitration shall be entitled to recover its reasonable legal fees in addition to any other relief it may be entitled to under Applicable Law.
 
  (e)   The Parties shall continue to perform this Agreement during arbitration proceedings.
  16.   MISCELLANEOUS
  16.1.   Further Assurances. Each of the Parties agrees to perform (or procure the performance of) all future acts or things, and execute and deliver (or procure the execution and delivery of) such further instruments and documents as may be required by Applicable Law or as may be necessary or reasonably desirable to implement and/or give effect to this Agreement, including without limitation actions required by Section 2.4. Where any obligation in this Agreement is expressed to be undertaken or assumed by any Party, such obligation is to be construed as requiring the Party concerned to exercise all rights and powers of control over the actions of any other Person that such Party is able to exercise (directly or indirectly) in order to secure performance of the obligations.
 
  16.2.   Relationship of the Parties. Nothing in this Agreement, the Articles, or the Memorandum shall be interpreted as constituting (i) the relationship of the Shareholders as a partnership, quasi-partnership, association or any other relationship in which one or more of the Shareholders may (except as specifically provided in this Agreement) be liable generally for the acts of omissions of any other Shareholders; or (ii) any Shareholder as the general agent or representative of any other Shareholder of the Company (except as specifically provided in this Agreement).
 
  16.3.   Severability. Any provision of this Agreement that may be determined by competent authority to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction and so far as invalid or unenforceable, be given no effect and shall be deemed not to be included in this Agreement but without invalidating the

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      remaining provision of this Agreement, and any such prohibition or unenforceability in such jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
 
  16.4.   Entire Agreement. This Agreement (including the instruments expressly referred to herein) constitutes the full and entire understanding and agreement among the Parties in respect of the subject matter of this Agreement. This Agreement cancels and supersedes all prior understandings, negotiations, and agreements among the Parties, including the Term Sheet, with regard to the subject hereof.
 
  16.5.   Modification and Amendment; Notice of Amendment. Except for amendments to Exhibit A hereto by the Company expressly permitted by this Agreement, this Agreement may not be modified or amended except in writing and signed by all of the Parties. Upon any amendment of Exhibit A by the Company in accordance with the terms of this Agreement, the Company shall promptly send written notice of such amendment to all of the Shareholders, which notice shall include a copy of Exhibit A, as amended.
 
  16.6.   Waiver. No Party shall be deemed to have waived compliance by any other Party with any provision of this Agreement unless such waiver is in writing. No failure or delay by a Party in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or future exercise of it or the exercise of any other right or remedy.
 
  16.7.   Successors and Assigns. This Agreement shall be binding on the Parties and their respective successors and permitted assignees.
 
  16.8.   Assignment No Party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other Parties.
 
  16.9.   No Rights Under Contracts (Rights of Third Parties) Act 1999. A Person who is not a Party shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
 
  16.10.   Notices. Any demand, notice, or other communication to be made or given in connection with this Agreement (a “Communication”) shall be made or given in writing and delivered by personal delivery or by fax or by registered mail addressed to the recipient as follows:
     
To Clayburn:
  Clayburn Development Inc.
 
  Akara Bldg., 24 De Castro Street,
 
  Wickhams Cay I, Road Town, Tortola
 
  British Virgin Islands
 
  Attention: Pasqual Siegfried
 
  Fax No.: 41-22-810-17-19

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To Branton:
  Branton Limited
 
  Kings Court, 1st Floor, Bay Street,
 
  P.O. Box N-3944, Nassau, Bahamas
 
  Attention: Koulla Evripidou
 
  Fax No.: 357-25-331-719
 
   
To Management Company:
  Sorinvest Société a Responsibilité Limitée
 
  6 Rue Ibn Haz Cite Jardin-1002 Tunis
 
  Attention: Sergey Polikarpov
 
   
To the Company:
  Smart Hydrogen Inc.
 
  c/o Interros Holding Company
 
  9, Bolshaya Yakimanka Street
 
  119180 Moscow
 
  Russian Federation
 
  Attention: Marianna Zakharova
 
  Telephone No.: 7-495-785-63-61
 
  Fax: No. 7-495-785-63-62
 
   
 
  with copies (which shall not constitute notice) to:
 
   
 
  Baker Botts L.L.P.
 
  The Warner
 
  1299 Pennsylvania Avenue, N.W.
 
  Washington, DC 20004-2400
 
  United States of America
 
  Attention: Gregory J. Golden
 
  Telephone No.: (202) 639-7759
 
  Fax No.: (202) 585-1025
 
   
 
  and to:
 
   
 
  Sergey Polikarpov
 
  4 University Road, Apt. 405
 
  Cambridge, MA 02138
 
  United States of America
 
  Telephone No.: (617) 230-7810
    or such other address or individual as may be designated by a Communication from the party to another. Any Communication shall be conclusively deemed to have been given on the day of actual delivery thereof.
 
  16.11.   Equitable Remedies. The rights and remedies of each of the Parties under or pursuant to this Agreement are cumulative, may be exercised as often as such Party considers appropriate, and are in addition to its rights and remedies under

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      general law. Without prejudice to the generality of the foregoing, because of the difficulty of measuring economic losses that would result to the Company or the Shareholders due to any given breach of this Agreement, and because of the immediate and irreparable harm that any such breach could cause to the Company or the Shareholders, the Company and each Shareholder acknowledges and agrees that the Company and/or any Shareholder may bring a claim for specific performance, or any other applicable interim or equitable remedy in connection with a breach (or anticipated breach) of this Agreement.
 
  16.12.   Section Headings. The division of this Agreement into Sections and the insertion of headings are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement.
 
  16.13.   Costs and Expenses. Subject to Section 2.3, each Party shall pay its own costs, changes, and other expenses (including taxation) incurred in connection with the negotiation, preparation, and completion of this Agreement.
 
  16.14.   Counterparts. This Agreement may be executed in any number of counterparts and by the Parties on separate counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

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     IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day and year first written above.
             
    CLAYBURN DEVELOPMENT, INC.    
 
           
 
  By:   /s/ Pasqual Siegfried    
 
           
 
           
 
  Name:   Pasqual Siegfried    
 
           
 
           
 
  Title:   Director    
 
           
 
           
    BRANTON LIMITED    
 
           
 
  By:   /s/ Maria Lambrianidou    
 
           
 
           
 
  Name:   Maria Lambrianidou    
 
           
 
           
 
  Title:   Director    
 
           
 
           
    SORINVEST SOCIÉTÉ A RESPONSIBILITÉ LIMITÉE
 
           
 
  By:   /s/ Scheherezade Remmas    
 
           
 
           
 
  Name:   Scheherezade Remmas    
 
           
 
           
 
  Title:   General Manager    
 
           
 
           
    SMART HYDROGEN INC.    
 
           
 
  By:   /s/ Sergey Polikapov    
 
           
 
           
 
  Name:   Sergey Polikapov    
 
           
 
           
 
  Title:   Director    
 
           
[Signature Page to Shareholders Agreement]

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EXHIBIT A
SHAREHOLDERS’ INITIAL CAPITAL CONTRIBUTIONS, SHARES, AND OWNERSHIP PERCENTAGE
                     
Shareholder   Initial Capital Contributions   Shares   Ownership Percentage
   
 
               
Clayburn  
1. $50,000,000 shall be paid on or prior to February 28, 2006
    149,985       49.995 %
   
 
               
   
2. $100,000,000 shall be paid on or prior to July 31, 2007
               
   
 
               
Branton  
1. $50,000,000 shall be paid on or prior to February 28, 2006
    149,985       49.995 %
   
 
               
   
2. $100,000,000 shall be paid on or prior to December 31, 2006
               
   
 
               
Management Company  
$0.00
    30       0.01 %

A-1


 

EXHIBIT B
FORM OF EQUITY OPTION EXERCISE NOTICE
[Date]
Smart Hydrogen Inc.
c/o Interros Holding Company
9, Bolshaya Yakimanka Street
119180 Moscow
Russian Federation
Attention: Marianna Zakharova
     
Re:
  Equity Option Exercise Notice under Shareholders Agreement, dated as of February 15, 2006, by and among Smart Hydrogen Inc., Branton Limited, Clayburn Development Inc., and Sorinvest Société a Responsibilité Limitée (the “Agreement”)
Dear Ms. Zakharova:
     Reference is made the Agreement identified above. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the Agreement.
     Pursuant to Sections 11.1 and 16.10 of the Agreement, Management Company hereby gives the Company notice that Management Company hereby requests and irrevocable agrees to have the Company redeem all of the Shares held, directly or indirectly, by the Management Company or its Affiliates in exchange for the Equity Option Payment, as determined and paid in accordance with the Agreement. Please pay make such Equity Option Payment in accordance with the wire transfer instructions enclosed herein. Please send any documents, certificates, or instruments that the Company wishes for the Management Company or its Affiliates to execute to the Management Company’s address set forth in the Agreement.
             
    Very truly yours,    
 
           
    SORINVEST SOCIÉTÉ A RESPONSIBILITÉ LIMITÉE
 
           
 
  By:        
 
           
 
           
 
  Name:        
 
           
 
           
 
  Title:        
 
           
     
cc:
  Baker Botts L.L.P.
 
  The Warner
 
  1299 Pennsylvania Avenue, N.W.
 
  Washington, DC 20004-2400
 
  United States of America
 
  Attention: Gregory J. Golden

B-1

EX-99.D 5 h35166exv99wd.htm STOCK PURCHASE AGREEMENT exv99wd
 

EXHIBIT D
STOCK PURCHASE AGREEMENT
     This Stock Purchase Agreement (this “Agreement”) is entered into this 10th day of April 2006, by and between DTE Energy Foundation, a Michigan non-profit corporation (“Seller”), and Smart Hydrogen Inc., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Buyer”) (each of Seller and Buyer is sometimes referred to herein as a “Party” and collectively as the “Parties”).
RECITALS
     WHEREAS, Seller owns 1,825,000 shares (the “Sale Shares”) of the common stock, par value $0.01 per share, of Plug Power Inc., a Delaware corporation (the “Company”); and
     WHEREAS, Buyer desires to purchase the Sale Shares from Seller, and Seller desires to sell the Sale Shares to Buyer, subject to and in accordance with the terms and conditions set forth herein; and
     WHEREAS, Buyer and the Company are parties to that certain Stock Purchase Agreement, of even date herewith (the “Company Purchase Agreement”), whereby the Company has agreed to issue and sell, and Buyer has agreed to purchase, certain shares of preferred stock of the Company and to execute certain other agreements and consummate certain other transactions in connection therewith;
AGREEMENT
     NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
     1. Definitions; Interpretation.
          1.1 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
          “Affiliate” shall mean, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person.
          “Applicable Laws” means all applicable laws, statutes, ordinances, orders, rules, regulations, policies, or guidelines promulgated, or judgments, decisions or orders entered, by any Governmental Authority.
          “Business Day” means any day that is not a Saturday, a Sunday, or other day on which banks are required or authorized by law to be closed in the City of New York, NY.
          “Buyer” shall have the meaning specified in the preamble to this Agreement.

 


 

          “Company” shall have the meaning specified in the recitals to this Agreement.
          “Company Closing” shall mean the consummation of the Company Transaction in accordance with the terms and conditions of the Company Purchase Agreement.
          “Company Purchase Agreement” shall have the meaning specified in the recitals to this Agreement.
          “Company Transaction” shall mean, collectively, all of the transactions contemplated by the Company Purchase Agreement, including without limitation the sale and issuance of Class B Capital Stock, a series of preferred stock, by the Company to Buyer.
          “Contract”, when used with respect to any Person, means any note, bond, indenture, mortgage, deed of trust, lease, franchise, permit, authorization, license, contract, instrument, employee benefit plan, or practice, or other agreement, obligation, commitment, or concession of any nature to which such Person is a party, by which such Person or any of its assets or properties is bound or affected, or pursuant to which such Person is entitled to any rights or benefits.
          “control” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or voting interests, by contract, or otherwise.
          “DTE” shall mean DTE Energy Company, a Michigan corporation.
          “DTE Closing” shall have the meaning specified in Section 4 of this Agreement.
          “DTE Closing Date” shall have the meaning specified in Section 4 of this Agreement.
          “DTE Transaction” shall mean, collectively, all of the transactions contemplated by the DTE Transaction Agreements.
          “DTE Transaction Agreements” shall mean, collectively, this Agreement, the Seller Voting Agreement, the DTE Voting Agreement, and the Lock-Up Agreement.
          “DTE Ventures” shall mean DTE Energy Ventures, Inc., a Michigan corporation and wholly-owned subsidiary of DTE.
          “DTE Voting Agreement” shall mean that certain Voting Agreement And Irrevocable Proxy of even date herewith by and among Buyer, DTE, and DTE Ventures.
          “GAAP” shall mean U.S. generally accepted accounting principles.

-2-


 

          “Governmental Authority” shall mean any federal, state, local, or foreign government, governmental, regulatory, or administrative authority, agency, or commission or any court, tribunal, or judicial, or arbitral body.
          “Governmental Order” shall mean any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with any Governmental Authority.
          “Lien” shall mean any encumbrance, lien (statutory or otherwise), pledge, charge, claim, security interest, mortgage, pledge, hypothecation, charge, claim, option, right to acquire, adverse interest, assignment, deposit arrangement, restriction, purchase agreement, voting agreement, standstill agreement, restriction on transfer (other than restrictions upon transfer under the Securities Act or the State Acts), or other encumbrance of any nature whatsoever, whether consensual, statutory, or otherwise.
          “Lock-Up Agreement” shall mean that certain Lock-Up Letter Agreement of even date herewith by and among DTE, DTE Ventures, and the Company.
          “Person” shall mean a person, corporation, partnership, limited liability company, joint venture, trust, or other entity or organization.
          “Purchase Price” shall have the meaning specified in Section 3 of this Agreement.
          “Sale Shares” shall have the meaning specified in the recitals to this Agreement.
          “Securities Act” shall have the meaning specified in Section 6.4 of this Agreement.
          “Seller” shall have the meaning specified in the preamble to this Agreement.
          “Seller Voting Agreement” shall mean that certain Voting Agreement And Irrevocable Proxy of even date herewith by and between Buyer and Seller.
          “State Acts” shall have the meaning specified in Section 6.4 of this Agreement.
          1.2 Rules of Construction. Unless the context otherwise requires, as used in this Agreement (i) a term has the meaning ascribed to it; (ii) “or” is not exclusive; (iii) “including” means “including without limitation;” (iv) words in the singular include the plural and vice versa; (v) words applicable to one gender shall be construed to apply to each gender; (vi) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (vii) the term “Section” refers to the specified Section of this Agreement; and (viii) the descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. A reference to any Person includes such Person’s successors and permitted assigns.
     2. Sale of the Sale Shares. At the DTE Closing, Seller shall sell, assign, transfer, and convey to Buyer all right, title, and interest in and to (i) the Sale Shares free and clear of any and all Liens and (ii) all registration and similar rights held by Seller with respect to the Sale

-3-


 

Shares. Simultaneously with payment by Buyer of the Purchase Price, Seller shall execute and deliver to Buyer a stock transfer power in the form of Exhibit A attached hereto (which is hereby incorporated herein and made a part hereof).
     3. Payment of Purchase Price. At the DTE Closing, as consideration for, and simultaneously with, Seller’s delivery of the Sale Shares to Buyer, Buyer shall pay to Seller the sum of US$9,855,000 (the “Purchase Price”) by wire transfer of immediately available funds to the following account (or to such other account as Seller designates in writing):
     
Bank Name:
  Comerica Bank
ABA No.:
  072000096
Account No.:
  1851022515
Account Name:
  DTE Energy Foundation
     4. Closing. Unless otherwise agreed in writing by the Parties, the closing of the transactions under this Agreement (the “DTE Closing”) shall take place at the offices of Goodwin Procter LLP, located at Exchange Place in Boston, Massachusetts, contemporaneously with, but immediately prior to, the Company Closing, provided that all of the conditions set forth in Section 8 hereof have been satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the DTE Closing, but subject to the satisfaction or waiver of those conditions). The date upon which the DTE Closing occurs is referred to herein as the “DTE Closing Date.” Buyer shall notify the DTE Parties in writing of the DTE Closing Date at least three Business Days in advance thereof.
5. Additional Covenants
          5.1 Execution of Other DTE Transaction Agreements. Contemporaneously with the execution of this Agreement, each of the Parties shall execute and deliver, or cause to be executed and delivered, each of the other DTE Transaction Agreements to which it is a party.
          5.2 Further Assurances. From time to time prior to the Closing, at the reasonable request of either Party, the other Party shall execute and deliver, or cause to be executed and delivered, such additional documents and instruments and take all such further action as may be necessary or desirable to consummate the DTE Transaction Agreements.
     6. Representations and Warranties of Seller. Seller hereby represents and warrants to Buyer the following:
          6.1 Organization, Good Standing, and Qualification. Seller is a non-profit corporation duly organized and validly existing, and in good standing under the laws of the State of Michigan.
          6.2 Authority and Authorization. Seller has the requisite corporate power and authority to execute, deliver, and perform its obligations under each DTE Transaction Agreement to which it is a party, and to consummate the transactions contemplated thereby. The execution, delivery, and performance by Seller of each DTE Transaction Agreement to which it is a party, and the consummation of all transactions contemplated thereby, have been duly authorized by all

-4-


 

necessary corporate action on the part of Seller. Each DTE Transaction Agreement to which Seller is a party has been duly and validly executed and delivered by Seller and constitutes a legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
          6.3 No Conflicts. The execution, delivery, and performance of the DTE Transaction Agreements do not, and the consummation of the transactions contemplated thereby shall not, (i) conflict with, or result in the breach of, any provision of Seller’s certificate of incorporation or by-laws, or any other similar governing or organizational document of Seller; (ii) violate any Applicable Laws with respect to Seller or any of its properties or assets; or (iii) conflict with or result in any violation or breach of or default (with or without notice or lapse of time, or both) under, or the creation of a Lien on any assets pursuant to (any such conflict, violation, breach, default, or creation, a “Violation”) any Contract to which Seller is a party, by which Seller or any of its assets or properties is bound or affected, or pursuant to which Seller is entitled to any rights or benefits.
          6.4 No Consents or Approvals. Except for any filings or approvals that may be required by the Securities Act of 1933, as amended (the “Securities Act”), or under the securities laws of any state (the “State Acts”), no waiver, approval, authorization, order, license, permit, franchise or consent of or registration, declaration, qualification or filing with any Governmental Authority or any other Person is required to be obtained or made by Seller in connection with the execution, delivery, and performance by Seller of the DTE Transaction Agreements to which it is a party.
          6.5 Ownership of Sale Shares. Seller has good title to, and is the beneficial and record owner of, all of the Sale Shares, free and clear of any Liens or restrictions (other than the customary legend, which has been placed on the certificates evidencing such shares, requiring any sale, transfer, pledge or other disposition to be made in compliance with state and federal securities laws) on the voting or transfer rights thereof, such voting rights being subject only to the terms and conditions of the Company’s organizational documents and the DTE Transaction Agreements.
          6.6 Contracts Relating to Sale Shares. Neither Seller nor any of its Affiliates is a party to or bound by any other Contract concerning or relating to the Sale Shares except the DTE Transaction Agreements.
          6.7 Confidentiality. Neither Seller nor any of its Affiliates has made any public announcement with respect to the Company Transaction or the DTE Transaction.
          6.8 Fees. No agent, broker, finder, or investment banker is or will be entitled to any broker’s, finder’s, or other fee or commission, or to reimbursement of expenses, or to indemnification or contribution in connection with the Transaction based upon arrangements made by or on behalf of Seller or any of its Affiliates. All fees, commissions, or other like

-5-


 

payments claimed to be due to any advisor, consultant, or broker assisting Seller in connection with the Transaction, or the negotiations leading to this Agreement, shall be paid by Seller, and Buyer shall have no liability therefor.
     7. Representations and Warranties of Buyer. Buyer hereby represents and warrants to Seller as follows:
          7.1 Organization. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the British Virgin Islands.
          7.2 Authority and Authorization. Buyer has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement and the Seller Voting Agreement, and to consummate the transactions contemplated hereby and thereby. The execution, delivery, and performance of this Agreement and the Seller Voting Agreement by Buyer, and the consummation of all transactions contemplated hereby and thereby, have been duly authorized by all necessary corporate action on the part of Buyer. This Agreement and the Seller Voting Agreement have been duly and validly executed and delivered by Buyer and constitute legal, valid, and binding obligations of Buyer, enforceable against Buyer in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
          7.3 No Conflicts. The execution and delivery of this Agreement and the Seller Voting Agreement do not, and the consummation of the transactions contemplated hereby and thereby shall not, (i) conflict with, or result in the breach of, any provision of Buyer’s governing or organizational documents; (ii) violate any Applicable Laws applicable to Buyer or any of its properties or assets; or (iii) constitute a Violation with respect to any Contract to which Buyer is a party, by which Buyer or any of its assets or properties is bound or affected, or pursuant to which Buyer is entitled to any rights or benefits.
          7.4 No Consents or Approvals. Except for any filings or approvals that may be required by the Securities Act or the State Acts, no waiver, approval, authorization, order, license, permit, franchise or consent of or registration, declaration, qualification or filing with any Governmental Authority or any other Person is required to be obtained or made by Buyer in connection with the execution, delivery, and performance by Buyer of this Agreement or the Seller Voting Agreement.
          7.5 Investment; Experience; Accredited Investor.
  (a)   Buyer is acquiring the Shares for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof. Buyer understands that the Sale Shares have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon,

-6-


 

      among other things, the bona fide nature of the investment intent and the accuracy of the Buyer’s representations and warranties contained herein.
 
  (b)   Buyer understands that the purchase of the Sale Shares involves substantial risk. Buyer has experience as an investor in securities of companies and acknowledges that it is able to fend for itself, can bear the economic risk of its investment in the Shares, and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of this investment in the Shares and protecting its own interests in connection with this investment.
 
  (c)   Buyer is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act.
 
  (d)   Buyer has had an opportunity to ask the Company all questions which Buyer deems necessary to enable it to evaluate this investment in the Sale Shares. Buyer has received answers from the Company which it deems satisfactory and has received no information with respect to the Company from Seller.
          7.6 Restricted Securities. Buyer understands that the Sale Shares to be purchased by Buyer hereunder are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired from Seller in a transaction not involving a public offering and that under the Securities Act and applicable regulations thereunder such securities may be resold without registration under the Securities Act only in certain limited circumstances. Buyer shall not transfer the Sale Shares in violation of the Securities Act.
          7.7 Fees. Except for Citigroup Global Markets, Inc., no agent, broker, finder, or investment banker is or will be entitled to any broker’s, finder’s, or other fee or commission, or to reimbursement of expenses, or to indemnification or contribution in connection with the Transaction based upon arrangements made by or on behalf of Buyer. All fees, commissions or other like payments claimed to be due to Citigroup Global Markets, Inc. or any other advisor, consultant, or broker assisting Buyer in connection with the Transaction, or the negotiations leading to this Agreement, shall be paid by Buyer, and Seller shall have no liability therefor.
     8. Conditions to DTE Closing.
          8.1 Joint Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the DTE Transaction shall be subject to the satisfaction, at or prior to the DTE Closing, of each of the following conditions, any of which may be waived by mutual written agreement of the Parties:
          (a) No Order. No Governmental Order by any court or other Governmental Authority, or other legal restraint or prohibition, shall be in effect preventing consummation of the DTE Transaction or challenging the validity, enforcement, or performance of any of the DTE Transaction Agreements, or permitting such consummation, enforcement, or performance only

-7-


 

subject to any condition or restriction that has had or would reasonably likely have a material adverse effect on the DTE Transaction.
          (b) Third Party Consents. All consents and notices that are required in connection with the consummation of the transactions contemplated by the DTE Transaction Agreements shall have been obtained.
          8.2 Conditions to the Obligations of Seller. The obligations of Seller to consummate the DTE Transaction shall be subject to the satisfaction, at or prior to the DTE Closing, of each of the following conditions, any of which may be waived by Seller:
          (a) Payment of Purchase Price. Buyer shall have delivered the Purchase Price to Seller.
          (b) Representations and Warranties. The representations and warranties of Buyer shall have been true and correct as of the date hereof and shall be true and correct as of the DTE Closing Date with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date).
          (c) Covenants. Buyer shall have performed in all material respects all obligations, and shall have complied in all material respects with all agreements and covenants of Buyer to be performed or complied with by it under this Agreement and the Seller Voting Agreement.
          8.3 Conditions to the Obligations of Buyer. The obligations of Buyer to consummate the DTE Transaction shall be subject to the satisfaction, at or prior to the DTE Closing, of each of the following conditions, any of which may be waived by Buyer:
          (a) Company Closing. Buyer and the Company shall have consummated the Company Transaction contemporaneously with the DTE Closing.
          (b) Sale Shares. Seller shall have duly executed and delivered to Buyer one or more certificates representing all of the Sale Shares.
          (c) Representations and Warranties. The representations and warranties of Seller shall have been true and correct as of the date hereof and shall be true and correct as of the DTE Closing Date with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date).
          (d) Covenants. Seller shall have performed in all material respects all obligations, and shall have complied in all material respects with all agreements and covenants of Seller to be performed or complied with by it under each DTE Transaction Agreement to which it is a party.
     9. Termination.

-8-


 

          (a) Optional Termination. This Agreement may be terminated and the DTE Transaction may be abandoned at any time prior to the DTE Closing:
  (i)   by mutual written consent of each of Buyer and Seller;
 
  (ii)   by Buyer, if Seller has taken any action that constitutes a Violation of the Seller Voting Agreement, or failed to take any action and such failure constitutes a Violation of the Seller Voting Agreement;
 
  (iii)   by Buyer, if either DTE or DTE Ventures has taken any action that constitutes a Violation of either the DTE Voting Agreement or the Lock-Up Agreement, or has failed to take any action and such failure constitutes a Violation of either the DTE Voting Agreement or the Lock-Up Agreement;
 
  (iv)   by either Party, at any time prior to the DTE Closing if the DTE Closing has not occurred on or before September 30, 2006; or
 
  (v)   by Buyer, if Seller has terminated the Seller Voting Agreement or DTE has terminated the DTE Voting Agreement.
          (b) Automatic Termination. This Agreement shall automatically terminate, without any action by either Party or any other Person, immediately upon: (i) the termination of the Company Purchase Agreement prior to the Company Closing; (ii) the consummation of the Company Transaction; (iii) the termination of the DTE Voting Agreement by either DTE or DTE Ventures pursuant to and in accordance with clause (ii) of section 5.1(b) of the DTE Voting Agreement; or (iv) the termination of the Seller Voting Agreement by Seller pursuant to and in accordance with clause (ii) of section 5.1(b) of the Seller Voting Agreement.
     10. Effect of Termination. In the event of the termination of this Agreement pursuant to Section 9, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of either Party or its directors, officers, affiliates, employees, partners, managers, members, or stockholders, and all rights and obligations of each Party shall cease; provided, however, that nothing contained in this Section 10 shall relieve either Party from liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement. For the avoidance of any doubt, the Parties acknowledge that in the event (x) all of the conditions of a Party’s obligation to consummate the DTE Transaction contained in Sections 8.1, 8.2, and 8.3 have been either satisfied or waived, and (y) such Party has failed to consummate the DTE Transaction in breach of this Agreement, then any termination of this Agreement pursuant to clause (ii) of Section 9(b) shall not relieve such Party from any liabilities or damages arising out of such breach.
11. Miscellaneous.
          11.1 Expenses. Whether or not the DTE Transaction is consummated, and except as otherwise provided this Agreement, each Party shall pay its own expenses (including,

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without limitation, the fees, costs and disbursements of counsel and other advisors) incident to preparing for, entering into and carrying out this Agreement and the consummation of the DTE Transaction.
          11.2 Specific Performance. Seller agrees that Buyer would be irreparably damaged if for any reason Seller fails to perform any of its obligations under this Agreement, and that Buyer would not have an adequate remedy at law for money damages in such event. Accordingly, Buyer shall be entitled to seek specific performance and injunctive and other equitable relief to enforce the performance of this Agreement by Seller. This provision is without prejudice to any other rights that Buyer may have against Seller, or that Seller may have against Buyer, for any failure to perform its obligations under this Agreement.
          11.3 Notices. All notices or communications given or made pursuant hereto or the Seller Voting Agreement shall be in writing and shall be deemed to have been duly given if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), facsimile transmission, or sent by courier to the address or addresses specified below for the relevant Person:
     
 
  If to Buyer, to:
 
   
 
  Smart Hydrogen Inc.
 
  c/o ZAO Interros Holding Company
 
  9 Bolshaya Yakimanka Street
 
  Moscow 119180, Russia
 
  Attention: Marianna Zakharova
 
  Facsimile: +7 495 785 6362
 
   
 
  with a copy (which shall not constitute notice) to:
 
   
 
  Baker Botts L.L.P.
 
  The Warner
 
  1299 Pennsylvania Avenue, N.W.
 
  Washington, DC 20004-2400
 
  Attention: Gregory J. Golden
 
  Facsimile: (202) 585-1025
 
   
 
  if to Seller, to:
 
   
 
  DTE Energy Foundation
 
  2000 2nd Avenue, 1046 WCB
 
  Detroit, MI 48226
 
  Attention: Nick A. Khouri, Treasurer
 
  Facsimile: (313) 235-0285
 
   
 
  with a copy (which shall not constitute notice) to:
 
   
 
  Richard Harden
 
  Hunton & Williams LLP

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  200 Park Avenue
 
  New York, NY 10166
 
  Facsimile: (212) 309-1100
or to such other mailing address or facsimile number as a Party may, from time to time, designate in a written notice given in a like manner. Notice in person or by courier shall be deemed delivered upon actual receipt. Notice given by facsimile shall be deemed delivered on the day the sender receives facsimile confirmation that such notice was received at the facsimile number of the addressee. Notice given by mail as set out above shall be deemed to be delivered on the seventh Business Day following deposit in the U.S. mail.
          11.4 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement.
          11.5 Entire Agreement. This Agreement and the Seller Voting Agreement embody the entire agreement and understanding of the Parties in respect of the DTE Transaction. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or therein. This Agreement and the Seller Voting Agreement supersede all prior agreements and understandings between the Parties with respect to DTE Transaction.
          11.6 Governing Law; Venue; Service of Process. This Agreement shall be governed and construed in accordance with the internal laws of the State of New York, without giving effect to the principles of conflicts of law thereof that would require the application of another state’s law. Each Party consents to the non-exclusive jurisdiction of the federal courts located within the State of New York for any action, suit, or proceeding arising out of or relating to this Agreement. Each Party hereby waives any objection to the laying of venue of any such action, suit, or proceeding in the federal courts located within the State of New York and hereby further waives and agrees not to plead or claim in such court that any such action, suit, or proceeding brought in such court has been brought in an inconvenient forum. Each Party further agrees that service of any process, summons, notice, or document by U.S. registered mail (with respect to any address in the United States) or by a recognized international express courier service, including, without limitation, International Federal Express (with respect to any address outside of the United States) to such Party’s then current address for notice under Section 11.3 shall be effective service of process for any action, suit, or proceeding brought against it in such court. Each Party agrees that its submission to jurisdiction and its consent to service of process in the manner described above is made for the express benefit of the other Party.
          11.7 Assignment; Successors and Assigns; No Third Party Beneficiaries. Neither this Agreement nor any of the rights, benefits or obligations hereunder may be assigned or delegated by either Party (whether by operation of law or otherwise) without the prior written consent of the other Party. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the Parties or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.

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          11.8 Amendment. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the Parties.
          11.9 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Applicable Laws or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transaction is not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transaction is consummated as originally contemplated to the greatest extent possible.
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     IN WITNESS WHEREOF, each of the Parties has executed this Agreement or caused this Agreement to be duly executed on its behalf by its officer thereunto duly authorized, in each such case, as of the day and year first above written.
         
  DTE ENERGY FOUNDATION
 
 
  By:   /s/ Karla Hall    
    Karla Hall   
    Vice President and Secretary   
 
  SMART HYDROGEN INC.
 
 
  By:   /s/ Sergey Polikarpov    
    Sergey Polikarpov   
    Director   
 
[Signature Page to Foundation Stock Purchase Agreement]

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EXHIBIT A
FORM OF
STOCK TRANSFER POWER
     FOR VALUE RECEIVED, as of the date set forth below, the undersigned hereby sells, assigns, transfers, and conveys unto Smart Hydrogen Inc., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Smart Hydrogen”), [         (          )] shares of the common stock, $0.01 par value per share, of Plug Power Inc. (the “Company”), represented in the aggregate by Certificate Numbers [         ], and hereby irrevocably constitutes and appoints ________ as attorney to transfer the said shares on the books of the Company with full power of substitution in the premises.
         
  DTE ENERGY FOUNDATION
 
 
  By:      
    Name:      
    Title:      
    Date      
 

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EX-99.E 6 h35166exv99we.htm VOTING AGREEMENT AND IRREVOCABLE PROXY exv99we
 

EXHIBIT E
VOTING AGREEMENT AND IRREVOCABLE PROXY
     This VOTING AGREEMENT AND IRREVOCABLE PROXY (this “Agreement”), dated as of April 10, 2006, is made by and between DTE Energy Foundation, a Michigan non-profit corporation (“Seller”) and Smart Hydrogen Inc., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Buyer”). Each of Seller and Buyer is sometimes referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
     WHEREAS, Buyer and Plug Power Inc., a Delaware corporation (the “Company”), are parties to that certain Stock Purchase Agreement, substantially in form as attached hereto as Exhibit A (the “Company Purchase Agreement”), whereby, among other things, the Company has agreed to issue, and Buyer has agreed to purchase, certain shares of preferred stock of the Company and to execute certain other agreements and consummate certain other transactions in connection therewith; and
     WHEREAS, Seller is the beneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act) of 1,825,000 shares (the “Sale Shares”) (of the common stock, par value $0.01 per share, of the Company (the “Common Stock”); and
     WHEREAS, in connection with that certain Stock Purchase Agreement, of even date herewith, by and between Seller and Buyer (the “Foundation Purchase Agreement”), Seller has agreed to sell, and Buyer has agreed to purchase, the Sale Shares on the terms and conditions set forth therein;
AGREEMENT
     NOW, THEREFORE, in consideration of the promises and the representations, warranties, covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
     Section 1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings:
     “Amendment Notice” shall have the meaning specified in Section 6.1 of this Agreement.
     “Applicable Laws” means all applicable laws, statutes, ordinances, orders, rules, regulations, policies, or guidelines promulgated, or judgments, decisions, or orders entered, by any Governmental Authority.
     “Business Day” means any day that is not a Saturday, a Sunday, or other day on which banks are required or authorized by law to be closed in the City of New York, NY.

 


 

     “Buyer” shall have the meaning specified in the preamble to this Agreement.
     “Common Stock” shall have the meaning specified in the recitals to this Agreement.
     “Company” shall have the meaning specified in the recitals to this Agreement.
     “Company Purchase Agreement” shall have the meaning specified in the recitals to this Agreement.
     “Company Transaction” shall mean, collectively, all of the transactions contemplated by the Company Purchase Agreement, including without limitation the sale and issuance of Class B Capital Stock, a series of preferred stock, by the Company to Buyer.
     “Contract”, when used with respect to any Person, means any note, bond, indenture, mortgage, deed of trust, lease, franchise, permit, authorization, license, contract, instrument, employee benefit plan, or practice, or other agreement, obligation, commitment, or concession of any nature to which such Person is a party, by which such Person or any of its assets or properties is bound or affected, or pursuant to which such Person is entitled to any rights or benefits.
     “DTE Closing” shall mean the consummation of the DTE Transaction in accordance with the terms and conditions of the Foundation Purchase Agreement.
     “DTE Transaction” shall mean, collectively, all of the transactions contemplated by the DTE Transaction Agreements.
     “DTE Transaction Agreements” shall mean this Agreement, the Foundation Purchase Agreement, the DTE Voting Agreement, and the Lock-Up Agreement.
     “DTE Voting Agreement” shall mean that certain Voting Agreement And Irrevocable Proxy, of even date herewith, by and among DTE Energy Company, a Michigan corporation, DTE Energy Ventures Inc., a Michigan corporation, and Buyer.
     “Exchange Act” means the Securities Exchange Act of 1934, as amended.
     “Foundation Purchase Agreement” shall have the meaning specified in the recitals to this Agreement.
     “Governmental Authority” shall mean any federal, state, local, or foreign government, governmental, regulatory, or administrative authority, agency, or commission or any court, tribunal, or judicial, or arbitral body.
     “Lien” shall mean any encumbrance, lien (statutory or otherwise), pledge, charge, claim, security interest, mortgage, pledge, hypothecation, charge, claim, option, right to acquire, adverse interest, assignment, deposit arrangement, restriction, purchase agreement, voting agreement, standstill agreement, restriction on transfer (other than restrictions upon transfer under the Securities Act or the State Acts), or other encumbrance of any nature whatsoever, whether consensual, statutory, or otherwise.

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     “Lock-Up Agreement” shall mean that certain Lock-Up Letter Agreement, of even date herewith, by and among DTE, DTE Ventures, and the Company.
     “Person” shall mean a person, corporation, partnership, limited liability company, joint venture, trust, or other entity or organization.
     “Sale Shares” shall have the meaning specified in the recitals to this Agreement.
     “Securities Act” shall have the meaning specified in Section 3.4 of this Agreement.
     “Seller” shall have the meaning specified in the preamble to this Agreement.
     “Shares” shall mean, collectively, all of the Sale Shares, including all shares of the Company’s capital stock acquired by Seller after the date hereof.
     “State Acts” shall have the meaning specified in Section 3.4 of this Agreement.
     Section 1.2 Rules of Construction
     (a) Unless the context otherwise requires, as used in this Agreement (i) a term has the meaning ascribed to it; (ii) “or” is not exclusive; (iii) “including” means “including without limitation;” (iv) words in the singular include the plural and vice versa; (v) words applicable to one gender shall be construed to apply to each gender; (vi) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (vii) the terms “Article” and “Section” refer to the specified Article or Section of this Agreement; and (viii) the descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
     (b) A reference to any Person includes such Person’s successors and permitted assigns.
ARTICLE II
COVENANTS OF THE SELLER
     Section 2.1 Agreement to Vote. At any meeting of the stockholders of the Company held prior to the Termination Date, however called, and at every adjournment or postponement thereof prior to the Termination Date, Seller shall vote or cause to be voted all of its Shares (A) in favor of (i) approval of the Company Transaction and (ii) any actions required in furtherance of the Company Transaction; and (B) against (i) any proposal for action or agreement that is likely to result in a breach of any covenant, representation, or warranty or any other obligation or agreement of the Company under the Company Purchase Agreement or which is likely to result in any of the conditions to the obligations of Buyer or the Company under the Company Purchase Agreement not being fulfilled or (ii) any other action which would impede, interfere with, delay, postpone, or materially affect the Company Transaction or the likelihood of the Company Transactions being consummated; provided, however, that no such vote shall be required by Seller if such vote would result in a violation by Seller of any Applicable Laws.

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     Section 2.2 Irrevocable Proxy; Acknowledgements.
     (a) In order to better effect the provisions of Section 2.1 hereof, Seller hereby irrevocably grants to and appoints Buyer, and any individual(s) designated in writing by Buyer, as Seller’s proxy and attorney-in-fact (with full power of substitution), for and in Seller’s name, place, and stead, to vote all of the Shares held by Seller or any Affiliate thereof at any meeting of the stockholders of the Company held prior to the Termination Date, however called, and at every adjournment or postponement thereof prior to the Termination Date in accordance with the terms of Section 2.1 hereof.
     (b) Seller acknowledges that:
     (i) Buyer and the Company are relying on Seller’s execution and delivery of this Agreement in connection with the execution and delivery of the Company Purchase Agreement and other actions necessary for the consummation of the Company Transaction;
     (ii) the irrevocable proxy granted hereby is given in connection with the DTE Transaction, and that such irrevocable proxy is given to secure the performance of the duties of the Seller under this Agreement and the Foundation Purchase Agreement;
     (iii) the irrevocable proxy granted hereby is coupled with an interest and is irrevocable to the full extent permitted by Applicable Laws, including Section 212(c) of the General Corporation Law of the State of Delaware, as amended, and shall not be revoked or terminated by any act of Seller, by lack of appropriate power, or Governmental Authority, or by the occurrence of any other event or events, except as provided in this Agreement; and
     (iv) the performance of this Agreement is intended to benefit Buyer, the Company, and their respective Affiliates.
     Section 2.3 Proxies and Voting Agreements. Seller hereby revokes any and all previous proxies (other than the proxy granted pursuant to Section 2.2) granted with respect to its Shares. Prior to the Termination Date, Seller agrees not to, directly or indirectly, (a) grant any proxies or powers of attorney (except pursuant to Section 2.2 hereof) with respect to its Shares, (b) deposit any of its Shares into any voting trust, or (c) enter into any other voting agreement or understanding with respect to its Shares. Notwithstanding anything stated to the contrary, the foregoing shall not prohibit Seller from granting proxies in connection with the annual meeting of the Company’s stockholders with respect to voting on matters other than the matters that are the subject matter of this Agreement.
     Section 2.4 No Transfer of Shares. Prior to the Termination Date, Seller shall not sell, transfer, assign, convey, or otherwise dispose of, directly or indirectly, any of its Shares.
     Section 2.5 No Ownership Interest in Shares. Except as otherwise provided herein, all rights, ownership and economic benefits of and relating to the Shares shall remain vested in and

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belong to Seller, and Buyer shall have no authority to exercise any power or authority to direct the voting of any of the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
     Seller hereby represents and warrants to Buyer that:
     Section 3.1 Organization, Good Standing, and Qualification. Seller is a non-profit corporation duly organized and validly existing, and in good standing under the laws of the State of Michigan.
     Section 3.2 Authority and Authorization. Seller has the requisite corporate power and authority to execute, deliver, and perform its obligations under each DTE Transaction Agreement to which it is a party, and to consummate the transactions contemplated thereby. The execution, delivery, and performance by Seller of each DTE Transaction Agreement to which it is a party, and the consummation of all transactions contemplated thereby, have been duly authorized by all necessary corporate action on the part of Seller. Each DTE Transaction Agreement to which Seller is a party has been duly and validly executed and delivered by Seller and constitutes a legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
     Section 3.3 No Conflicts. The execution, delivery, and performance of this Agreement and the Foundation Purchase Agreement do not, and the consummation of the transactions contemplated thereby shall not, (i) conflict with, or result in the breach of, any provision of Seller’s articles of incorporation, by-laws, or any other similar governing or organizational document; (ii) violate any Applicable Laws with respect to Seller or any of its properties or assets; or (iii) conflict with or result in any violation or breach of or default (with or without notice or lapse of time, or both) under, or the creation of a Lien on any assets pursuant to (any such conflict, violation, breach, default, or creation, a “Violation”) any Contract to which Seller is a party, by which Seller or any of its assets or properties is bound or affected, or pursuant to which Seller is entitled to any rights or benefits.
     Section 3.4 No Consents or Approvals. Except for any filings or approvals that may be required by the Securities Act of 1933, as amended (the “Securities Act”), or under the securities laws of any state (the “State Acts”), no waiver, approval, authorization, order, license, permit, franchise or consent of or registration, declaration, qualification or filing with any Governmental Authority or any other Person is required to be obtained or made by Seller in connection with the execution, delivery, and performance by Seller of this Agreement or the Foundation Purchase Agreement.
     Section 3.5 The Shares. As of the date hereof, the Shares consist of the Sale Shares. Seller has the sole voting power, without restrictions, with respect to all of the Shares. None of the Shares is subject to any voting trust or other agreement, arrangement, or restriction with

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respect to the voting, and no proxy, power of attorney, or other authorization has been granted with respect to Shares, other than as contemplated by Article II hereof.
     Section 3.6 Other Company Securities. The Shares are the only shares of capital stock of the Company owned beneficially or of record by Seller, and Seller does not have any option to purchase or right to subscribe for or otherwise acquire any securities of the Company and has no other interest in or voting rights with respect to any other securities of the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
     Buyer hereby represents and warrants to Seller that:
     Section 4.1 Organization. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the British Virgin Islands.
     Section 4.2 Authority and Authorization. Buyer has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Buyer, and the consummation of all transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Buyer. This Agreement has been duly and validly executed and delivered by Buyer and constitutes a legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
     Section 4.3 No Conflicts. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby shall not, (i) conflict with, or result in the breach of, any provision of Buyer’s governing or organizational documents; (ii) violate any Applicable Laws applicable to Buyer or any of its properties or assets; or (iii) constitute a Violation with respect to any Contract to which Buyer is a party, by which Buyer or any of its assets or properties is bound or affected, or pursuant to which Buyer is entitled to any rights or benefits.
     Section 4.4 No Consents or Approvals. Except for any filings or approvals that may be required by the Securities Act or the State Acts, no waiver, approval, authorization, order, license, permit, franchise or consent of or registration, declaration, qualification or filing with any Governmental Authority or any other Person is required to be obtained or made by Buyer in connection with the execution, delivery, and performance by Buyer of this Agreement or the Foundation Purchase Agreement.
     Section 4.5 No Company Information. Buyer has received no information with respect to the Company from Seller.

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ARTICLE V
TERMINATION
     Section 5.1 Termination.
     (a) Automatic Termination. This Agreement shall automatically terminate, without any action by any Party or other Person, upon the first to occur of (i) the termination of the Foundation Purchase Agreement in accordance with the terms thereof; or (ii) the day following the close of the meeting of stockholders of the Company to consider the Company Transaction.
     (b) Optional Termination. This Agreement may be terminated at any time prior to the DTE Closing: (i) by mutual written consent of each of the Parties; or (ii) by Seller, upon the good-faith determination by Seller that there has been a material amendment to the Company Purchase Agreement; provided, however, that (x) Seller shall not exercise its termination right under this clause (ii) of this Section 5.1(b) unreasonably and (y) with respect to any amendment of the Company Purchase Agreement identified by Buyer in an Amendment Notice, Seller may only exercise its termination right under this clause (ii) of this Section 5.1(b) within 10 Business Days after its receipt of such Amendment Notice.
     (c) Termination Date. The date in which this Agreement terminates under this Section 5.1 shall constitute the “Termination Date” for purposes of this Agreement.
     Section 5.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 5.1, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any Party or its directors, officers, employees, partners, managers, members, or stockholders, and all rights and obligations of each Party shall cease; provided, however, that nothing contained in this Section 5.2 shall relieve any Party from liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement.
ARTICLE VI
MISCELLANEOUS
     Section 6.1 Amendment Notice. In the event that Buyer and the Company shall execute an amendment to the Company Purchase Agreement in accordance with the terms thereof, Buyer shall provide Seller with written notice thereof as soon as reasonably practicable thereafter, and such notice shall include a copy of such amendment (an “Amendment Notice”).
     Section 6.2 Acknowledgement. Each Party hereby acknowledges the adequacy of the consideration provided under this Agreement and waives any right such Party may have to challenge the enforceability of this Agreement for lack of adequate consideration.
     Section 6.3 Specific Performance. Seller agrees that Buyer would be irreparably damaged if for any reason Seller fails to perform any of its obligations under this Agreement, and that Buyer would not have an adequate remedy at law for money damages in such event. Accordingly, Buyer shall be entitled to seek specific performance and injunctive and other equitable relief to enforce the performance of this Agreement. This provision is without

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prejudice to any other rights that Buyer may have against Seller, or that Seller may have against it, for any failure to perform its obligations under this Agreement.
     Section 6.4 Notices. All notices or communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), facsimile transmission, or sent by courier to the address or addresses specified below for the relevant Person:
If to Buyer, to:
Smart Hydrogen Inc.
c/o ZAO Interros Holding Company
9 Bolshaya Yakimanka Street
Moscow 119180, Russia
Attention: Marianna Zakharova
Facsimile: +7 495 785 6362
with a copy (which shall not constitute notice) to:
Baker Botts L.L.P.
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Attention: Gregory J. Golden
Facsimile: (202) 585-1025
if to Seller, to:
DTE Energy Foundation
2000 2nd Avenue, 1046 WCB
Detroit, MI 48226
Attention: Nick A. Khouri, Treasurer
Facsimile: (313) 235-0285
with a copy (which shall not constitute notice) to:
Richard Harden
Hunton & Williams LLP
200 Park Avenue
New York, NY 10166
Facsimile: (212) 309-1100
or to such other mailing address or facsimile number as a Party may, from time to time, designate in a written notice given in a like manner. Notice in person or by courier shall be deemed delivered upon actual receipt. Notice given by facsimile shall be deemed delivered on the day the sender receives facsimile confirmation that such notice was received at the facsimile number of the addressee. Notice given by mail as set out above shall be deemed to be delivered on the seventh Business Day following deposit in the U.S. mail.

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     Section 6.5 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement.
     Section 6.6 Entire Agreement. This Agreement and the Foundation Purchase Agreement embody the entire agreement and understanding of the Parties in respect of the DTE Transaction. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or therein. This Agreement and the Foundation Purchase Agreement supersede all prior agreements and understandings between the Parties with respect to DTE Transaction.
     Section 6.7 Governing Law; Venue; Service of Process. This Agreement shall be governed and construed in accordance with the internal laws of the State of New York, without giving effect to the principles of conflicts of law thereof that would require the application of another state’s law. Each Party consents to the non-exclusive jurisdiction of the federal courts located within the State of New York for any action, suit, or proceeding arising out of or relating to this Agreement. Each Party hereby waives any objection to the laying of venue of any such action, suit, or proceeding in the federal courts located within the State of New York and hereby further waives and agrees not to plead or claim in such court that any such action, suit, or proceeding brought in such court has been brought in an inconvenient forum. Each Party further agrees that service of any process, summons, notice, or document by U.S. registered mail (with respect to any address in the United States) or by a recognized international express courier service, including, without limitation, International Federal Express (with respect to any address outside of the United States) to such Party’s then current address for notice under Section 6.4 shall be effective service of process for any action, suit, or proceeding brought against it in such court. Each Party agrees that its submission to jurisdiction and its consent to service of process in the manner described above is made for the express benefit of the other Parties.
     Section 6.8 Assignment; Successors and Assigns; No Third Party Beneficiaries. Neither this Agreement nor any of the rights, benefits or obligations hereunder may be assigned or delegated by any Party (whether by operation of law or otherwise) without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the Parties or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
     Section 6.9 Amendment. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the Parties.
     Section 6.10 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Applicable Laws or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transaction is not affected in any manner materially adverse to any of the Parties. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in

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order that the Transaction is consummated as originally contemplated to the greatest extent possible.
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     IN WITNESS WHEREOF, each of the Parties has executed this Agreement or caused this Agreement to be duly executed on its behalf by its officer thereunto duly authorized, in each such case, as of the day and year first above written.
         
  SMART HYDROGEN INC.
 
 
  By:   /s/ Sergey Polikarpov    
    Sergey Polikarpov   
    Director   
 
  DTE ENERGY FOUNDATION
 
 
  By:   /s/ Karla Hall    
    Karla Hall   
    Vice President and Secretary   
 
[Signature Page to Foundation Voting Agreement]

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EXHIBIT A
FORM OF STOCK PURCHASE AGREEMENT

-A-1-

EX-99.F 7 h35166exv99wf.htm VOTING AGREEMENT AND IRREVOCABLE PROXY exv99wf
 

EXHIBIT F
VOTING AGREEMENT AND IRREVOCABLE PROXY
     This VOTING AGREEMENT AND IRREVOCABLE PROXY (this “Agreement”), dated as of April 10, 2006, is made by and among DTE Energy Company, a Michigan corporation (“DTE”), DTE Energy Ventures Inc., a Michigan corporation and wholly-owned subsidiary of DTE (“DTE Ventures” and collectively with DTE, the “DTE Parties”), and Smart Hydrogen Inc., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Buyer”). Each of DTE, DTE Ventures, and Buyer is sometimes referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
     WHEREAS, Buyer and Plug Power Inc., a Delaware corporation (the “Company”), are parties to that certain Stock Purchase Agreement, substantially in form as attached hereto as Exhibit A (the “Company Purchase Agreement”), whereby, among other things, the Company has agreed to issue, and Buyer has agreed to purchase, certain shares of preferred stock of the Company and to execute certain other agreements and consummate certain other transactions in connection therewith; and
     WHEREAS, in connection with the Company Purchase Agreement, the Company has requested that DTE and DTE Ventures enter into this Agreement and that certain Lock-Up Letter Agreement of even date herewith (the “Lock-Up Agreement”); and
     WHEREAS, DTE is the beneficial owner (as determined pursuant to Rule 13d-3 under the Exchange Act) of 8,816,227 shares of the common stock, par value $0.01 per share, of the Company (the “Common Stock”); and
     WHEREAS, each of DTE and DTE Ventures, as a stockholder of the Company, has determined that the Company Transaction (as hereinafter defined) will benefit the Company and that it is therefore advisable and in the best interests of DTE’s stockholders to enter into this Agreement and the Lock-Up Agreement;
AGREEMENT
     NOW, THEREFORE, in consideration of the promises and the representations, warranties, covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
     Section 1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings:
     “Amendment Notice” shall have the meaning specified in Section 6.1 of this Agreement.

 


 

     “Applicable Laws” means all applicable laws, statutes, ordinances, orders, rules, regulations, policies, or guidelines promulgated, or judgments, decisions or orders entered, by any Governmental Authority.
     “Business Day” means any day that is not a Saturday, a Sunday, or other day on which banks are required or authorized by law to be closed in the City of New York, NY.
     “Buyer” shall have the meaning specified in the preamble to this Agreement.
     “Common Stock” shall have the meaning specified in the recitals to this Agreement.
     “Company” shall have the meaning specified in the recitals to this Agreement.
     “Company Purchase Agreement” shall have the meaning specified in the recitals to this Agreement.
     “Company Transaction” shall mean, collectively, all of the transactions contemplated by the Company Purchase Agreement, including without limitation the sale and issuance of Class B Capital Stock, a series of preferred stock, by the Company to Buyer.
     “Contract”, when used with respect to any Person, means any note, bond, indenture, mortgage, deed of trust, lease, franchise, permit, authorization, license, contract, instrument, employee benefit plan, or practice, or other agreement, obligation, commitment, or concession of any nature to which such Person is a party, by which such Person or any of its assets or properties is bound or affected, or pursuant to which such Person is entitled to any rights or benefits.
     “DTE” shall have the meaning specified in the preamble to this Agreement.
     “DTE Closing” shall mean the consummation of the DTE Transaction in accordance with the terms and conditions of the Foundation Purchase Agreement.
     “DTE Parties” shall have the meaning specified in the preamble to this Agreement.
     “DTE Transaction” shall mean, collectively, all of the transactions contemplated by the DTE Transaction Agreements.
     “DTE Transaction Agreements” shall mean this Agreement, the Foundation Purchase Agreement, the Seller Voting Agreement, and the Lock-Up Agreement.
     “DTE Ventures” shall have the meaning specified in the preamble to this Agreement.
     “Exchange Act” means the Securities Exchange Act of 1934, as amended.
     “Foundation Purchase Agreement” shall mean that certain Stock Purchase Agreement, of even date herewith, by and between Seller and Buyer, whereby, among other things, Seller has agreed to sell to Buyer, and Buyer has agreed to purchase from Seller, the Sale Shares in accordance with the terms thereof.

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     “Governmental Authority” shall mean any federal, state, local, or foreign government, governmental, regulatory, or administrative authority, agency, or commission or any court, tribunal, or judicial, or arbitral body.
     “Lien” shall mean any encumbrance, lien (statutory or otherwise), pledge, charge, claim, security interest, mortgage, pledge, hypothecation, charge, claim, option, right to acquire, adverse interest, assignment, deposit arrangement, restriction, purchase agreement, voting agreement, standstill agreement, restriction on transfer (other than restrictions upon transfer under the Securities Act or the State Acts), or other encumbrance of any nature whatsoever, whether consensual, statutory, or otherwise.
     “Lock-Up Agreement” shall have the meaning specified in the recitals to this Agreement.
     “Person” shall mean a person, corporation, partnership, limited liability company, joint venture, trust, or other entity or organization.
     “Sale Shares” shall mean the 1,825,000 shares of Common Stock to be sold by Seller to Buyer pursuant to the Foundation Purchase Agreement.
     “Securities Act” shall have the meaning specified in Section 3.4 of this Agreement.
     “Seller” shall mean DTE Energy Foundation, a Michigan non-profit corporation.
     “Seller Voting Agreement” shall mean that certain Voting Agreement And Irrevocable Proxy, of even date herewith, by and between Seller and Buyer.
     “Shares” shall mean, with respect to DTE or DTE Ventures, all shares of the capital stock of the Company beneficially owned (as determined pursuant to Rule 13d-3 of the Exchange Act) by such Person, including all shares of the Company’s capital stock acquired by such Person after the date hereof.
     “State Acts” shall have the meaning specified in Section 3.4 of this Agreement.
     Section 1.2 Rules of Construction
     (a) Unless the context otherwise requires, as used in this Agreement (i) a term has the meaning ascribed to it; (ii) “or” is not exclusive; (iii) “including” means “including without limitation;” (iv) words in the singular include the plural and vice versa; (v) words applicable to one gender shall be construed to apply to each gender; (vi) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (vii) the terms “Article” and “Section” refer to the specified Article or Section of this Agreement; and (viii) the descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
     (b) A reference to any Person includes such Person’s successors and permitted assigns.

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ARTICLE II
COVENANTS OF THE DTE PARTIES
     Section 2.1 Agreement to Vote. At any meeting of the stockholders of the Company held prior to the Termination Date, however called, and at every adjournment or postponement thereof prior to the Termination Date, each DTE Party shall vote or cause to be voted all of its Shares (A) in favor of (i) approval of the Company Transaction and (ii) any actions required in furtherance of the Company Transaction; and (B) against (i) any proposal for action or agreement that is likely to result in a breach of any covenant, representation, or warranty or any other obligation or agreement of the Company under the Company Purchase Agreement or which is likely to result in any of the conditions to the obligations of Buyer or the Company under the Company Purchase Agreement not being fulfilled or (ii) any other action which would impede, interfere with, delay, postpone, or materially affect the Company Transaction or the likelihood of the Company Transactions being consummated; provided, however, that no such vote shall be required by a DTE Party if such vote would result in a violation by such DTE Party of any Applicable Laws.
     Section 2.2 Irrevocable Proxy; Acknowledgements.
     (a) In order to better effect the provisions of Section 2.1 hereof, each DTE Party hereby irrevocably grants to and appoints Buyer, and any individual(s) designated in writing by Buyer, as such DTE Party’s proxy and attorney-in-fact (with full power of substitution), for and in such DTE Party’s name, place, and stead, to vote all of the Shares held by such DTE Party or any Affiliate thereof at any meeting of the stockholders of the Company held prior to the Termination Date, however called, and at every adjournment or postponement thereof prior to the Termination Date in accordance with the terms of Section 2.1 hereof.
     (b) Each DTE Party acknowledges that:
     (i) Buyer and the Company are relying on the DTE Parties’ execution and delivery of this Agreement in connection with the execution and delivery of the Company Purchase Agreement and other actions necessary for the consummation of the Company Transaction;
     (ii) the irrevocable proxy granted hereby is given in connection with the DTE Transaction, and that such irrevocable proxy is given to secure the performance of the duties of the DTE Parties under the DTE Transaction Agreements to which each DTE Party is a party;
     (iii) the irrevocable proxy granted hereby is coupled with an interest and is irrevocable to the full extent permitted by Applicable Laws, including Section 212(c) of the General Corporation Law of the State of Delaware, as amended, and shall not be revoked or terminated by any act of DTE Ventures or DTE, by lack of appropriate power, or Governmental Authority, or by the occurrence of any other event or events, except as provided in this Agreement; and

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     (iv) the performance of this Agreement is intended to benefit Buyer, the Company, and their respective Affiliates.
     Section 2.3 Proxies and Voting Agreements. Each DTE Party hereby revokes any and all previous proxies (other than the proxy granted pursuant to Section 2.2) granted with respect to its Shares. Prior to the Termination Date, each DTE Party agrees not to, directly or indirectly, with respect to its Shares (a) grant any proxies or powers of attorney (except pursuant to Section 2.2 hereof) with respect to its Shares, (b) deposit any of its Shares into any voting trust, or (c) enter into any other voting agreement or understanding with respect to its Shares. Notwithstanding anything stated to the contrary, the foregoing shall not prohibit either DTE Party from granting proxies in connection with the annual meeting of the Company’s stockholders with respect to voting on matters other than the matters that are the subject matter of this Agreement.
     Section 2.4 No Transfer of Shares. Prior to the Termination Date, neither DTE Party shall sell, transfer, assign, convey, or otherwise dispose of, directly or indirectly, any of its Shares.
     Section 2.5 No Ownership Interest in Shares. Except as otherwise provided herein, all rights, ownership and economic benefits of and relating to the Shares shall remain vested in and belong to DTE and DTE Ventures, as their interests may appear, and Buyer shall have no authority to exercise any power or authority to direct the voting of any of the Shares.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE DTE PARTIES
     Each of DTE and DTE Ventures hereby represents and warrants to Buyer that:
     Section 3.1 Organization, Good Standing, and Qualification. DTE is a corporation duly organized and validly existing, and in good standing under the laws of the State of Michigan. DTE Ventures is a corporation duly organized and validly existing, and in good standing under the laws of the State of Michigan.
     Section 3.2 Authority and Authorization. Each DTE Party has the requisite corporate power and authority to execute, deliver, and perform its obligations under each DTE Transaction Agreement to which it is a party, and to consummate the transactions contemplated thereby. The execution, delivery, and performance by each DTE Party of each DTE Transaction Agreement to which it is a party, and the consummation of all transactions contemplated thereby, have been duly authorized by all necessary corporate action on the part of each DTE Party. Each DTE Transaction Agreement to which a DTE Party is a party has been duly and validly executed and delivered by each DTE Party and constitutes a legal, valid, and binding obligation of such DTE Party, enforceable against each DTE Party in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.

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     Section 3.3 No Conflicts. The execution, delivery, and performance of the DTE Transaction Agreements to which each of the DTE Parties is a party do not, and the consummation of the transactions contemplated thereby shall not, (i) conflict with, or result in the breach of, any provision of either DTE Party’s certificate of incorporation or by-laws, or any other similar governing or organizational document of either DTE Party; (ii) violate any Applicable Laws with respect to either DTE Party or any of its properties or assets; or (iii) conflict with or result in any violation or breach of or default (with or without notice or lapse of time, or both) under, or the creation of a Lien on any assets pursuant to (any such conflict, violation, breach, default, or creation, a “Violation”) any Contract to which either DTE Party is a party, by which either DTE Party or any of its assets or properties is bound or affected, or pursuant to which either DTE Party is entitled to any rights or benefits.
     Section 3.4 No Consents or Approvals. Except for any filings or approvals that may be required by the Securities Act of 1933, as amended (the “Securities Act”), or under the securities laws of any state (the “State Acts”), no waiver, approval, authorization, order, license, permit, franchise or consent of or registration, declaration, qualification, or filing with any Governmental Authority or any other Person is required to be obtained or made by either DTE Party in connection with the execution, delivery, and performance by the DTE Parties of this Agreement.
     Section 3.5 The Shares. As of the date hereof, the Shares consist of 8,816,227 shares of Common Stock beneficially owned (as determined pursuant to Rule 13d-3 under the Exchange Act) by DTE, of which 11,764 are held of record by DTE (or by a nominee or custodian for the benefit of DTE) and 8,804,463 are held of record by DTE Ventures (or by a nominee or custodian for the benefit of DTE Ventures). DTE and DTE Ventures, as their interests may appear, have the sole voting power, without restrictions, with respect to all of the Shares. None of the Shares is subject to any voting trust or other agreement, arrangement, or restriction with respect to the voting, and no proxy, power of attorney, or other authorization has been granted with respect to Shares, other than as contemplated by Article II hereof.
     Section 3.6 Other Company Securities. The Shares are the only shares of capital stock of the Company owned beneficially or of record by DTE, and, except as set forth in Schedule 3.6 hereto, DTE does not have any option to purchase or right to subscribe for or otherwise acquire any securities of the Company and has no other interest in or voting rights with respect to any other securities of the Company.
     Section 3.7 No Interest in Sale Shares. DTE reasonably does not believe that it has any beneficial interest in the Sale Shares.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
     Buyer hereby represents and warrants to each of DTE and DTE Ventures that:
     Section 4.1 Organization. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the British Virgin Islands.

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     Section 4.2 Authority and Authorization. Buyer has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement, and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement by Buyer, and the consummation of all transactions contemplated hereby, have been duly authorized by all necessary corporate action on the part of Buyer. This Agreement has been duly and validly executed and delivered by Buyer and constitutes a legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
     Section 4.3 No Conflicts. The execution and delivery of this Agreement do not, and the consummation of the transactions contemplated hereby shall not, (i) conflict with, or result in the breach of, any provision of Buyer’s governing or organizational documents; (ii) violate any Applicable Laws applicable to Buyer or any of its properties or assets; or (iii) constitute a Violation with respect to any Contract to which Buyer is a party, by which Buyer or any of its assets or properties is bound or affected, or pursuant to which Buyer is entitled to any rights or benefits.
     Section 4.4 No Consents or Approvals. Except for any filings or approvals that may be required by the Securities Act or the State Acts, no waiver, approval, authorization, order, license, permit, franchise or consent of or registration, declaration, qualification or filing with any Governmental Authority or any other Person is required to be obtained or made by Buyer in connection with the execution, delivery, and performance by Buyer of this Agreement or the Seller Voting Agreement.
     Section 4.5 No Company Information. Buyer has received no information with respect to the Company from either DTE Party.
ARTICLE V
TERMINATION
     Section 5.1 Termination.
     (a) Automatic Termination. This Agreement shall automatically terminate, without any action by any Party or other Person, upon the first to occur of (i) the termination of the Foundation Purchase Agreement in accordance with the terms thereof; or (ii) the day following the close of the meeting of stockholders of the Company to consider the Company Transaction.
     (b) Optional Termination. This Agreement may be terminated at any time prior to the DTE Closing: (i) by mutual written consent of each of the Parties; or (ii) by DTE, upon the good-faith determination by DTE that there has been a material amendment to the Company Purchase Agreement; provided, however, that (x) DTE shall not exercise its termination right under this clause (ii) of this Section 5.1(b) unreasonably and (y) with respect to any amendment of the Company Purchase Agreement identified by Buyer in an Amendment Notice, DTE may only

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exercise its termination right under this clause (ii) of this Section 5.1(b) within 10 Business Days after its receipt of such Amendment Notice.
     (c) Termination Date. The date in which this Agreement terminates under this Section 5.1 shall constitute the “Termination Date” for purposes of this Agreement.
     Section 5.2 Effect of Termination. In the event of the termination of this Agreement pursuant to Section 5.1, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of any Party or its directors, officers, employees, partners, managers, members, or stockholders, and all rights and obligations of each Party shall cease; provided, however, that nothing contained in this Section 5.2 shall relieve any Party from liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement.
ARTICLE VI
MISCELLANEOUS
     Section 6.1 Amendment Notice. In the event that Buyer and the Company shall execute an amendment to the Company Purchase Agreement in accordance with the terms thereof, Buyer shall provide DTE with written notice thereof as soon as reasonably practicable thereafter, and such notice shall include a copy of such amendment (an “Amendment Notice”).
     Section 6.2 Certain Acknowledgements. Each Party hereby acknowledges the adequacy of the consideration provided under this Agreement and waives any right such Party may have to challenge the enforceability of this Agreement for lack of adequate consideration. Each Party hereby acknowledges that the term “Shares” shall not be deemed to include any shares of the Company’s capital stock beneficially owned by Seller.
     Section 6.3 Specific Performance. Each of DTE and DTE Ventures agrees that Buyer would be irreparably damaged if for any reason DTE or DTE Ventures fails to perform any of its obligations under this Agreement, and that Buyer would not have an adequate remedy at law for money damages in such event. Accordingly, Buyer shall be entitled to seek specific performance and injunctive and other equitable relief to enforce the performance of this Agreement by DTE and/or DTE Ventures, as applicable. This provision is without prejudice to any other rights that Buyer may have against either DTE or DTE Ventures, or that DTE or DTE Ventures may have against it, for any failure to perform its obligations under this Agreement.
     Section 6.4 Notices. All notices or communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given if delivered personally, mailed by registered or certified mail (postage prepaid, return receipt requested), facsimile transmission, or sent by courier to the address or addresses specified below for the relevant Person:
If to Buyer, to:
Smart Hydrogen Inc.
c/o ZAO Interros Holding Company
9 Bolshaya Yakimanka Street
Moscow 119180, Russia

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Attention: Marianna Zakharova
Facsimile: +7 495 785 6362
with a copy (which shall not constitute notice) to:
Baker Botts L.L.P.
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Attention: Gregory J. Golden
Facsimile: (202) 585-1025
if to DTE or DTE Ventures, to:
     
DTE Energy Company
2000 2nd Avenue, Suite 2400 WCB
Detroit, MI 48226
Attention:
  David E. Meador, Executive Vice President and
Chief Financial Officer
Facsimile: (313) 235-0549
with a copy (which shall not constitute notice) to:
Richard Harden
Hunton & Williams LLP
200 Park Avenue
New York, NY 10166
Facsimile: (212) 309-1100
or to such other mailing address or facsimile number as a Party may, from time to time, designate in a written notice given in a like manner. Notice in person or by courier shall be deemed delivered upon actual receipt. Notice given by facsimile shall be deemed delivered on the day the sender receives facsimile confirmation that such notice was received at the facsimile number of the addressee. Notice given by mail as set out above shall be deemed to be delivered on the seventh Business Day following deposit in the U.S. mail.
     Section 6.5 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same agreement.
     Section 6.6 Entire Agreement. This Agreement contains the entire agreement and understanding of the Parties in respect of the DTE Transaction. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or therein. This Agreement supersedes all prior agreements and understandings between or among the Parties with respect to DTE Transaction.
     Section 6.7 Governing Law; Venue; Service of Process. This Agreement shall be governed and construed in accordance with the internal laws of the State of New York, without giving effect to the principles of conflicts of law thereof that would require the application of

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another state’s law. Each Party consents to the non-exclusive jurisdiction of the federal courts located within the State of New York for any action, suit, or proceeding arising out of or relating to this Agreement. Each Party hereby waives any objection to the laying of venue of any such action, suit, or proceeding in the federal courts located within the State of New York and hereby further waives and agrees not to plead or claim in such court that any such action, suit, or proceeding brought in such court has been brought in an inconvenient forum. Each Party further agrees that service of any process, summons, notice, or document by U.S. registered mail (with respect to any address in the United States) or by a recognized international express courier service, including, without limitation, International Federal Express (with respect to any address outside of the United States) to such Party’s then current address for notice under Section 6.4 shall be effective service of process for any action, suit, or proceeding brought against it in such court. Each Party agrees that its submission to jurisdiction and its consent to service of process in the manner described above is made for the express benefit of the other Parties.
     Section 6.8 Assignment; Successors and Assigns; No Third Party Beneficiaries. Neither this Agreement nor any of the rights, benefits or obligations hereunder may be assigned or delegated by any Party (whether by operation of law or otherwise) without the prior written consent of the other Parties. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and permitted assigns. Nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the Parties or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
     Section 6.9 Amendment. This Agreement may not be modified, amended, altered or supplemented, except upon the execution and delivery of a written agreement executed by each of the Parties.
     Section 6.10 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Applicable Laws or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transaction is not affected in any manner materially adverse to any of the Parties. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transaction is consummated as originally contemplated to the greatest extent possible.
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     IN WITNESS WHEREOF, each of the Parties has executed this Agreement or caused this Agreement to be duly executed on its behalf by its officer thereunto duly authorized, in each such case, as of the day and year first above written.
         
  SMART HYDROGEN INC.
 
 
  By:   /s/ Sergey Polikarpov    
    Sergey Polikarpov   
    Director   
 
  DTE ENERGY COMPANY
 
 
  By:   /s/ David E. Meador    
    David E. Meador   
    Executive Vice President and Chief Financial Officer   
 
  DTE ENERGY VENTURES INC.
 
 
  By:   /s/ David E. Meador    
    David E. Meador   
    President   
 
[Signature Page to DTE and DTE Ventures Voting Agreement]

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EXHIBIT A
FORM OF STOCK PURCHASE AGREEMENT

A-1


 

SCHEDULE 3.6
PLUG OPTIONS
                                             
            Edison                
            Development   Tony   Larry   Robert   Vesting
Grant Date   Strike Price   Corporation   Earley   Graberding*   Buckler   Date
 
                                           
7/10/1997
  $ 1.00       200,000                             7/10/2000
7/16/1997
  $ 5.00       30,000                             7/16/2000
10/29/1999
  $ 15.00               15,000       15,000             10/29/2000
10/29/1999
  $ 15.00               10,000       10,000             10/29/2000
1/12/2000
  $ 56.88                       5,000             1/12/2001
5/24/2000
  $ 44.50               10,000       10,000             5/24/2001
5/16/2001
  $ 24.53               10,000       10,000             5/16/2002
5/16/2001
  $ 24.53                       5,000             5/16/2002
5/16/2002
  $ 10.23               10,000                     5/16/2003
5/22/2003
  $ 5.02               10,000                     5/22/2004
5/20/2004
  $ 7.50               12,000                     5/20/2005
6/1/2005
  $ 6.22               12,000                     6/1/2005
11/7/2005
  $ 5.76                               15,000     11/7/2005
* = Stock option grants prior to January 1, 2002

 

EX-99.G 8 h35166exv99wg.htm STOCK PURCHASE AGREEMENT exv99wg
 

Exhibit G
 
STOCK PURCHASE AGREEMENT
by and between
PLUG POWER INC.
and
SMART HYDROGEN INC.
Dated as of April 10, 2006
 

 


 

TABLE OF CONTENTS
         
    Page  
 
       
ARTICLE I DEFINITIONS AND INTERPRETATION
    1  
 
       
Section 1.01 Certain Defined Terms
    1  
Section 1.02 Rules of Construction; Absence of Presumption.
    8  
 
       
ARTICLE II PURCHASE AND SALE
    9  
 
       
Section 2.01 Issuance of Shares
    9  
Section 2.02 Payment of Class B Purchase Price
    9  
Section 2.03 Issuance of True-Up Shares
    9  
Section 2.04 Payment of True-Up Purchase Price
    9  
 
       
ARTICLE III THE CLOSING
    9  
 
       
Section 3.01 Closing Date
    9  
Section 3.02 Other Transaction Agreements
    10  
 
       
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY
    10  
 
       
Section 4.01 Organization
    10  
Section 4.02 Authorization of Agreement; Validity and Effect of Agreement
    10  
Section 4.03 Authorization of Other Transaction Agreements; Validity and Effect of Other Transaction Agreements
    10  
Section 4.04 Validity of the Shares, True-Up Shares, and Conversion Shares
    11  
Section 4.05 Authorization to File Certificate of Designations
    11  
Section 4.06 Governmental Consents
    11  
Section 4.07 No Conflict
    11  
Section 4.08 Capital Stock and Ownership of the Company
    12  
Section 4.09 SEC Filings
    12  
Section 4.10 Financial Statements
    13  
Section 4.11 Absence of Certain Changes or Events
    13  
Section 4.12 Proxy Statement Information
    13  
Section 4.13 State Takeover Statutes
    14  
Section 4.14 Fairness Opinion
    14  
Section 4.15 Approval By Company Board
    14  
Section 4.16 Stockholder Approval Required
    14  
Section 4.17 Brokers
    14  
 
       
ARTICLE V REPRESENTATIONS AND WARRANTIES OF BUYER
    14  
 
       
Section 5.01 Organization
    14  
Section 5.02 Authorization of Agreement; Validity and Effect of Agreement
    14  
Section 5.03 Authorization of Other Transaction Agreements; Validity and Effect of Other Transaction Agreements
    15  
Section 5.04 Governmental Consents
    15  
Section 5.05 No Conflict
    15  
Section 5.06 Investment; Experience; Accredited Investor.
    16  
Section 5.07 Restricted Securities
    16  

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Section 5.08 Financing
    16  
Section 5.09 Beneficial Ownership of Common Stock
    16  
Section 5.10 Proxy Statement Information
    16  
Section 5.11 Brokers
    17  
Section 5.12 Ownership and Control of Buyer
    17  
Section 5.13 Direct Competitor
    17  
 
       
ARTICLE VI ADDITIONAL COVENANTS
    17  
 
       
Section 6.01 HSR Filing
    17  
Section 6.02 Exon-Florio Filing
    18  
Section 6.03 NASDAQ Request
    18  
Section 6.04 Filing of Certificate of Designations
    18  
Section 6.05 Stockholder Meeting
    18  
Section 6.06 No Solicitation
    19  
Section 6.07 SEC Filings
    21  
Section 6.08 Public Announcements
    21  
Section 6.09 Cooperation; Reasonable Efforts
    22  
Section 6.10 Fairness Opinion
    22  
Section 6.11 Survival or Representations and Warranties
    22  
Section 6.12 No Company Issuances
    22  
Section 6.13 Restriction on Sale of Company Stock
    22  
Section 6.14 Acknowledgement Regarding Company NDA and Buyer NDA
    22  
Section 6.15 Voting
    23  
Section 6.16 DTE Transaction
    23  
 
       
ARTICLE VII CONDITIONS TO CLOSING
    24  
 
       
Section 7.01 Joint Conditions to the Obligations of the Parties
    24  
Section 7.02 Conditions to the Obligations of the Company
    24  
Section 7.03 Conditions to the Obligations of Buyer
    25  
 
       
ARTICLE VIII TERMINATION
    27  
 
       
Section 8.01 Termination
    27  
Section 8.02 Effect of Termination; Termination Fee
    28  
 
       
ARTICLE IX GENERAL PROVISIONS
    30  
 
       
Section 9.01 Assignment
    30  
Section 9.02 No Third-Party Beneficiaries
    30  
Section 9.03 Expenses
    30  
Section 9.04 Amendments
    30  
Section 9.05 Notices
    30  
Section 9.06 Exhibits
    31  
Section 9.07 Certain Acknowledgements.
    31  
Section 9.08 Severability
    31  
Section 9.09 Waiver of Compliance; Consents
    32  
Section 9.10 Entire Agreement; Termination of Term Sheet
    32  
Section 9.11 Dispute Resolution
    32  
Section 9.12 Governing Law
    33  

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Section 9.13 Successors and Assigns
    34  
Section 9.14 Counterparts
    34  
         
Exhibits:        
A
    Form of Certificate of Designations
B
    Form of Registration Rights Agreement
C
    Form of Investor Rights Agreement
D
    Form of Amended By-laws

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STOCK PURCHASE AGREEMENT
          This STOCK PURCHASE AGREEMENT, dated as of April 10, 2006, is entered into by and between SMART HYDROGEN INC., a BVI Business Company incorporated under the laws of the British Virgin Islands (“Buyer”), and PLUG POWER INC., a Delaware corporation (the “Company”). Buyer and the Company are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
RECITALS
          WHEREAS, the Company desires to sell shares of Class B Capital Stock (as defined hereinafter) to Buyer upon the terms and subject to the conditions set forth herein; and
          WHEREAS, as of the date hereof, Buyer is the beneficial owner of 2,714,700 shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”);
AGREEMENT
          NOW, THEREFORE, in consideration of the promises and the mutual agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
          Section 1.01 Certain Defined Terms. As used in this Agreement, the following terms shall have the following meanings:
          “401(k) Plan” means the Plug Power Inc. 401(k) Savings and Retirement Plan.
          “1997 Plan” has the meaning specified in Section 4.08.
          “1999 Plan” has the meaning specified in Section 4.08.
          “Affiliate” means, with respect to any specified Person, any other Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such specified Person.
          “Agreement” means this Stock Purchase Agreement, dated as of April 10, 2006, by and between the Company and Buyer, including the Exhibits hereto, and all amendments hereto made in accordance with Section 9.04.
          “Alternative Proposal” means any offer or proposal for, or indication of interest in, any: (i) merger, consolidation, spin-off, share exchange, reorganization, other business combination, recapitalization, or similar transaction involving the Company or any Company Subsidiaries (other than an acquisition of another Person by the Company or a Company

 


 

          Subsidiary); (ii) the acquisition, directly or indirectly, of an equity interest from the Company representing greater than 15% of the voting securities of the Company or any Company Subsidiary in a single transaction or series of transactions; (iii) tender offer or exchange offer that, if consummated would result in any Person owning greater than 15% of the voting securities of the Company in a transaction or series of transactions; or (iv) the acquisition of a substantial portion of any of the assets of the Company or any Company Subsidiaries; in each of the foregoing cases, other than as contemplated by this Agreement or as otherwise proposed by Buyer or its Affiliates.
          “Alternative Proposal Notice” has the meaning specified in Section 6.06(d).
          “Amended By-Laws” has the meaning specified in Section 7.03(d).
          “Applicable Laws” means, with respect to any Person, all federal, state, local, and foreign laws, statutes, ordinances, rules, regulations, policies, or guidelines promulgated by any Governmental Authority, whether in effect as of the date hereof or thereafter and in each case as amended, applicable to such Person or its Subsidiaries or their respective assets.
          “Branton” means Branton Limited, a company organized under the laws of the Commonwealth of the Bahamas.
          “Business Day” means any day that is not a Saturday, a Sunday, or other day on which banks are required or authorized by law to be closed in the city of New York, NY.
          “Buyer” has the meaning specified in the preamble to this Agreement.
          “Buyer Disclosure Letter” has the meaning specified in Section 5.12.
          “Buyer Expenses” has the meaning specified in Section 8.02(b).
          “Buyer NDA” means that certain Confidentiality Agreement, dated as of March 13, 2006, by and between the Company and Buyer.
          “Certificate of Designations” means the Certificate of Designations of Class B Capital Stock of Plug Power Inc., substantially in the form as attached hereto as Exhibit A.
          “CFIUS” has the meaning specified in Section 6.02.
          “Chairperson” has the meaning specified in Section 9.11.
          “Change in Company Recommendation” has the meaning specified in Section 6.05(a).
          “Class B Capital Stock” means the Company’s Class B Capital Stock, a series of preferred stock, par value $0.01 per share, having the rights, privileges, preferences and limitations set forth in the Certificate of Designations.
          “Class B Certificate” has the meaning specified in Section 2.01.

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          “Class B Directors” means the directors on the Company Board appointed by the holders of the shares of Class B Capital Stock.
          “Class B Purchase Price” has the meaning specified in Section 2.02.
          “Clayburn” means Clayburn Development Inc., a company organized under the laws of the British Virgin Islands.
          “Closing” has the meaning specified in Section 3.01.
          “Closing Date” has the meaning specified in Section 3.01.
          “Common Stock” has the meaning specified in the recitals to this Agreement.
          “Company” has the meaning specified in the preamble to this Agreement.
          “Company Board” has the meaning specified in Section 4.02.
          “Company By-laws” means the Amended and Restated By-laws of Plug Power Inc., as adopted on August 16, 1999 and in effect as of the date hereof.
          “Company Charter” means the Certificate of Incorporation of Plug Power Inc., as amended and in effect as of the date hereof.
          “Company Disclosure Letter” has the meaning specified in Section 7.3(l).
          “Company Material Adverse Effect” means any effect, event, or occurrence or state of facts (or any development that has had or is reasonably expected to have any change or effect) that is materially adverse to the business, assets, liabilities, results of operations, or financial condition of the Company and the Company Subsidiaries taken as a whole; provided, however, none of the following shall be deemed in themselves to constitute a Company Material Adverse Effect: (a) changes in conditions in the U.S. securities markets that are not specific to the Company; (b) changes in general economic or business conditions that are not specific to the Company; (c) changes in GAAP; (d) fluctuations in the price of the Company’s Common Stock (as reported on the NASDAQ); (e) the failure of the Company to meet its publicly announced projections or milestones (including those relating to revenue, unit orders, and shipments); (f) changes in law that generally affect the industries in which the Company and the Company’s Subsidiaries conduct business; and (g) the negotiation, execution, announcement or performance of this Agreement or the consummation of the Transaction, including the impact thereof on the Company’s relationships, contractual or otherwise, with customers, suppliers, licensors, distributors, partners, or employees.
          “Company NDA” means that certain letter agreement, dated as of January 19, 2006, by and among Buyer, the Company, and certain other parties.
          “Company Recommendation” has the meaning specified in Section 6.05(a).
          “Company Stockholder Approval” has the meaning specified in Section 6.05(a).

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          “Company Stockholder Meeting” has the meaning specified in Section 6.05(a).
          “Company Subsidiaries” means, with respect to the Company, any corporation or other organization, whether incorporated or unincorporated, (i) of which the Company or any other Subsidiary of the Company is a general partner or holds at least 50% of the securities or other interests having by their terms ordinary voting power to vote in the election of the board of directors or others performing similar functions with respect to such corporation or other organization, or (ii) which is directly or indirectly owned or controlled by the Company, by any one or more of its Subsidiaries, or by the Company and one or more of its Subsidiaries.
          “Competing Product” shall mean products incorporating proton exchange membrane fuel cells that compete with fuel cell heating appliances and produce heat and electricity with output of less than or equal to 10kW (electrical) and are integrated into the household or commercial heating system, for sale in Europe.
          “Contract”, when used with respect to any Person, means any note, bond, indenture, mortgage, deed of trust, lease, franchise, permit, authorization, license, contract, instrument, employee benefit plan, or practice, or other agreement, obligation, commitment, or concession of any nature to which such Person or any Subsidiary of such Person is a party, by which such Person, any Subsidiary of such Person or any of their respective assets or properties is bound or affected, or pursuant to which such Person or any Subsidiary of such Person is entitled to any rights or benefits.
          “control” (including the terms “controlled by” and “under common control with”), with respect to the relationship between or among two or more Persons, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities or voting interests, by contract, or otherwise.
          “Conversion Shares” has the meaning specified in Section 4.04.
          “DGCL” means the General Corporation Law of the State of Delaware, as amended.
          “Dispute” has the meaning specified in Section 9.11.
          “DOJ” has the meaning specified in Section 6.01.
          “DTE Foundation” shall mean DTE Energy Foundation, a Michigan non-profit corporation.
          “DTE Purchase Agreement” shall mean that certain stock purchase agreement by and between DTE Foundation and Buyer, of even date herewith, whereby Buyer has agreed to purchase from DTE Foundation, and DTE Foundation has agreed to sell to Buyer, 1,825,000 shares of Common Stock contemporaneously with the Closing and whereby Buyer and DTE Foundation have agreed that Buyer, DTE Foundation, the Company, and certain other Persons will execute certain other agreements and instruments in connection therewith.

4


 

          “DTE Shares” shall mean the 1,825,000 shares of Common Stock to be purchased by Buyer from DTE Foundation pursuant to the DTE Purchase Agreement.
          “DTE Transaction” shall mean, collectively, all of the transactions contemplated by the DTE Purchase Agreement, including the transactions contemplated by the other agreements and instruments executed by Buyer, DTE Foundation, the Company, and certain other Persons in connection with the DTE Purchase Agreement.
          “DTE Transaction Agreements” shall mean, collectively, the DTE Purchase Agreement and all of the other agreements and instruments executed in connection with the DTE Transaction.
          “Equity Incentive Plans” shall mean all current and future equity incentive plans and employee benefit plans of the Company that are approved by the Company Board, including without limitation, the 401(k) Plan, 1997 Plan, the 1999 Plan, and the ESP Plan.
          “ESP Plan” has the meaning specified in Section 4.08.
          “Exchange Act” means the Securities Exchange Act of 1934, as amended.
          “Exhibit” means an exhibit to this Agreement, each of which is incorporated herein and made a part hereof.
          “Exon-Florio Amendment” means section 721 of the Defense Production Act of 1950, as amended.
          “Exon-Florio Filing” has the meaning specified in Section 6.02.
          “Fairness Opinion” has the meaning specified in Section 4.14.
          “FTC” has the meaning specified in Section 6.01.
          “GAAP” has the meaning specified in Section 4.10.
          “Governmental Authority” means any federal, state, local, or foreign government, governmental, regulatory, or administrative authority, agency, or commission or any court, tribunal, or judicial, or arbitral body.
          “Governmental Consent” has the meaning specified in Section 4.06.
          “Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, determination, or award entered by or with any Governmental Authority.
          “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
          “HSR Filing” has the meaning specified in Section 6.01.

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          “Interros” means ZAO Interros Holding Company, a company organized under the laws of the Russian Federation.
          “Interros Principals” has the meaning specified in the Buyer Disclosure Letter.
          “Investor Rights Agreement” means the Investor Rights Agreement substantially in the form as attached hereto as Exhibit C.
          “Lien” means any security interest, mortgage, pledge, hypothecation, charge, claim, option, right to acquire, adverse interest, assignment, deposit arrangement, encumbrance, restriction, lien (statutory or other), or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any financing lease involving substantially the same economic effect as any of the foregoing, and the filing of any financing statement under the Uniform Commercial Code or comparable law of any jurisdiction).
          “Liquidated Amount” has the meaning specified in Section 8.02(b).
          “NASD” means the National Association of Securities Dealers, Inc.
          “NASDAQ” means The Nasdaq Stock Market, Inc.
          “NASDAQ Approval Letter” has the meaning specified in Section 6.03.
          “NASDAQ Request” has the meaning specified in Section 6.03.
          “Non-Party Buyer Affiliates” means all Affiliates of Buyer other than the Restricted Parties (including Norilsk Nickel, the Interros Principals and their Affiliates).
          “Norilsk Nickel” means MMC Norilsk Nickel, an open joint stock company organized under the laws of the Russian Federation.
          “Other Transaction Agreements” has the meaning specified in Section 3.02.
          “Party” and “Parties” have the meaning specified in the preamble to this Agreement.
          “Person” means any individual, partnership, firm, corporation, association, trust, unincorporated organization or other entity, as well as any syndicate or group that would be deemed to be a person under Section 13(d)(3) of the Exchange Act.
          “Pre-Closing EIP Shares” means the aggregate number of shares of Common Stock of the Company issued by the Company to any Person pursuant to the Equity Incentive Plans during the period of time commencing on the date hereof and ending on (and including) the Closing Date, less (x) any shares reacquired by the Company during such period as payment of the exercise price of a stock option or the tax withholding obligation in connection with any award under an Equity Incentive Plan, (y) any shares of unvested restricted stock originally issued pursuant to an Equity Incentive Plan that are forfeited or repurchased by the Company

6


 

           during such period, and (z) any shares otherwise reacquired by the Company as permitted under an Equity Incentive Plan during such period.
          “Preferred Stock” has the meaning specified in Section 4.08.
          “Proxy Statement” has the meaning specified in Section 6.05(b).
          “Registration Rights Agreement” means the Registration Rights Agreement substantially in the form as attached hereto as Exhibit B.
          “Restricted Parties” means, collectively, Buyer, Clayburn, Branton, and Interros.
          “Rules” has the meaning specified in Section 9.11
          “SEC” means the United States Securities and Exchange Commission.
          “SEC Filings” has the meaning specified in Section 4.09.
          “Securities Act” means the Securities Act of 1933, as amended.
          “Shares” has the meaning specified in Section 2.01.
          “Subsidiary”, when used with respect to any Person, means any corporation or other organization, whether incorporated or unincorporated, (i) of which such Person or any other Subsidiary of such Person is a general partner or holds at least 50% of the securities or other interests having by their terms ordinary voting power to vote in the election of the board of directors or others performing similar functions with respect to such corporation or other organization, or (ii) which is directly or indirectly owned or controlled by such Person, by any one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries.
          “Superior Proposal” means any bona fide written Alternative Proposal (i) for a merger, consolidation, spin-off, share exchange, reorganization, other business combination, recapitalization, or similar transaction involving the Company or any Company Subsidiaries pursuant to which the shareholders of the Company would own less than 80% of any class of equity securities of the resultant entity(ies); (ii) to acquire directly or indirectly, an equity interest from the Company representing greater than 31% of the voting securities of the Company or any Company Subsidiary in a single transaction or series of transactions; (iii) to commence a tender offer or exchange offer that, if consummated would result in any Person owning greater than 31% of the voting securities of the Company in a transaction or series of transactions; or (iv) acquire all or substantially all the assets of the Company, in each case on terms and conditions that the Company Board determines in good faith, after taking into account the advice of its outside counsel and a financial advisor of nationally recognized reputation (including without limitation Stephens Inc.) and the legal and regulatory aspects of such Alternative Proposal, and after taking into account all of the terms and conditions of the Alternative Proposal (including any break-up fees, expense reimbursement provisions, financing and other conditions to consummation, as well as any revisions to the terms of this Agreement proposed by Buyer), is more favorable, from a financial point of view, to the Company’s stockholders than the

7


 

          Transaction (after taking into account any such revisions to the terms of this Agreement proposed by Buyer), and which is reasonably capable of being completed.
          “Superior Proposal Notice” has the meaning specified in Section 6.06(a)(y).
          “Termination Date” has the meaning specified in Section 8.01(b).
          “Termination Fee” has the meaning specified in Section 8.02(b).
          “Transaction Agreements” mean, collectively, this Agreement, the Registration Rights Agreement, the Investor Rights Agreement, and the Certificate of Designations.
          “Transaction” means, collectively, all of the transactions and actions contemplated by the Transaction Agreements.
          “Transfer” of a security or other property means any direct or indirect transfer, donation, sale, assignment, pledge, hypothecation, grant of security interest in, or other disposal of such security or other property, including without limitation, by means of a transfer of the equity interests, by way of a merger or otherwise, of any Person that directly or indirectly owns such security or other property.
          “Tribunal” has the meaning specified in Section 9.11.
          “True-Up Purchase Price” has the meaning specified in Section 2.04.
          “True-Up Shares” has the meaning specified in Section 2.03.
          “True-Up Share Certificate” has the meaning specified in Section 2.03.
          “Violation” has the meaning specified in Section 4.07.
          Section 1.02 Rules of Construction; Absence of Presumption.
          (a) The definitions set forth or referenced in Section 1.01 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine, and neuter forms. The words “include,” “includes,” and “including” shall be deemed to be followed by the phrase “without limitation.” The words “herein,” “hereof,” and “hereunder” and words of similar import refer to this Agreement (including the Exhibits hereto) in its entirety and not to any part hereof unless the context shall otherwise require. All references herein to Articles, Sections, and Exhibits shall be deemed references to Articles and Sections of, and Exhibits to, this Agreement unless the context shall otherwise require. Unless the context shall otherwise require, any references to any agreement or other instrument or statute or regulation are to it as amended and supplemented from time to time (and, in the case of a statute or regulation, to any successor provisions). Any reference in this Agreement to a “day” or number of “days” (without the explicit qualification of Business Day) shall be interpreted as a reference to a calendar day or number of calendar days. If any action or notice is to be taken or given on or by a particular calendar day, and such calendar day is not a Business Day, then such action or notice shall be deferred until, or may be

8


 

          taken or given on, the next Business Day. The descriptive headings contained in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement.
          (b) This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
ARTICLE II
PURCHASE AND SALE
          Section 2.01 Issuance of Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall issue and sell to Buyer, and Buyer shall purchase from the Company, 395,000 fully paid and non-assessable shares of Class B Capital Stock (the “Shares”) at a per-share purchase price of $550.00 per Share (which is the equivalent of $5.50 per Conversion Share). The Company shall deliver to Buyer a duly endorsed certificate representing the Shares (the “Class B Certificate”) against payment of the Class B Purchase Price.
          Section 2.02 Payment of Class B Purchase Price. At the Closing, upon the terms and subject to the conditions of this Agreement, Buyer shall pay to the Company via wire transfer of immediately available funds to an account designated by the Company, the sum of $217,250,000 (the “Class B Purchase Price”).
          Section 2.03 Issuance of True-Up Shares. Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall issue and sell to Buyer, and Buyer shall purchase from the Company, that number of fully paid and non-assessable shares of Common Stock (the “True-Up Shares”) equal to the product obtained by multiplying (x) 0.35 by (y) the number of Pre-Closing EIP Shares, at a per-share purchase price of $5.50 per True-Up Share. The Company shall deliver to Buyer a duly endorsed certificate representing the True-Up Shares (the “True-Up Share Certificate”) against payment of the True-Up Purchase Price.
          Section 2.04 Payment of True-Up Purchase Price. At the Closing, upon the terms and subject to the conditions of this Agreement, Buyer shall pay to the Company via wire transfer of immediately available funds to an account designated by the Company, an amount of cash equal to the product of (x) 5.50, multiplied by (y) the number of True-Up Shares (such amount, the “True-Up Purchase Price”).
ARTICLE III
THE CLOSING
          Section 3.01 Closing Date. Subject to the conditions specified in Article VII, the closing of the Transaction (the “Closing”) shall take place at the offices of Goodwin Procter LLP, located at Exchange Place in Boston, Massachusetts, at 10:00 A.M. Eastern Time (the day on which the Closing takes place being hereinafter referred to as the “Closing Date”) on the third Business Day following the date on which all of the conditions to Closing set forth in Article VII hereof have been satisfied or waived (other than those conditions which by their nature are to be

9


 

          satisfied concurrently with the Closing, but subject to the satisfaction or waiver of these conditions) unless otherwise mutually agreed by the Parties.
          Section 3.02 Other Transaction Agreements. On the terms and subject to the conditions set forth herein, at the Closing, the Parties shall cause each of the following agreements (the “Other Transaction Agreements”) to be executed and delivered by the appropriate parties thereto in substantially the forms attached hereto with only such changes as may be agreed to by Buyer and the Company prior to the Closing: (i) Investor Rights Agreement; and (ii) Registration Rights Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
          The Company hereby represents and warrants to Buyer as follows:
          Section 4.01 Organization. The Company is a corporation duly organized and validly existing under the laws of the State of Delaware and is in good standing under such laws. The Company has the requisite corporate power to own and operate its properties and assets, and to carry on its business as presently conducted and as proposed to be conducted. The Company is qualified to do business and is in good standing in each of the jurisdictions where the character of its properties owned or held under lease or the nature of its activities makes such qualification necessary, except where the failure to be so qualified or in good standing would not cause a Company Material Adverse Effect.
          Section 4.02 Authorization of Agreement; Validity and Effect of Agreement. The Company has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement and, upon Company Stockholder Approval (as defined hereinafter), to consummate the transactions contemplated hereby. The execution and delivery of this Agreement by the Company and the performance by the Company of its obligations hereunder and, upon Company Stockholder Approval, the consummation of all transactions contemplated hereby have been duly authorized by the board of directors of the Company (the “Company Board”) and by all other necessary action on the part of the Company (except Company Stockholder Approval), and no other corporate proceedings on the part of the Company or its stockholders (other than Company Stockholder Approval) are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Company and constitutes a legal, valid, and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
          Section 4.03 Authorization of Other Transaction Agreements; Validity and Effect of Other Transaction Agreements. Upon Company Stockholder Approval, the Company will have the requisite corporate power and authority to execute, deliver, and perform its obligations under the Other Transaction Agreements and to consummate the transactions contemplated thereby. Upon Company Stockholder Approval, the execution and delivery of the Other

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          Transaction Agreements by the Company and the performance by the Company of its obligations thereunder and the consummation of all transactions contemplated thereby will have been duly authorized by the Company Board and the stockholders of the Company and by all other necessary action on the part of the Company, and no other corporate proceedings on the part of the Company or its stockholders will be necessary to authorize the Other Transaction Agreements and the transactions contemplated thereby. Upon their execution, the Other Transaction Agreements will have been duly and validly executed and delivered by the Company and constitute legal, valid, and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
          Section 4.04 Validity of the Shares, True-Up Shares, and Conversion Shares. Upon their issuance and delivery pursuant to this Agreement, the Shares (and any True-Up Shares) shall be validly issued, fully paid, and non-assessable. The shares of Common Stock issuable upon conversion of the Shares (the “Conversion Shares”) have been duly reserved for issuance upon conversion of the Shares, and when issued in compliance with the Certificate of Designations, will be duly and validly issued, fully paid, and non-assessable. Neither the issuance and delivery of the Shares (and any True-Up Shares) nor the issuance of the Conversion Shares are or will be at the time of issuance subject to any preemptive rights, rights of first refusal, or any similar rights of any Person or any Liens created by the Company except pursuant to the Transaction Agreements and applicable securities laws.
          Section 4.05 Authorization to File Certificate of Designations. No consent, approval, or authorization of the Company’s stockholders or any Person other than the Company Board is required in order for the Company to file the Certificate of Designations with the Secretary of State of the State of Delaware.
          Section 4.06 Governmental Consents. No consent, approval, or authorization of or designation, declaration or filing with any Governmental Authority (a “Governmental Consent”) is required to be obtained or made by the Company in connection with the valid execution and delivery of this Agreement, or the offer, sale, or issuance of the Shares or any True-Up Shares, or the consummation of any other transaction contemplated hereby, except for (i) the filing of the Certificate of Designations with the Secretary of State of the State of Delaware; (ii) such consents and approvals of or filings or registrations as may be required to be made pursuant to the HSR Act; (iii) such consents and approvals of or filings as may be required to be made pursuant to the Exon-Florio Amendment; and (iv) such filings as may be required to be made with the SEC and the NASDAQ.
          Section 4.07 No Conflict. The execution and delivery of this Agreement, the Registration Rights Agreement, and the Investor Rights Agreement do not, and upon Company Stockholder Approval, the consummation of the transactions contemplated hereby and thereby shall not, (i) conflict with, or result in the breach of, any provision of the Company Charter or Company By-laws, or any other similar governing or organizational document of the Company (assuming the Certificate of Designations is filed with the Secretary of State of the State of Delaware and the Amended By-laws are adopted prior to the consummation of the transactions

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contemplated hereby and thereby); (ii) assuming the satisfaction of the requirements set forth in Section 4.06, violate any Applicable Laws applicable to the Company or any of its properties or assets, except as would not cause a Company Material Adverse Effect; or (iii) conflict with or result in any violation or breach of or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation, suspension, modification, or acceleration of any obligation or any increase in payment required by, or the impairment, loss, or forfeiture or any material benefit, rights, or privileges under, or the creation of a Lien or other encumbrance on any assets pursuant to (any such conflict, violation, breach, default, right of termination, cancellation, suspension, modification, acceleration, impairment, loss, forfeiture, or creation, a “Violation”) any Contract to which the Company or any Company Subsidiary is a party, by which the Company or any Company Subsidiary or any of their respective assets or properties is bound or affected, or pursuant to which the Company or any Company Subsidiary is entitled to any rights or benefits, except as would not cause a Company Material Adverse Effect.
          Section 4.08 Capital Stock and Ownership of the Company.
          (a) The authorized capital stock of the Company consists of 245,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.01 per share (“Preferred Stock”). As of the date hereof, the Company has (i) 86,266,835 issued and outstanding shares of Common Stock, all of which are validly issued, fully paid, and non-assessable; and (ii) no shares of issued or outstanding Preferred Stock. No shares of Common Stock or Preferred Stock that have been issued are held by the Company in its treasury or by any Company Subsidiaries.
          (b) As of the date hereof, the Company has outstanding options to purchase a total of 6,154,494 shares of Common Stock under the Plug Power, L.L.C. Second Amendment and Restatement of the Membership Option Plan, as amended (the “1997 Plan”), and the Plug Power Inc. 1999 Stock Option and Incentive Plan (the “1999 Plan”). As of the date hereof, no additional shares of Common Stock are available for issuance under the 1997 Plan and 3,820,850 additional shares of Common Stock are available for issuance under the 1999 Plan. As of the date hereof, the Company has 575,277 shares of Common Stock available for issuance under the Plug Power Inc. Employee Stock Purchase Plan (the “ESP Plan”). Pursuant to the 401(k) Plan, the Company funds its matching obligation under the 401(k) Plan by issuing shares of Common Stock to the 401(k) Plan. The Company’s matching obligation under the 401(k) Plan is equal to each individual employee’s percentage salary deferral, up to 5 percent, and is funded on a monthly basis. The number of shares of Common Stock issued is calculated based on the total amount of the matching obligation divided by the closing price of the Common Stock on the issuance date.
          (c) Except for (x) options issued under and in accordance with the 1997 Plan and the 1999 Plan; (y) the rights of certain Persons under the ESP Plan and 401(k) Plan; and (z) as contained in this Agreement, there are no options, warrants, convertible securities, or other rights, agreements, arrangements, or commitments of any character obligating the Company to issue or sell any additional shares of capital stock of, or other equity interest in, the Company.
          Section 4.09 SEC Filings. Since January 1, 2006, the Company has filed in a timely manner all required reports, schedules, forms, statements, and other documents with the

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SEC that the Company was required to file under Section 13, 14(a), and 15(d) of the Exchange Act (the “SEC Filings”). As of their respective filing dates, the SEC Filings complied in all material respects with requirements of the Securities Act or the Exchange Act, as the case may be and the rules and regulations of the SEC promulgated thereunder applicable to such SEC Filings, and none of the SEC Filings contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Except to the extent that information contained in any SEC Filing has been revised or superseded by a later filed SEC Filing, none of the SEC Filings contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
          Section 4.10 Financial Statements. The financial statements of the Company included in the SEC Filings comply as to form in all material respects with applicable accounting requirements and the published rules and regulations of the SEC with respect thereto, have been prepared in accordance with U.S. generally accepted accounting principles (“GAAP”) (except, in the case of unaudited statements as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods involved (except as may be indicted in the notes thereto) and fairly present the consolidated financial position of the Company and its consolidated subsidiaries as of the dates thereof and the consolidated results of their operation and cashflows for the periods then ending (subject, in the case of the unaudited statements, to normal year-end audit adjustments). Except as set forth in the filed SEC Filings, neither the Company nor any of its subsidiaries has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth on a consolidated balance sheet of the Company and its consolidated subsidiaries or in the notes thereto and which could reasonably be expected to lead to a Company Material Adverse Effect.
          Section 4.11 Absence of Certain Changes or Events. Except as disclosed in the SEC Filings since the date of the most recent audited financial statements included in the SEC Filings, there has not been (i) any declaration, setting aside or payment of any dividend or distribution (whether in cash, stock, or property) with respect to any of the Company’s capital stock; (ii) any split, combination, or reclassification of any of the Company’s capital stock or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of, or in substitution for shares of the Company’s capital stock; or (iii) any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities, or business, except insofar as may have been required by a change in GAAP.
          Section 4.12 Proxy Statement Information. None of the information supplied or to be supplied by the Company for inclusion or incorporation by reference in the Proxy Statement shall at the respective times filed with the SEC and as of the date it or any amendment or supplement thereto is mailed to stockholders and at the time of the Company Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement, insofar as it relates to the Company or other information supplied by the Company for inclusion therein, shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations promulgated thereunder. Notwithstanding the foregoing, the Company

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makes no representation, warranty, or covenant with respect to information concerning Buyer included in the Proxy Statement or information supplied by Buyer for inclusion in the Proxy Statement.
          Section 4.13 State Takeover Statutes. The Company Board has approved this Agreement and the Transaction, and such approval is sufficient to render inapplicable to this Agreement and the Transaction the restrictions of Section 203 of the DGCL. To the Company’s knowledge, no other state takeover statute or similar statute or regulation applies or purports to apply to this Agreement or to the Transaction.
          Section 4.14 Fairness Opinion. The Company Board has received the oral opinion of Stephens Inc. to the effect that, as of the date hereof, the consideration to be received by the Company in the Transaction is fair, from a financial point of view, to the Company (the “Fairness Opinion”).
          Section 4.15 Approval By Company Board. The Company Board, by vote at a meeting duly called and held, has approved the Transaction Agreements and the Transaction.
          Section 4.16 Stockholder Approval Required. The only approval of stockholders of the Company required under the DGCL, NASDAQ stock market requirements, the Company Charter, and the Company By-laws in order to approve the Transaction Agreements and the Transaction is the approval of the Transaction by the affirmative vote of the holders of a majority of the shares of Common Stock present in person or represented by proxy and entitled to vote thereon at a stockholder meeting at which a quorum is present, and no other vote or approval of or other action by the holders of any capital stock of the Company is required for the approval of the Transaction and the Transaction Agreements.
          Section 4.17 Brokers. Except for Stephens Inc., no agent, broker, finder, or investment banker is or will be entitled to any broker’s, finder’s, or other fee or commission, or to reimbursement of expenses, or to indemnification or contribution in connection with the Transaction based upon arrangements made by or on behalf of the Company. All fees, commissions, or other like payments claimed to be due to Stephens Inc., or any other advisor, consultant, or broker assisting the Company in connection with the Transaction, or the negotiations leading to this Agreement, shall be paid by the Company, and Buyer shall have no liability therefor.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
          Buyer hereby represents and warrants to the Company as follows:
          Section 5.01 Organization. Buyer is a corporation duly organized and validly existing under the laws of the British Virgin Islands and is in good standing under such laws.
          Section 5.02 Authorization of Agreement; Validity and Effect of Agreement. Buyer has the requisite corporate power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby. The

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execution and delivery of this Agreement by Buyer and the performance by Buyer of its obligations hereunder, and the consummation of all transactions contemplated hereby, have been duly authorized by the sole director of Buyer and by all other necessary action on the part of the Buyer, and no other corporate proceedings on the part of Buyer are necessary to authorize this Agreement and the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by Buyer and constitutes a legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
          Section 5.03 Authorization of Other Transaction Agreements; Validity and Effect of Other Transaction Agreements. Buyer has the requisite corporate power and authority to execute, deliver, and perform its obligations under the Other Transaction Agreements and to consummate the transactions contemplated thereby. The execution and delivery of the Other Transaction Agreements by Buyer and the performance by Buyer of its obligations thereunder, and the consummation of all transactions contemplated thereby, have been duly authorized by Buyer and by all other necessary action on the part of Buyer, and no other corporate proceedings on the part of Buyer are necessary to authorize the Other Transaction Agreements and the transactions contemplated thereby. Upon their execution, the Other Transaction Agreements will have been duly and validly executed and delivered by Buyer and constitute legal, valid, and binding obligations of Buyer, enforceable against Buyer in accordance with their terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law), and an implied covenant of good faith and fair dealing.
          Section 5.04 Governmental Consents. No Governmental Consent is required to be obtained or made by Buyer in connection with the valid execution and delivery of this Agreement, or its purchase of the Shares (or any True-Up Shares), or the consummation of any other transaction contemplated hereby, except for (i) such consents and approvals of or filings or registrations as may be required to be made pursuant to the HSR Act; (ii) such consents and approvals of or filings as may be required to be made pursuant to the Exon-Florio Amendment; and (iii) such filings as may be required to be made with the SEC.
          Section 5.05 No Conflict. The execution and delivery of this Agreement, the Registration Rights Agreement, and the Investor Rights Agreement do not, and the consummation of the transactions contemplated hereby and thereby shall not, (i) conflict with, or result in the breach of, any provision of Buyer’s governing or organizational documents; (ii) violate any Applicable Laws applicable to Buyer or any of its properties or assets except as would not have a material adverse effect on Buyer; or (iii) constitute a Violation with respect to any Contract to which Buyer is a party, by which Buyer or any of its assets or properties is bound or affected, or pursuant to which Buyer is entitled to any rights or benefits, except as would not have a material adverse effect on Buyer.

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          Section 5.06 Investment; Experience; Accredited Investor.
          (a) Buyer is acquiring the Shares (and any True-Up Shares) for investment for its own account, not as a nominee or agent, and not with a view to, or for resale in connection with, any distribution thereof. Buyer understands that the Shares (and any True-Up Shares) have not been registered under the Securities Act by reason of a specific exemption from the registration provisions of the Securities Act which depends upon, among other things, the bona fide nature of the investment intent and the accuracy of the Buyer’s representations and warranties contained herein.
          (b) Buyer understands that the purchase of the Shares (and any True-Up Shares) involves substantial risk. Buyer has experience as an investor in securities of companies and acknowledges that it is able to fend for itself, can bear the economic risk of its investment in the Shares (and any True-Up Shares), and has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of this investment in the Shares (and any True-Up Shares) and protecting its own interests in connection with this investment.
          (c) Buyer is an “accredited investor” within the meaning of Regulation D promulgated under the Securities Act.
          Section 5.07 Restricted Securities. Buyer understands that the Shares (and any True-Up Shares) to be purchased by Buyer hereunder are characterized as “restricted securities” under the Securities Act inasmuch as they are being acquired from the Company in a transaction not involving a public offering and that under the Securities Act and applicable regulations thereunder such securities may be resold without registration under the Securities Act only in certain limited circumstances. Buyer understands that the Company is under no obligation to register any of the Shares or True-Up Shares sold hereunder, or Conversion Shares issuable upon conversion of the Shares, except as provided in the Registration Rights Agreement.
          Section 5.08 Financing. Buyer’s available funds are sufficient to (i) consummate the Transaction; (ii) perform Buyer’s obligations under the Transaction Agreements; and (iii) pay the fees and expenses it incurs in connection with the Transaction.
          Section 5.09 Beneficial Ownership of Common Stock. Prior to the purchase of the DTE Shares pursuant to the DTE Purchase Agreement, the Restricted Parties and the Non-Party Buyer Affiliates, collectively, beneficially own 2,714,700 shares of Common Stock and no other shares of the capital stock of the Company. Except for rights under this Agreement and the DTE Transaction Agreements, the Restricted Parties and the Non-Party Buyer Affiliates do not own any options, warrants, or convertible securities, or other rights, agreements, arrangements, or commitments of any character exercisable or convertible for, or to acquire, any additional shares of capital stock of, or other equity interest in, the Company.
          Section 5.10 Proxy Statement Information. None of the information supplied or to be supplied by Buyer for inclusion or incorporation by reference in the Proxy Statement shall at the respective times filed with the SEC or as of the date it or any amendment or supplement thereto is mailed to stockholders and at the time of the Company Stockholder Meeting (as

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defined hereinafter), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding the foregoing, Buyer makes no representation, warranty, or covenant with respect to information concerning the Company included in the Proxy Statement or information supplied by the Company for inclusion in the Proxy Statement.
          Section 5.11 Brokers. Except for Citigroup Global Markets, Inc., no agent, broker, finder, or investment banker is or will be entitled to any broker’s, finder’s, or other fee or commission, or to reimbursement of expenses, or to indemnification or contribution in connection with the Transaction based upon arrangements made by or on behalf of Buyer. Except as otherwise provided herein, all fees, commissions, or other like payments claimed to be due to Citigroup Global Markets, Inc., or any other advisor, consultant, or broker assisting Buyer in connection with the Transaction, or the negotiations leading to this Agreement, shall be paid by Buyer, and the Company shall have no liability therefor.
          Section 5.12 Ownership and Control of Buyer. Except as set forth in that certain disclosure letter, dated as of the date hereof, delivered by Buyer to the Company (the “Buyer Disclosure Letter”), no Person directly or indirectly through one or more other Persons controls Buyer or will, upon Buyer’s purchase of the Shares (or any True-Up Shares), be deemed to beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act) the Shares (or any True-Up Shares).
          Section 5.13 Direct Competitor. No Restricted Party is an entity that produces fuel cell products, Competing Products, or gas or oil fired heating appliances for residential or commercial use.
ARTICLE VI
ADDITIONAL COVENANTS
          Section 6.01 HSR Filing. Upon the terms and subject to the conditions contained in this Agreement, the Parties shall, as promptly as practicable, file with the United States Federal Trade Commission (the “FTC”) and the United States Department of Justice (the “DOJ”) the notification and report form, if any, required for the Transaction and any supplemental information requested in connection therewith pursuant to the HSR Act (such notification and report form and supplemental information filed, collectively, the “HSR Filing”). Buyer shall pay all the filing fees required by the HSR Filing, and the Parties shall use commercially reasonable efforts to ensure that the HSR Filing is made in substantial compliance with the requirements of the HSR Act. Each Party shall furnish to the other Party such necessary information and reasonable assistance as the other Party may request in connection with its preparation of any portion of the HSR Filing which is necessary under the HSR Act. The Parties shall keep each other apprised of the status of any communications with, and inquiries or requests for additional information from, the FTC and the DOJ, and shall comply promptly with any such inquiry or request. The Parties shall use commercially reasonable efforts to obtain any clearance required under the HSR Act for the Transaction. Immediately upon receipt of any such clearance (whether the notification of such clearance was received orally or in writing), the Company or Buyer, as applicable, shall notify the other Party of such receipt.

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          Section 6.02 Exon-Florio Filing. Upon the terms and subject to the conditions contained in this Agreement, the Parties shall, as promptly as practicable following the execution of this Agreement, cooperate in good faith to prepare and submit to the Committee on Foreign Investment in the United States (“CFIUS”) such filing(s) required to seek formal clearance for the Transaction under the Exon-Florio Amendment (the “Exon-Florio Filing”). Neither the Exon-Florio Filing nor any draft thereof shall be submitted to CFIUS or its staff without the prior approval of both the Company and Buyer. All formal and informal written communications (including electronic mail) with CFIUS or its staff relating to the Transaction shall be approved in advance by both Parties. Each Party shall use commercially reasonable efforts to ensure that no representative of either Party has substantive oral communications with CFIUS or its staff regarding the Transaction unless a representative of each Party is present.
          Section 6.03 NASDAQ Request. As soon as practicable following the execution of this Agreement, the Company shall request from the staff of NASDAQ, pursuant to NASD Rule 4550, an interpretative letter confirming that the terms of the Class B Capital Stock relating to the Class B Directors (as described in the Certificate of Designations) do not violate NASD Rule 4351 (the “NASDAQ Request”). The Parties shall cooperate in good faith in connection with the preparation and submission of the NASDAQ Request and shall use commercially reasonable efforts to obtain as soon as practicable (and prior to the Closing) an interpretative letter from the staff of NASDAQ providing the requisite confirmation sought by the NASDAQ Request (a “NASDAQ Approval Letter”). Neither the NASDAQ Request nor any draft thereof shall be submitted to NASDAQ or its staff without the prior approval of each of the Parties. All formal and informal written communications (including without limitation electronic mail) with NASDAQ or its staff relating to the Transaction shall be approved in advance by each Party. Each Party shall use commercially reasonable efforts to ensure that no representative of either Party has substantive oral communications with NASDAQ or its staff regarding the Transaction unless a representative of each Party is present. The Company shall pay all fees due to NASDAQ in connection with the NASDAQ Request. For purposes of clarity, the Parties acknowledge and agree that an interpretative letter from the NASDAQ in response to the NASDAQ Request that (i) does not expressly confirm that the terms of the Class B Capital Stock relating to the Class B Directors (as described in the Certificate of Designations) do not violate NASD Rule 4351, or (ii) indicates that the Transaction violates any other applicable rule or regulation shall not constitute a NASDAQ Approval Letter and shall give rise to a termination right under Section 8.01(j).
          Section 6.04 Filing of Certificate of Designations. Prior to the Closing, the Company shall adopt, execute, and file the Certificate of Designations with the Secretary of State of Delaware.
          Section 6.05 Stockholder Meeting
          (a) The Company shall, as soon as practicable following the execution of this Agreement, duly call, give notice of, convene, and hold a meeting of its stockholders (the “Company Stockholder Meeting”) for the purpose of approving the Transaction (the “Company Stockholder Approval”). The Company will, through the Company Board, recommend to its stockholders that the Company Stockholder Approval be given (the “Company Recommendation”) and shall not (i) withdraw, modify, or qualify (or propose to withdraw,

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modify, or qualify) in any manner adverse to Buyer such Company Recommendation; or (ii) take any action or make any statement in connection with the Company Stockholder Meeting inconsistent with such Company Recommendation (each of (i) and (ii) constituting, a “Change in Company Recommendation”); provided, however, that the Company may effect a Change in Company Recommendation if such action is taken in good faith taking into account advice from the Company’s financial and legal advisers to the effect that the failure to do so would be inconsistent with the Company Board’s fiduciary duties under Applicable Laws. Without limiting the generality of the foregoing, subject to Section 6.06(c), the Company’s obligations pursuant to the first sentence of this Section 6.05(a) shall not be affected by (i) the commencement, public proposal, public disclosure, or communication to the Company of any Alternative Proposal; or (ii) the withdrawal or modification by the Company Board of its approval or recommendation of the Transaction.
          (b) The Company shall, as soon as practicable following the execution of this Agreement, prepare and file with the SEC a preliminary proxy statement relating to this Agreement and the Transaction and will use its reasonable best efforts to respond to any comments of the SEC and to cause the definitive proxy statement relating to this Agreement and the Transaction (the “Proxy Statement”) to be mailed to the Company’s stockholders as promptly as practicable after responding to all such comments to the satisfaction of the SEC. The Company will notify Buyer promptly of the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Proxy Statement or for additional information, and will supply Buyer with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement or the Transaction. If at any time prior to the Company Stockholder Meeting there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company will promptly prepare and mail to its stockholders such an amendment or supplement. The Company will not mail any Proxy Statement, or any amendment or supplement thereto, to which Buyer reasonably objects after being afforded the opportunity to review the same. Buyer shall cooperate with the Company in the preparation of the Proxy Statement and in responding to comments of the SEC, and Buyer shall promptly notify the Company if any information supplied by it for inclusion in the Proxy Statement shall have become false or misleading, and shall cooperate with the Company in disseminating the Proxy Statement, as so amended or supplemented, to correct any such false or misleading information.
          Section 6.06 No Solicitation.
          (a) After the date hereof and prior to Company Stockholder Approval, the Company will not, directly or indirectly, through any Company Subsidiary, Affiliate, officer, director, employee, agent, or representative or otherwise (i) solicit, initiate, or knowingly encourage, or take any other action to facilitate any inquiries or proposals that constitute, or would reasonably be expected to lead to, an Alternative Proposal; (ii) cooperate with, or furnish or cause to be furnished, any non-public information concerning the business, properties, or assets of the Company or any Company Subsidiaries, to any Person in connection with any Alternative Proposal; (iii) participate in any discussions or negotiations with any Person regarding any Alternative Proposal; (iv) approve, recommend, or permit the Company or any Company Subsidiary to enter into an agreement or understanding with any Person relating to any Alternative Proposal; or (v) vote for, execute a written consent (or equivalent instrument) in

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favor of, or otherwise approve or recommend or enter into any agreements or understandings with respect to any of the foregoing; provided, however, that this Section 6.06(a) shall not prohibit the Company or the Company Board, to the extent the Company Board determines in its good faith judgment that the failure to take such action would be inconsistent with its fiduciary duties to its stockholders under Applicable Laws, after taking into account the advice of outside legal counsel, from providing information to, participating in discussions with, or negotiating with any third party that delivers an Alternative Proposal that was not solicited in violation of this Section 6.06(a), subject to, and provided that the Company shall comply with, all of the following:
  (x)   In the event that the Company Board decides to entertain an Alternative Proposal by taking any of the actions referred to in clauses (ii), (iii), or (iv) above, the Company shall immediately orally notify Buyer to such effect, and shall furnish to Buyer an Alternative Proposal Notice (as defined hereinafter) in accordance with Section 6.06(d);
 
  (y)   Prior to the expiration of 30 days following delivery of an Alternative Proposal Notice to Buyer, the Company shall either (A) cease to entertain the Alternative Proposal, immediately discontinuing discussions with respect thereto, and notify Buyer in writing to such effect, or (B) notify Buyer in writing that the Company Board has determined that the Alternative Proposal is a Superior Proposal and deliver to Buyer a written notice setting forth the terms and conditions thereof (a “Superior Proposal Notice”);
 
  (z)   Within 10 days following Buyer’s receipt of a Superior Proposal Notice, Buyer shall have the right to either (A) propose terms alternative to the Superior Proposal, which the Company Board shall then consider in accordance with its fiduciary duties, and advise Buyer of the Company’s acceptance or rejection thereof within 5 Business Days, or (B) terminate this Agreement without any further obligation to the Company, or (C) notify the Company that Buyer elects neither (A) nor (B), in which case the other terms of this Section 6.06, including subsection (c), shall remain in effect and shall govern.
In the case of any Alternative Proposal, the Company and Buyer shall consult in good faith regarding the merits of any Alternative Proposal or Superior Proposal. In no event shall the Company make available any information to a Person involving an Alternative Proposal that has not previously been made available or is not concurrently made available to Buyer.
          (b) Nothing contained in this Agreement shall prevent the Company Board from complying with Rule 14e-2 and Rule 14d-9 under the Exchange Act with regard to an Alternative Proposal, provided that the Company Board shall not recommend that the stockholders of the Company tender their shares in connection with a tender offer except to the extent the Company Board determines in its good faith judgment that the failure to make such a recommendation would be inconsistent with its fiduciary duties to its stockholders under Applicable Laws, after taking into account the advice of outside legal counsel (it being

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understood that disclosure by the Company of its receipt of an Alternative Proposal and the terms thereof shall not alone constitute a withdrawal or modification of such position or an approval or recommendation of such Alternative Proposal).
          (c) Notwithstanding the foregoing, at any time before the Company Stockholder Approval, in response to a Superior Proposal which was unsolicited and which did not otherwise result from a breach of Section 6.06(a), the Company Board may (subject to this sentence), if it determines in good faith after consultation with outside legal counsel that the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under Applicable Laws, terminate this Agreement and concurrently with such termination cause the Company to enter into a definitive acquisition agreement with respect to such Superior Proposal (the determination of whether a proposal is a Superior Proposal to be made after consideration of any modification proposed by Buyer), but only (i) at a time that is following Buyer’s receipt of the form of such definitive agreements containing the material terms and conditions of such Superior Proposal and identifying the Person making such Superior Proposal, and (ii) after the Company has made payment of the Termination Fee required by Section 8.02.
          (d) The Company shall both notify Buyer orally and provide Buyer with a written notice promptly (but in no event later than 24 hours) after receipt by the Company (or any of its advisors) of any Alternative Proposal or of any request (other than in the ordinary course of business and not related to an Alternative Proposal) for non-public information relating to the Company or any Company Subsidiaries or for access to the properties, books, or records of the Company or any Company Subsidiary by any Person who is known to be considering making, or has made, an Alternative Proposal (an “Alternative Proposal Notice”). The Alternative Proposal Notice shall identify the Person making, and the terms and conditions of, any such Alternative Proposal, indication, or request. The Company shall keep Buyer fully informed, on a prompt basis (but in any event no later than 24 hours), of the status and details of any such Alternative Proposal, indication, or request.
          (e) The Company shall, and shall cause the Company Subsidiaries and the directors, employees, and other agents of the Company and the Company Subsidiaries to, cease immediately and cause to be terminated all activities, discussions, or negotiations, if any, with any Persons conducted prior to the date hereof with respect to any Alternative Proposal.
          Section 6.07 SEC Filings. In addition to such rights and obligations afforded to Buyer in Section 6.05 with respect to the Proxy Statement, Buyer shall be afforded the reasonable opportunity to review and comment upon all other SEC filings of the Company related to the Transaction.
          Section 6.08 Public Announcements. The Parties shall use commercially reasonable efforts to develop a joint communications plan, and each Party shall use commercially reasonable efforts to ensure that all press releases and other public statements made by it with respect to the transactions contemplated hereby shall be consistent with such joint communications plan. Unless otherwise required by Applicable Laws or by obligations pursuant to any listing agreement with, or rules of, any securities exchange, the NASD, or the NASDAQ, each Party shall use commercially reasonable efforts to consult with, and use

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commercially reasonable efforts to accommodate, the comments of the other Parties before issuing any press release with respect to this Agreement or the transactions contemplated hereby.
          Section 6.09 Cooperation; Reasonable Efforts. Without limiting the obligations of any Party under this Agreement, upon the terms and subject to the conditions contained in this Agreement, each Party shall cooperate in good faith with the other Party and shall use commercially reasonable efforts to take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper, or advisable under Applicable Laws, and execute and deliver such documents and other papers, as may be required to (i) carry out the provisions of this Agreement; (ii) consummate and make effective the Transaction; and (iii) otherwise cause the conditions to Closing set forth in Article VII to be satisfied. Each Party shall promptly notify the other Party after learning of the occurrence of any event or circumstance which would reasonably be expected to cause any condition to Closing set forth in Article VII not to be satisfied or to cause the Closing to be delayed. Without limiting the obligations of any Party under this Agreement, at any time prior to the Closing, upon the request of Buyer, the Company shall promptly advise Buyer in writing of the number of Pre-Closing EIP Shares as of the date of Buyer’s request.
          Section 6.10 Fairness Opinion. The Company will provide Buyer with a true and complete copy of the executed Fairness Opinion as soon as practicable after its issuance. In addition, the Company will include an executed copy of the Fairness Opinion in the Proxy Statement.
          Section 6.11 Survival or Representations and Warranties. All representations and warranties of the Parties contained in Articles IV and V of this Agreement, or in any certificate, document, or other instrument delivered in connection herewith, shall survive the Closing for a period of 18 months.
          Section 6.12 No Company Issuances. Except as otherwise consented to in writing by Buyer (in its sole and absolute discretion), from and after the date hereof, and until the earlier of the Closing Date or the termination of this Agreement, the Company shall not (i) issue any shares of its capital stock, or securities convertible into or exercisable for shares of the Company’s capital stock, in any transaction in which Buyer would have had a preemptive right or top-up right under article V or sections 6.1 or 6.2 of the Investor Rights Agreement assuming that such agreement was fully-executed and in force at the time of such issuance; or (ii) enter into any agreement, arrangement, or commitment to do any of the foregoing.
          Section 6.13 Restriction on Sale of Company Stock. From and after the date hereof and until the earlier of the Closing Date or the termination of this Agreement, Buyer shall not Transfer all or any portion of the shares of Common Stock beneficially owned by Buyer without the prior written consent of the Company.
          Section 6.14 Acknowledgement Regarding Company NDA and Buyer NDA. The Parties acknowledge that, notwithstanding the execution of this Agreement, (i) the provisions of the Company NDA, including, without limitation, the provisions contained in section 6 thereof, remain in effect until the expiration or termination of the Company NDA; and (ii) the provisions of the Buyer NDA remain in effect until the expiration or termination of the

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Buyer NDA. The Parties further acknowledge and agree that (i) the Buyer Disclosure Letter and all of the information contained therein constitutes “Information” within the meaning of the Buyer NDA; and (ii) the Company Disclosure Letter and all of the information contained therein constitutes “Evaluation Material” within the meaning of the Company NDA.
          Section 6.15 Voting. Buyer agrees to vote all shares of Common Stock beneficially owned (as defined in Rule 13d-3 under the Exchange Act) by Buyer, over which Buyer exercises voting control, whether directly or indirectly, as of the record date for the Company Stockholder Meeting in favor of the Transaction at the Company Stockholder Meeting.
          Section 6.16 DTE Transaction.
          (a) Subject to Section 6.16(c), Buyer shall use commercially reasonable efforts to cause the transactions contemplated by the DTE Purchase Agreement to be consummated (in accordance with and subject to the terms and conditions of the DTE Purchase Agreement) contemporaneously with the Closing of the Transaction.
          (b) Subject to Section 6.16(c), if the DTE Transaction is not consummated, or if less than all of the DTE Shares have been purchased by Buyer, as of immediately prior to the Closing of the Transaction, then, unless the Parties otherwise agree, upon the termination of the DTE Purchase Agreement in accordance with the terms thereof, the Company will have the option to sell, and the Buyer will be obligated to purchase, at the Closing, a number of shares of Class B Capital Stock, in addition to the Shares, convertible into a number of shares of Common Stock equal to 1,825,000 less the number of DTE Shares, if any, purchased by Buyer prior to the Closing upon the same terms and conditions as those relating to the sale and issuance of the Shares hereunder. Any such additional shares of Class B Capital Stock shall be deemed to be included in the definition of the term “Shares” and the purchase price paid for such shares shall be deemed to be included in the definition of the term “Class B Purchase Price” for all purposes of this Agreement.
          (c) Notwithstanding anything to the contrary in this Agreement, nothing in Section 6.09 or this Section 6.16 shall (i) be deemed to be a waiver, modification, amendment, or consent by Buyer or the Company under any DTE Transaction Agreement or any other agreement or instrument executed in connection therewith; (ii) prevent or in any manner limit or restrict Buyer or the Company from exercising or enforcing any right under any DTE Transaction Agreement or any other agreement or instrument executed in connection therewith; (iii) require Buyer to consummate the DTE Transaction if Buyer is not obligated to do so under the DTE Purchase Agreement; (iv) require Buyer to breach or take any action it deems (in its sole and absolute discretion) to be inconsistent with its obligations under any DTE Transaction Agreement or any other agreement or instrument executed in connection therewith; (v) require Buyer to terminate any DTE Transaction Agreement if Buyer determines (in its sole and absolute discretion) that it is not entitled to do so under the terms thereof; or (vi) require Buyer or the Company to waive any right or condition, grant any consent, or agree to any amendment or modification under any DTE Transaction Agreement or any other agreement or instrument executed in connection therewith.

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ARTICLE VII
CONDITIONS TO CLOSING
          Section 7.01 Joint Conditions to the Obligations of the Parties. The obligations of the Parties to consummate the Transaction shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions, any of which, to the extent permitted by Applicable Laws, may be waived by mutual written agreement of the Parties:
          (a) HSR Act. Any waiting period (and any extension thereof) under the HSR Act applicable to the consummation of the Transaction shall have expired or shall have been terminated.
          (b) Exon-Florio Clearance. The Parties shall have received written notification from CFIUS of the termination of its review and/or investigation of the Transaction under the Exon-Florio Amendment without any action authorized under the Exon-Florio Amendment being commenced by the President of the United States.
          (c) NASDAQ Request. The Company shall have made the NASDAQ Request.
          (d) Approval of Company’s Stockholders. The Transaction shall have been approved by the requisite affirmative vote of the stockholders of the Company to the extent required by NASD rules, the DGCL, and the Company Charter.
          (e) No Governmental Order. No Governmental Order or other legal restraint or prohibition shall be in effect preventing consummation of the Transaction or permitting such consummation, enforcement, or performance subject only to any condition or restriction that has had or would reasonably be expected to have (i) a material adverse effect on the Transaction, or (ii) a Company Material Adverse Effect.
          (f) No Governmental Litigation. There shall not be any legal proceeding pending or threatened in writing in which a Governmental Authority is (i) challenging or seeking to restrain or prohibit the consummation of the Transaction; (ii) seeking to prohibit or limit in any material respect the ability of Buyer or any of its Affiliates to vote, receive dividends with respect to, or otherwise exercise ownership rights with respect to the capital stock of the Company beneficially owned by it; (iii) seeking to compel Buyer or any Affiliates thereof to Transfer, or hold in a different manner than currently held, any shares of the capital stock of the Company; (iv) seeking to alter the structure through which the Restricted Parties and/or Non-Party Buyer Affiliates hold their interests in the Company; or (v) threatening in writing to initiate legal proceedings for the purpose of taking any of the actions described in clauses (i) through (iv) above.
          Section 7.02 Conditions to the Obligations of the Company. The obligations of the Company to consummate the Transaction shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions, any of which, to the extent permitted by Applicable Laws, may be waived by the Company:

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          (a) Payment by Buyer. Buyer shall have delivered the Class B Purchase Price and, if any True-Up Shares are to be issued at Closing, the True-Up Purchase Price.
          (b) Registration Rights Agreement. Buyer shall have duly executed and delivered the Registration Rights Agreement.
          (c) Investor Rights Agreement. Each of the Restricted Parties, shall have duly executed and delivered the Investor Rights Agreement.
          (d) Closing Opinions; Certificates. The Company shall have received the closing opinions of Baker Botts L.L.P. (as to matters of New York and United States law) Harney Westwood and Riegels (as to matters of British Virgin Islands law), and in-house counsel for Interros (as to matters of Russian law), in each case dated the Closing Date and in a form and substance previously agreed to by the Company and the maker thereof, together with such other certificates, documents, and further assurances of Buyer as the Company shall reasonably request and which are reasonable and customary for a transaction such as the Transaction.
          (e) Secretary’s Certificate. The Company shall have received from Buyer’s Secretary (or equivalent officer or agent) a certificate having attached thereto (i) resolutions approved by Buyer’s sole director authorizing the transactions contemplated hereby; and (ii) resolutions approved by Buyer’s stockholders authorizing the transactions contemplated hereby.
          (f) Representations and Warranties. The representations and warranties of Buyer shall have been true and correct as of the date hereof and shall be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), and the Company shall have received a certificate from the sole director of Buyer to such effect.
          (g) Covenants. Buyer shall have performed in all material respects all obligations and shall have complied in all material respects with all agreements and covenants of Buyer to be performed or complied with by it under this Agreement, and the Company shall have received a certificate from the sole director of Buyer to such effect.
          (h) DTE Transaction. The DTE Transaction shall have been consummated.
          (i) Schedule 5.13. Buyer shall have delivered to the Company a schedule listing, to Buyer’s actual knowledge after investigation, each Affiliate of a Restricted Party which, as of the Closing Date, is an entity that produces fuel cell products, Competing Products, or gas or oil fired heating appliances for residential or commercial use.
          Section 7.03 Conditions to the Obligations of Buyer. The obligations of Buyer to consummate the Transaction shall be subject to the fulfillment, at or prior to the Closing, of each of the following conditions, any of which, to the extent permitted by Applicable Laws, may be waived by Buyer:

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          (a) Certificates. The Company shall have duly executed and delivered to Buyer the Class B Certificate and, if any True-Up Shares are to be issued at Closing, the True-Up Share Certificate.
          (b) No Material Adverse Effect. Since the date hereof, there shall not have been a Company Material Adverse Effect.
          (c) Filing of the Certificate of Designations. The Certificate of Designations shall have been duly adopted and executed by the Company and duly filed with the Secretary of State of the State of Delaware in accordance with the DGCL, and the Company shall have delivered Buyer a copy of the executed Certificate of Designations as certified by the office of the Secretary of State of the State of Delaware.
          (d) Effectiveness of Amendments to the Company’s By-laws. The Company shall have adopted the Amended and Restated By-laws of Plug Power Inc. attached hereto as Exhibit D (the “Amended By-Laws”).
          (e) Requisite Board Vacancies. The requisite number of members of the Company Board shall have resigned or shall have been removed by the Company such that there are 4 vacancies on the Company Board.
          (f) Registration Rights Agreement. The Company shall have duly executed and delivered the Registration Rights Agreement.
          (g) Investor Rights Agreement. The Company shall have duly executed and delivered the Investor Rights Agreement.
          (h) Opinion of Counsel. Buyer shall have received the closing opinion of Goodwin Procter LLP, counsel to the Company, dated the Closing Date, in a form and substance previously agreed to by the Buyer and Goodwin Procter LLP, together with such other certificates, documents and further assurances of the Company as Buyer shall reasonably request and which are reasonable and customary for a transaction such as the Transaction.
          (i) Secretary’s Certificate. Buyer shall have received from the Company’s Secretary, a certificate having attached thereto (i) resolutions approved by the Company Board authorizing the transactions contemplated hereby, including the (A) filing of the Certificate of Designations and (B) approval of the Amended By-laws substantively in the form set forth in Exhibit D, and (ii) resolutions approved by the Company’s stockholders authorizing the consummation of the Transaction.
          (j) Representations and Warranties. The representations and warranties of the Company shall have been true and correct as of the date hereof and shall be true and correct as of the Closing Date with the same effect as though such representations and warranties had been made on and as of such date (other than any such representation or warranty that is made by its terms as of a specified date, which shall be true and correct as of such specified date), and Buyer shall have received a certificate from the Company’s President to such effect.

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          (k) Covenants. The Company shall have performed in all material respects all obligations, and shall have complied in all material respects with all agreements and covenants of the Company to be performed or complied with by it under this Agreement (including the covenants contained in Section 6.12), and Buyer shall have received a certificate from the Company’s President to such effect.
          (l) Company Disclosure Letter. The Company shall have delivered to Buyer a disclosure letter (the “Company Disclosure Letter”), dated as of the Closing Date and duly executed by the Company’s Chief Financial Officer, that (w) updates all of the information contained in Section 4.08(b) as of the Closing Date; (x) describes in reasonable detail all issuances of the Company’s capital stock or securities issuable into or exercisable for shares of the Company’s capital stock made after the date hereof and prior to or on the Closing Date (other than issuances pursuant to this Agreement); (y) provides a schedule listing the issuance of Pre-Closing EIP Shares and provides reasonable detail regarding the calculation of the same, and such Company Disclosure Letter shall be true and correct; and (z) sets forth the calculation of the number of True-Up Shares.
ARTICLE VIII
TERMINATION
          Section 8.01 Termination. This Agreement may be terminated and the Transactions may be abandoned at any time prior to the Closing Date:
          (a) by mutual written consent of the Parties duly authorized by the Company Board and sole director of Buyer;
          (b) by either Buyer or the Company, if the Closing shall not have occurred on or before September 30, 2006 (the “Termination Date”); provided, however, that the right to terminate this Agreement under this Section 8.01(b) shall not be available to any Party whose failure to fulfill any obligation under this Agreement (including without limitation such Party’s obligations set forth in Section 6.09) has been the cause of, or resulted in, the failure of the Closing to occur on or before the Termination Date; or
          (c) by either Buyer or the Company, if any Governmental Authority (i) shall have issued an order, decree, or ruling or taken any other action (which the Parties shall have used their reasonable best efforts to resist, resolve, or lift, as applicable, in accordance with Section 6.09) restraining, enjoining, or otherwise prohibiting the Transaction, and such order, decree, ruling, or other action shall have become final and nonappealable; or (ii) shall have failed to issue an order, decree, or ruling or to take any other action, and such denial of a request to issue such order, decree, ruling, or take such other action shall have become final and nonappealable (which order, decree, ruling, or other action the Parties shall have used their reasonable best efforts to obtain, in accordance with Section 6.09), in the case of each of clauses (i) and (ii) which is necessary to fulfill the conditions set forth in Sections 7.01(a), 7.01(b), 7.01(c), 7.01(e), and 7.01(f) as applicable; provided, however, that the right to terminate this Agreement under this Section 8.01(c) shall not be available to any Party whose failure to comply with Section 6.09 has been the cause of such action or inaction; or

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          (d) by either Buyer or the Company, if the Company Stockholder Approval shall not have been obtained by reason of the failure to obtain the required vote at the Company Stockholder Meeting; or
          (e) by Buyer, if the Company shall have (i) failed to make the Company Recommendation; (ii) effected a Change in Company Recommendation (or resolved to take any such action), whether or not permitted by the terms hereof; or (iii) breached its obligations under this Agreement by reason of a failure to call the Company Stockholder Meeting in accordance with Section 6.05(a), a failure to prepare and mail to its stockholders the Proxy Statement in accordance with Section 6.05(b), or failing to comply with the provisions of Section 6.06; or
          (f) by Buyer, if the Company shall have materially breached or failed to perform any of its representations, warranties, covenants, or other agreements contained in this Agreement, such that the conditions set forth in Sections 7.03(j) or 7.03(k) are not capable of being satisfied on or before the Termination Date; or
          (g) by Buyer, in accordance with Section 6.06(a); or
          (h) by the Company, if Buyer shall have breached or failed to perform any of its respective representations, warranties, covenants, or other agreements contained in this Agreement, such that the conditions set forth in Sections 7.02(f) or 7.02(g) are not capable of being satisfied on or before the Termination Date; or
          (i) by the Company in accordance with Section 6.06(c), provided that the Company has paid Buyer the Termination Fee and otherwise complied with all of the provisions of Sections 6.06; or
          (j) by the Company or Buyer (x) if the Parties shall have not received the an interpretative letter from NASDAQ in response to the NASDAQ Request prior to the Company Stockholder Meeting, (y) if the NASDAQ Approval Letter is withdrawn, vacated, or otherwise superseded or adversely modified in any manner, or (z) within 5 Business Days after the Parties’ receipt of an interpretative letter from NASDAQ in response to the NASDAQ Request that does not constitute a NASDAQ Approval Letter.
          The Party desiring to terminate this Agreement pursuant to this Section 8.01 (other than pursuant to Section 8.01(a)) shall give written notice of such termination to the other Party.
          Section 8.02 Effect of Termination; Termination Fee.
          (a) Subject to Section 8.02(b), in the event of the termination of this Agreement pursuant to Section 8.01, this Agreement shall forthwith become null and void and have no effect, without any liability on the part of Buyer or the Company and their respective directors, officers, employees, partners, managers, members, or stockholders and all rights and obligations of each Party shall cease, except for the agreements contained in Sections 6.08, 8.02, and Article IX; provided, however, that nothing contained in this Section 8.02 shall relieve either Party from liabilities or damages arising out of any fraud or willful breach by such Party of any of its representations, warranties, or covenants contained in this Agreement.

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          (b) If this Agreement is terminated (i) by the Company pursuant to Section 8.01(i) or (ii) by Buyer pursuant to Section 8.01(e) or Section 8.01(g), then the Company shall promptly pay to Buyer an amount in cash equal to the sum of (A) $5,431,250 (the “Termination Fee”) plus (B) an amount not to exceed, in the aggregate, $2,607,000 for the out-of-pocket expenses of Buyer, including reasonable fees and expenses of financial advisors, outside legal counsel, accountants, experts, and consultants, incurred by Buyer or on their respective behalf in connection with or related to the authorization, preparation, negotiation, execution, and performance of this Agreement and the transactions contemplated hereby (the “Buyer Expenses”, and together with the Termination Fee, the “Liquidated Amount”). Payment of the Termination Fee required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds (A) prior to a termination of this Agreement by the Company under Section 8.01(i) and (B) within three Business Days after the date of termination of this Agreement by Buyer under Section 8.01(e) or Section 8.01(g). Payment of the Buyer Expenses required by this Section 8.02(b) shall be payable by the Company to Buyer by wire transfer of immediately available funds within three Business Days after the date on which Buyer provides the Company with reasonable documentation of such Buyer Expenses. In the event that the Company shall fail to pay the Termination Fee or any Buyer Expenses when due, the Company shall pay the costs and expenses (including legal fees and expenses) incurred in connection with any action, including the prosecution of any lawsuit or other legal action, taken to collect payment, together with interest on such unpaid Termination Fee and Buyer Expenses, commencing on the date that the Termination Fee or such Buyer Expenses became due, at a rate equal to the rate of interest publicly announced by the Bank of New York from time to time, in the City of New York, as such bank’s prime rate plus 1.00%.
          (c) Notwithstanding anything to the contrary in this Agreement, Buyer hereto expressly acknowledges and agrees that, with respect to any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the payment of the Liquidated Amount shall constitute liquidated damages with respect to any claim for damages or any other claim which Buyer would otherwise be entitled to assert against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members, or stockholders, with respect to this Agreement and the transactions contemplated hereby and shall constitute the sole and exclusive remedy available to Buyer. The Parties expressly acknowledge that, in light of the difficulty of accurately determining actual damages with respect to the foregoing upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), the rights to payment under Section 8.02(b): (i) constitute a reasonable estimate of the damages that will be suffered by reason of any such proposed or actual termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g); and (ii) shall be in full and complete satisfaction of any and all damages arising as a result of the foregoing. Except for nonpayment of the amounts set forth in Section 8.02(b), Buyer hereby acknowledges that, upon any termination of this Agreement pursuant to Section 8.01(i), Section 8.01(e), or Section 8.01(g) in circumstances where the Liquidated Amount is payable in accordance with Section 8.02(b), in no event shall Buyer (A) seek to obtain any recovery or judgment against the Company or any of the Company Subsidiaries or any of their respective assets, or against any of their respective directors, officers, employees, partners, managers, members or stockholders, and (B) be entitled to seek or obtain any other damages of any kind, including consequential, indirect, or punitive damages.

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ARTICLE IX
GENERAL PROVISIONS
     Section 9.01 Assignment. This Agreement and the rights and obligations hereunder shall not be assignable, delegable, or otherwise transferable by either Party without the prior written consent of the other Party.
     Section 9.02 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their permitted assigns and nothing herein expressed or implied shall give or be construed to give to any Person (including DTE Foundation, DTE Energy Company, DTE Energy Ventures, Inc., or their respective Affiliates), other than the Parties and their successors and permitted assigns, any legal or equitable rights hereunder.
     Section 9.03 Expenses. Whether or not the Transaction is consummated, and except as otherwise provided this Agreement (including Section 8.02(b)), all fees, costs, and expenses incurred in connection with this Agreement and the Transaction shall be paid by the Party incurring such fees, costs, or expenses.
     Section 9.04 Amendments. No amendment or modification to this Agreement shall be effective unless it shall be in writing and signed by each of the Parties.
     Section 9.05 Notices. All notices, requests, consents and other communications hereunder shall be in writing, in English, shall be delivered (A) if within the United States, by first-class registered or certified airmail, or nationally recognized overnight express courier, postage prepaid, or by facsimile, or (B) if to or from outside the United States, by a recognized international express courier service or facsimile, and shall be deemed given (i) if delivered by first-class registered or certified mail domestic, upon the Business Day received; (ii) if delivered by nationally recognized overnight carrier, 1 Business Day after timely delivery to such carrier; (iii) if delivered by a recognized international express courier service, 2 Business Days after timely delivery to such carrier; (iv) if delivered by facsimile, upon electric confirmation of receipt and shall be addressed as follows, or to such other address or addresses as may have been furnished in writing by a party to another party pursuant to this Section 9.05:
  (i)   if to the Company, to:
PLUG POWER INC.
968 Albany-Shaker Road
Latham, NY 12110
Attention:      General Counsel
Facsimile:       (518) 782-7884
with a copy to (which shall not constitute notice):
GOODWIN PROCTER LLP
Exchange Place

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Boston, MA 02109-2881
Attention:      Robert P. Whalen, Jr.
Facsimile:       (617) 523-1231
  (ii)   if to Buyer, to:
SMART HYDROGEN INC.
c/o ZAO Interros Holding Company
9 Bolshaya Yakimanka Street
Moscow 119180, Russia
Attention:      Marianna Zakharova
Facsimile:       +7 495 785 6362
with a copy to (which shall not constitute notice):
BAKER BOTTS L.L.P.
The Warner
1299 Pennsylvania Avenue, N.W.
Washington, DC 20004-2400
Attention:      Gregory J. Golden
Facsimile:       (202) 585-1025
     Section 9.06 Exhibits. All Exhibits annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
     Section 9.07 Certain Acknowledgements.
          (a) No Violation of Company NDA. The Parties hereby acknowledge that neither the execution and delivery by Buyer of this Agreement, nor the consummation of the Transaction by the Buyer, shall, in and of itself, constitute a violation of the Company NDA.
          (b) Independence of Class B Directors. The Parties hereby acknowledge that, for such time that the holders of a majority of the outstanding Shares are provided the right to appoint any Class B Directors pursuant to the Investors Rights Agreement, the fact that the Class B Directors are appointed in such manner shall not, in and of itself, cause a Class B Director to be not independent under applicable NASD rules.
     Section 9.08 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Applicable Laws or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transaction is not affected in any manner materially adverse to either Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transaction is consummated as originally contemplated to the greatest extent possible.

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     Section 9.09 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of the Parties to comply with any obligation, covenant, agreement, or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Whenever this Agreement requires or permits consent by or on behalf of a Party, such consent shall be given in writing in a manner consistent with the requirements for a waiver of compliance as set forth in this Section 9.09.
     Section 9.10 Entire Agreement; Termination of Term Sheet. The Transaction Agreements embody the entire agreement and understanding of the Parties in respect of the Transaction. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to herein or therein. The Transaction Agreements supersede all prior agreements and understandings between the Parties with respect to Transaction, including any and all term sheets between Buyer and the Company, but excluding the Company NDA and Buyer NDA, which shall continue in full force and effect until terminated in accordance with the terms thereof or pursuant to the Investor Rights Agreement.
     Section 9.11 Dispute Resolution. (a) The Parties shall endeavor to resolve any dispute, claim, or controversy arising out of or relating to this Agreement (including, but not limited to, the negotiation, validity, performance breach or termination thereof) (each, a “Dispute”) by non-binding mediation under the CPR Mediation Procedure then currently in effect. The mediator will be selected upon mutual agreement of the Parties. Any Dispute which remains unresolved 30 days after the appointment of a mediator (or if the Parties are unable to agree upon a mediator within 30 days after a Party notifies another Party of a Dispute in writing), shall be finally resolved by arbitration in accordance with the CPR Rules for Non-Administered Arbitration, Revised and Effective June 15, 2005 (the “Rules”). A tribunal of three arbitrators will preside over any Dispute(s) (the “Tribunal”). Each Party shall appoint one arbitrator to the Tribunal. Within 30 days of the appointment of the second arbitrator, the two party-appointed arbitrators shall appoint a third arbitrator, who shall chair the Tribunal (the “Chairperson”). In the event the Party-appointed arbitrators are unable to agree on the Chairperson, the Chairperson will be selected as provided in Rule 6 of the Rules. Under no circumstances shall the Chairperson be either an American or Russian citizen. The place of arbitration shall be New York, New York and the language of the arbitration shall be English. Upon the request of a Party, there shall be simultaneous translation of all communications with the Tribunal into English or Russian, as the case may be. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and judgment upon or other enforcement of the award rendered by the Tribunal may be entered by the United States District Court for the Southern District of New York.
          (a) Unless otherwise agreed by the Parties, the Tribunal’s decision and award shall be made and delivered within 30 days of the conclusion of the arbitration. The Parties acknowledge that the Tribunal shall have the authority, with respect to any Dispute, to provide any and all relief, whether legal, equitable, or otherwise, and award any damages or remedy that a federal court in New York could provide or award with respect to such Dispute. The Tribunal shall have no jurisdiction, power, or authority to decide or award punitive or exemplary

32


 

damages. It is the expressed intention of the Parties to mutually waive the right to seek or recover such damages from the other.
          (b) The Parties shall share equally the costs of an arbitration pursuant to this Section 9.11, except as otherwise provided herein. The Tribunal may in its discretion assess costs and expenses (including the reasonable legal fees and expenses of the prevailing Party) against any Party to a proceeding. Any Party unsuccessfully refusing to comply with an award of the Tribunal shall be liable for costs and expenses, including reasonable attorneys’ fees, incurred by the other Party in enforcing the award.
          (c) Each Party irrevocably waives any objection to proceeding before the Tribunal in New York, to the extent provided in this Section 9.11, based upon lack of personal jurisdiction or to the laying of venue and further irrevocably and unconditionally waives and agrees not to make a claim that arbitration in accordance with these provisions has been brought in an inconvenient forum. Each of the Parties hereby consents to service of notice for any arbitration pursuant to this Section 9.11 as provided for in Rule 2 of the Rules.
          (d) Notwithstanding the foregoing, the Parties hereby consent to the sole and exclusive jurisdiction of the United States District Court for the Southern District of New York for any action, suit, or proceeding to compel arbitration pursuant to this Section 9.11, seek a preliminary injunction or other provisional judicial relief in aid of arbitration with respect to any Dispute, or obtain judgment upon or other enforcement of any award or decision rendered by the Tribunal pursuant to this Section 9.11, and the Parties agree that the foregoing provisions requiring non-binding mediation and arbitration of Disputes shall not apply to any such action, suit or proceeding. The Parties further hereby irrevocably and unconditionally waive any objection to the laying of venue of any such action, suit or proceeding in the United States District Court for the Southern District of New York and hereby further irrevocably and unconditionally waive and agree not to plead or claim in such court that any such action, suit or proceeding brought in such court has been brought in an inconvenient forum. Each of the Parties further agrees that service of any process, summons, notice or document by U.S. registered mail (with respect to any address in the United States) or by a recognized international express courier service, including, without limitation, International Federal Express (with respect to any address outside of the United States) to such Party’s then current address for notice pursuant to Section 9.05 shall be effective service of process for any action, suit, or proceeding brought against it in such court. Each of the Parties agrees that its or his submission to jurisdiction and its or his consent to service of process in the manner described above is made for the express benefit of the other Parties.
          (e) The procedures specified in this Section 9.11 shall be the sole and exclusive procedures for the resolution of Disputes.
     Section 9.12 Governing Law. This Agreement shall be governed by and construed in accordance with, the internal laws of the State of New York applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State.

33


 

     Section 9.13 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
     Section 9.14 Counterparts. This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement, and shall become effective when such counterparts have been signed by each of the Parties and delivered to the other Party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

34


 

          IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed as of the date first written above.
         
 
       
 
       
 
       
    PLUG POWER INC.
 
       
 
       
 
  By:   /s/ Roger Saillant
 
       
 
       
 
  Name:   Roger Saillant
 
       
 
       
 
  Title:   CEO and President
 
       
 
       
 
       
 
       
    SMART HYDROGEN INC.
 
       
 
       
 
  By:   /s/ Sergey Polikarpov
 
       
 
      Sergey Polikarpov
 
      Director
[Signature page to Stock Purchase Agreement]

 

EX-99.H 9 h35166exv99wh.htm LOCK-UP LETTER AGREEMENT exv99wh
 

EXHIBIT H
LOCK-UP LETTER AGREEMENT
 
PLUG POWER INC.
968 Albany Shaker Road
Latham, NY 12110
Dear Sirs and Mesdames:
     Reference is made to that certain Stock Purchase Agreement (the “Company Stock Purchase Agreement”) dated as of April 10, 2006 by and between Smart Hydrogen, Inc. (the “Buyer”) and Plug Power Inc., a Delaware corporation (the “Company”).
     In consideration of the execution of the Company Stock Purchase Agreement by the Buyer, and for other good and valuable consideration, DTE Energy Company and DTE Energy Ventures, Inc. (collectively, “DTE”) hereby irrevocably agree that, without the prior written consent of the Company, DTE will not, directly or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or enter into any transaction or device that is designed to, or could be expected to, result in the disposition by any person at any time in the future of) any shares of common stock, par value $0.01 per share (the “Common Stock”), of the Company (including, without limitation, shares of Common Stock that may be deemed to be beneficially owned by DTE in accordance with the rules and regulations of the Securities and Exchange Commission and shares of Common Stock that may be issued upon exercise of any option or warrant) or securities convertible into or exchangeable for Common Stock owned by DTE on the date of execution of this Lock-Up Letter Agreement or on the date of the purchase of the Sale Shares (as defined below) by the Buyer or (2) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of such shares of Common Stock, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or other securities, in cash or otherwise, for a 12-month period commencing on the date appearing on the signature page hereof (the “Lock-Up Period”).
     Notwithstanding the foregoing, DTE may transfer shares of Common Stock or securities convertible into or exchangeable for Common Stock, to an “affiliate,” as such term is defined in Rule 501(a) of the General Rules and Regulations under the Securities Act of 1933, as amended from time to time; provided that in any such case, it shall be a condition to the transfer that the transferee execute an agreement stating that the transferee is receiving and holding such capital stock subject to the provisions of this Lock-Up Letter Agreement and there shall be no further transfer of such capital stock except in accordance with this agreement.
     Notwithstanding the foregoing, nothing in this Lock-Up Letter Agreement will prohibit (i) any transaction with respect to shares of Common Stock acquired after the date of the purchase of the Sale Shares by the Buyer (other than upon exercise or conversion of any option, warrant or other securities outstanding as of the date hereof or on the date of the purchase of the Sale Shares (as defined below), (ii) the sale of Common Stock subsequent to a Change of Control, (iii) the sale of Common Stock subsequent to the announcement by the Company of its intention to enter into a going private transaction, (iv) the sale of Common Stock pursuant to the cashless exercise of a stock option to purchase shares of Common Stock, (v) the sale of Common Stock pursuant to a tender offer, which has been recommended by the Company’s Board of Directors, for fifty percent (50%) or more of the Company’s capital stock, (vi) sales of a pro rata portion of the shares of Common Stock then held by DTE equal to the pro rata portion of the shares of capital stock of the Company held by the Buyer that the Buyer sells during the Lock-Up Period to any person other than an affiliate of the Buyer if the Company has either permitted such sale or recognized such sale on the Company’s books and records without initiating legal proceedings against the

 


 

2
 
Buyer, (vii) gifts of Common Stock to DTE Energy Foundation (“DTE Foundation”), provided that in the case of such a gift, it shall be a condition to the gift that DTE Foundation execute an agreement stating that DTE Foundation is receiving and holding such Common Stock subject to the provisions of this Lock-Up Letter Agreement and there shall be no further transfer of such Common Stock except in accordance with this agreement, or (viii) the sale of Common Stock subsequent to the public disclosure by any person or acknowledgement by the Company of the initiation or existence of any material litigation between the Buyer and the Company arising after the closing of the transactions described in the Company Purchase Agreement. For the purposes of this Lock-Up Letter Agreement, a “Change of Control” shall mean the consummation of (A) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (B) a merger, reorganization or consolidation in which the outstanding shares of Common Stock are converted into or exchanged for securities of the successor entity and the holders of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the successor entity immediately upon completion of such transaction, or (C) any other transaction in which the holders of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or a successor entity immediately upon completion of the transaction.
     In furtherance of the foregoing, the Company and its Transfer Agent are hereby authorized to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Lock-Up Letter Agreement.
     In addition, DTE hereby waives any rights DTE may have, if any, to require registration of any shares of Common Stock held by DTE under any registration statement filed by the Company during the Lock-Up Period.
     This Lock-Up Letter Agreement will automatically terminate and be of no further effect upon the termination of the Stock Purchase Agreement dated as of April 10, 2006 by and between the Buyer and DTE Foundation providing for the purchase by the Buyer from DTE Foundation of 1,825,000 shares (the “Sale Shares”) of Common Stock before the sale of any Sale Shares to the Buyer.
     DTE and the Company each hereby waives its right in any legal proceeding to assert that this Lock-Up Letter Agreement is unenforceable due to lack of consideration. DTE represents and warrants that it has full power and authority to enter into this Lock-Up Letter Agreement and that, upon request, it will execute any additional documents necessary in connection with the enforcement hereof. Any obligations of DTE shall be binding upon the heirs, personal representatives, successors and assigns of DTE.
[Remainder of Page Intentionally Left Blank]

 


 

             
    Very truly yours,
 
           
    DTE Energy Company
 
           
 
  By:   /s/ David E. Meador
         
 
      Name:   David E. Meador
 
           
 
      Title:   Executive VP and CFO
 
           
 
           
    DTE Energy Ventures, Inc.
 
           
 
  By:   /s/ David E. Meador
         
 
      Name:   David E. Meador
 
           
 
      Title:   President
 
           
Dated: April 10, 2006
ACKNOWLEDGED AND AGREED:
Plug Power Inc.
         
By
  /s/ Roger Saillant    
 
       
 
  Name: Roger Saillant    
 
  Title:   CEO and President    

 

EX-99.I 10 h35166exv99wi.htm DISCLOSURE LETTER exv99wi
 

EXHIBIT I
PRIVATE AND CONFIDENTIAL
April 10, 2006
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York 12110
Attention: President
      Re: Disclosure Letter in connection with that certain Stock Purchase Agreement (the “Agreement”), dated as of April 10, 2006, by and between Plug Power Inc. (the “Company”) and Smart Hydrogen Inc. (“Buyer”)
     Pursuant to Section 5.12 of the Agreement, Buyer makes the following disclosures to the Company as of the date hereof:
  1.   Buyer is controlled by Clayburn and Branton, each of which owns 49.995% of the total outstanding equity and voting interests of Buyer.
 
  2.   Clayburn is wholly-owned and controlled by Norilsk Nickel and other wholly-owned and controlled subsidiaries of Norilsk Nickel. Norilsk Nickel is controlled by Vladimir O. Potanin and Mikhail D. Prokhorov (collectively, the “Interros Principals”), each of whom owns, as of the date of this letter, 27.39% (either directly or indirectly through one or more entities beneficially wholly-owned and controlled by such Person) of the total outstanding equity and voting interests of Norilsk Nickel. As of the Closing Date, Mr. Potanin and Mr. Prokhorov will collectively own in excess to 50% of the outstanding equity and voting interests of Norilsk Nickel.
 
  3.   Interros is controlled by Mr. Potanin and Mr. Prokhorov, each of which owns 49.9967% (either directly or indirectly through one or more entities beneficially wholly owned and controlled by such Person) of the total outstanding equity and voting interests of Interros.
 
  4.   Branton is controlled by Mr. Potanin and Mr. Prokhorov, each of which owns 49.9967% (either directly or indirectly through one or more entities beneficially wholly owned and controlled by such Person) of the total outstanding equity and voting interests of Branton.
     Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the Agreement. This letter constitutes the “Buyer Disclosure Letter” within the meaning of the Agreement. This letter and all of the information contained herein constitutes “Information” within the meaning of the Buyer NDA. The letter is being provided to the Company in connection with the Transaction and may not be relied upon by any other Person for any other purpose whatsoever.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 


 

         
    Very truly yours,
 
       
    SMART HYDROGEN INC.
 
       
 
       
 
  By:   /s/ Sergey Polikarpov
 
       
 
      Sergey Polikarpov
 
      Director
 
       
 
       
ACKNOWLEDGED AND ACCEPTED:
PLUG POWER INC.
         
By:
  /s/ Roger Saillant    
 
       
 
       
Name:
  Roger Saillant    
 
       
 
       
Title:
  CEO and President    
 
       
Date: April 10, 2006
[Signature page to Smart Hydrogen Disclosure Letter]

 

EX-99.J 11 h35166exv99wj.htm LOAN AGREEMENT exv99wj
 

EXHIBIT J
LOAN AGREEMENT
This Agreement is made as of December 28, 2005 between:
Branton Limited, a company organized and existing under the laws of Commonwealth of the Bahamas (registration number 125964 B) and having its registered office at Kings Court, 1st floor, Bay Street, P.O. Box N-3944, Nassau, Bahamas (the “Lender").
Smart Hydrogen Inc., a company organised and existing under the laws of British Virgin Islands and having its registered office at P.O. Box 3540, Road Town, Tortola, British Virgin Islands (the “Borrower") and
Background
The Lender is willing to make available to the Borrower a non-interest loan in the amount US$14,116,440 (fourteen million one hundred and sixteen thousand four hundred and forty US dollars) on the terms and conditions set out in this Agreement.
It is agreed as follows:
     
1.
  Interpretation
 
   
1.1
  Definitions
 
   
 
  In this Agreement:
 
   
 
  “Business Day” means a day (other than a Saturday or Sunday) on which commercial banks are open in the Russian Federation and the City of New York;
 
   
 
  “Repayment Date” means the date of repayment of the Loan by the Borrower to the Lender but not later then 6 (six) month after the date hereof.
 
   
1.2
  Construction
  (a)   Any reference to the singular number includes a reference to the plural and vice versa.
 
  (b)   Any reference to a clause is a reference to a clause of this Agreement.
 
  (c)   Headings to clauses and titles of sub-clauses are for convenience only and shall not affect the meaning and interpretation hereof.
     
2.
  The Loan
 
   
2.1
  Amount: The Lender grants to the Borrower a non-interest loan of US$14,116,440 (fourteen million one hundred and sixteen thousand four hundred and forty US dollars) (the “Loan") to be drawn not later than one month after the date of this Agreement in one lump sum at the request of the Borrower.
 
   
2.2
  Purpose: The Borrower intends to acquire 2,714,700 shares (the “Shares”) of Plug Power Inc. incorporated under the laws of Delaware and to enter into the Stock

 


 

Purchase Agreement (the “Stock Purchase Agreement”). The potential seller of the Shares and party of the Stock Purchase Agreement is GE POWER SYSTEMS EQUITIES INC.
     
2.3
  Immediately upon the Borrower’s request the Lender will transfer the full amount of the Loan as a purchase price under the Stock Purchase Agreement on behalf of the Borrower to the following bank account:
         
 
  Bank Name:


SWIFT:
ABA No
Beneficiary Name:
Account No.:
Contact Name:
  Deutsche Bank Trust Company Americas
PO Box 318, Church Street Station
New York, NY 10008-0318
BKTRUS33
021001033
GE Packaged Power, Inc.
00-388-615
Brian Barlund
     
3.
  Repayment
 
   
 
  The Borrower shall repay the Loan to the Lender on the Repayment Date. All payments shall be made in US dollars by bank transfer on the account specified by the Lender. The Loan shall be considered to be repaid from the date of deposit of the Loan to the Lender’s account.
 
   
4.
  Taxes
 
   
4.1
  Payments to be free and clear: All sums payable by the Borrower under this Agreement shall be paid free of any restriction or condition and free and clear of and (except to the extent required by law) without any deduction or withholding, whether for or on account of tax, by way of set-off or otherwise.
 
   
4.2
  Grossing-up of Payments:
  (a)   In the event of any such deduction or withholding from any payment being required by law, the Borrower shall at the same time pay such additional amount as is necessary to ensure that the Lender receives and retains a net sum equal to what it would have received and so retained had no such deduction or withholding been required or made.
 
  (b)   If the Borrower or any other person (whether or not a party to, or on behalf of a party to, this Agreement) must at any time pay any tax or other amount on, or calculated by reference to, any sum received or receivable (including any sum received or receivable under this Clause 4.2(b)) by the Lender under this Agreement, the Borrower shall pay or procure the payment of that tax or other amount before any interest or penalty becomes payable or, if that tax or other amount is payable and paid by the Lender, shall reimburse it on demand for the amount paid by it.
 
  (c)   As soon as practicable after paying any sum from which it is required by law to make any deduction or withholding, the Borrower shall promptly deliver to the Lender evidence satisfactory to the Lender of that deduction, withholding or payment and (where remittance is required) of the remittance thereof to the relevant taxing or other authority.

 


 

  (d)   As soon as the Borrower is aware that any such deduction, withholding or payment is required (or of any change in any such requirement), it shall notify the Lender.
     
5.
  Late Payment and Set-off
 
   
5.1
  Default interest: The Borrower agrees to pay penalty on all amounts unpaid under this Agreement after the due date for payment. This penalty will start to be accrued on the first day following the Repayment Date. The rate of penalty applicable will be a rate per annum equal to 1.0% plus LIBOR accrued on due amount. This penalty shall accrue from day to day and be calculated on the basis of a year of 360 (three hundred and sixty) days and the actual number of days elapsed.
 
   
5.2.
  Indemnity: If the Borrower fails to make a payment on the due date, the Borrower shall reimburse the Lender for the losses and expenses (including loss of profit) the Lender incurs, or will incur, as a result. The computation of these losses and expenses will take into account any amount received under Clause 5.2.
 
   
6.
  Non-compliance or Non-performance
 
   
6.1.
  This Agreement may be terminated by written notice by the Lender to the Borrower at any time including but not limited to the following case if (i) any of the conditions of this Agreement to be complied with at or before the Repayment Date by the Borrower to whom such notice is addressed shall have been breached or become incapable of fulfilment, (ii) such non-compliance has not been cured by the Borrower as a breaching party within 10 (ten) Business Days after receipt of the notice of termination referred to in this Clause 6.1, and (iii) such non-compliance shall not have been waived by the Lender giving notice of termination. The Borrower has no right to claim damages or other relief in connection with such termination. The sum of the Loan shall be paid by the Borrower within 10 (ten) Business Days after delivering such written notice to the Borrower.
 
   
7.
  Expenses and Stamp Duty
 
   
7.1
  Whether or not the Loan is made, the Borrower shall pay:
  (a)   Enforcement Expenses: on demand, all costs and expenses (including taxes thereon and legal fees) reasonably incurred by the Lender in the administration of or in protecting or enforcing any right under this Agreement and/or any such amendment, supplement, waiver or consent; and
 
  (b)   Stamp Duty: promptly, and in any event before any penalty becomes payable, any stamp, documentary, registration or similar tax payable in connection with the entry into, registration, performance, enforcement or admissibility in evidence of this Agreement and/or any such amendment, supplement, waiver or consent, and shall indemnity the Lender against any liability with respect to or resulting from any delay in paying or omission to pay any such tax.

 


 

     
8.
  Novation and Assignment
 
   
8.1
  Benefit and Burden of this Agreement: This Agreement shall benefit and bind the parties, their assignees and their respective successors. Any reference in this Agreement to any party shall be construed accordingly.
 
   
8.2.
  The Borrower: The Borrower may not assign or transfer all or part of its rights or obligations under this Agreement.
 
   
8.3.
  The Lender: The Lender may at any time grant a participation in or make an assignment or transfer or otherwise dispose of the whole or any part or parts of its rights and benefits under this Agreement without the consent of the Borrower.
 
   
9.
  Representations and Warranties
 
   
9.1.
  Organization and Authority: The Borrower is a limited liability company duly organized and validly existing under the laws of the Commonwealth of the Bahamas, with full corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby.
 
   
9.2.
  Due Authorization, Binding Obligation: The execution, delivery and performance by the Borrower of this Agreement have been duly authorized by all necessary corporate action on the part of the Borrower. This Agreement has been duly and validly executed and delivered by the Borrower. Upon execution by the Lender, this Agreement shall constitute the valid and binding obligations of the Borrower, enforceable in accordance with its terms, subject to the qualification, however, that the enforcement of the rights and remedies created hereby is subject to bankruptcy and other similar laws of general application relating to or affecting the rights and remedies of creditors and that the availability of the remedy of specific enforcement or of injunctive relief is subject to the discretion of the court before which any proceeding therefore may be brought.
 
   
9.3.
  No Material Misstatement or Omission: No representation or warranty of the Borrower in this Agreement, nor any certificate furnished by the Borrower in connection herewith contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained herein or therein, not misleading.
 
   
10.
  Remedies, Waivers, Amendments and Consents
 
   
10.1.
  No Implied Waivers, Remedies Cumulative: No failure on the part of the Lender to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).

 


 

     
10.2.
  Amendments, Waivers and Consents: This Agreement constitute the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior agreements and understandings, whether oral or written, relating to the subject matter hereof. Any provision of this Agreement may be amended or supplemented only if the Borrower and the Lender so agree in writing and any provision of this Agreement may be waived before or after it occurs only if the Lender so agrees in writing. Any consent by the Lender under any provision of this Agreement must be in writing. Any such waiver or consent may be given subject to any conditions thought fit by the person giving it and shall be effective only in the instance and for the purpose for which it is given.
 
   
11.
  Communications
 
   
11.1
  Addresses: Any notice, request, consent, waiver or other communication required or permitted hereunder shall be effective only if it is in writing and personally delivered or sent, postage prepaid, by registered or certified mail, return receipt requested, or by recognized overnight courier service, postage or other charges prepaid, and shall be deemed given when so delivered by hand or when received if sent by mail or by courier, as follows:
If to the Lender:
Address:      Branton Limited
Kings Court, 1st floor, Bay Street, P.O. Box N-3944, Nassau, Bahamas
Attention: Director
If to the Borrower:
Address:      Smart Hydrogen Inc.,
P.O. Box 3540, Road Town, Tortola, British Virgin Islands
Attention: Director
or to such other person, address or facsimile number as the addressee may have specified in a notice duly given to the sender as provided herein.
     
11.2
  Deemed Delivery: Any communication from the Borrower shall be irrevocable, and shall not be effective until received by the Lender. Any other communication to any person shall be deemed to be received by that person (a) if sent by facsimile on that Business Day and evidence of transmission is received or (b) in any other case, when left at the address required by Clause 11.1 or on the second Business Day after being put in the post with postage prepaid and in a duly addressed envelope to it at that address.
 
   
12.
  Partial Invalidity
 
   
12.1.
  The illegality, invalidity or unenforceability of any provision of this Agreement under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision.

 


 

     
12.2.
  Survival: The representations, warranties and covenants set forth in this Agreement shall survive the Repayment Date, and the liability for breach of any representations and warranties shall survive for a period of 3 (three) years following the Repayment Date.
 
   
12.3.
  Severability: If any provision of this Agreement shall be adjudged void or unenforceable, the same shall not affect the validity of the Agreement as a whole. In this event, to the extent practicable under the circumstances, the Parties shall negotiate in good faith to replace the void, illegal or unenforceable provision with a valid, legal and enforceable provision which corresponds as far as possible to the spirit and purpose of the void, illegal or unenforceable provision.
 
   
13.
  Governing Law and Jurisdiction
 
   
13.1.
  Governing Law: This Agreement shall be governed by and construed in accordance with the law of England.
 
   
13.2
  Arbitration: Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to London Court of International Arbitration (“LCIA”) and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this Clause 13.2. The number of arbitrators shall be three. The place of arbitration shall be London, England. The language to be used in the arbitral proceedings shall be English.
 
   
14.
  Miscellaneous
 
   
14.1.
  Counterparts: This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
 
   
14.2.
  Waiver, Requirement of Writing: This Agreement may not be changed, or any performance, term or condition waived in whole or in part, except by a writing signed by the Party against whom enforcement of the change or waiver is sought. Any term or condition of this Agreement may be waived at any time by the Party entitled to the benefit thereof. No delay or failure on the part of any Party in exercising any rights hereunder, and no partial or single exercise thereof, will constitute a waiver of such rights or of any other rights hereunder.
 
   
14.3.
  Expenses: Each of the Parties shall pay, without right of reimbursement from the other Party, all the costs incurred by it incident to the preparation, execution and delivery of this Agreement and the performance of its obligations hereunder, whether or not the transactions contemplated by this Agreement shall be consummated.
 
   
14.4.
  Confidentiality: The Parties shall, and shall cause each of their representatives, agents and employees, to (i) maintain in confidence any and all information concerning this Agreement and each other and (ii) refrain from using any and all such information for their own benefit or in competition with or otherwise to the detriment of the Lender or the Borrower. It is understood that the Parties shall have no liability hereunder for disclosure or use of any such information which (i) is in or, through no fault of the Borrower or the Lender, their representatives, agents or employees, comes into the public domain, or (ii) was acquired by the Borrower or the Lender from other sources

 


 

after the execution of this Agreement, provided such sources are not, to the Borrower’s or the Lender’s knowledge, bound by any confidentiality agreement with the Lender or the Borrower, or (iii) the Borrower or the Lender is legally required to disclose pursuant to a request or obligation to any governmental entity or in accordance with any applicable law or as otherwise advised by legal counsel.
     
14.5.
  Public Announcements: Except as may be required by law or regulations of securities exchanges, none of the Parties shall make any press release or public announcement with respect to the transactions contemplated hereby without (a) in the case of the Borrower, obtaining the prior written approval of the Lender and (b) in the case of the Lender, obtaining the prior written approval of the Borrower. Approvals under this Clause 14.5 shall not be unreasonably withheld or delayed.
This Agreement has been entered into on the date stated at the beginning.
         
Signed by
for and on behalf of
Smart Hydrogen Inc.
   
 
       
By:
  /s/ Sergey Polikarpov
 
Name: Sergey Polikarpov
   
 
  Title: Director    
 
       
Signed by
for and on behalf of
Branton Limited
   
 
       
By:
  /s/ Marie Lambrianidou
 
Name: Maria Lambrianidou
   
 
  Title: Director    

 

EX-99.K 12 h35166exv99wk.htm AGREEMENT RELATING TO JOINT FILING OF SCHEDULE 13D exv99wk
 

EXHIBIT K
AGREEMENT RELATING TO JOINT FILING OF SCHEDULE 13D
     The undersigned hereby agree that a joint statement on Schedule 13D be filed on behalf of all of the undersigned with respect to the securities of Plug Power Inc.
Date: April 20, 2006
             
    SMART HYDROGEN INC.    
 
           
 
  By:   /s/ Sergey Polikarpov    
 
           
 
           
 
  Name:   Sergey Polikarpov    
 
           
 
           
 
  Title:   Director    
 
           
 
           
 
           
    MMC NORILSK NICKEL    
 
           
 
  By:   /s/ Mikhail D. Prokhorov    
 
           
 
           
 
  Name:   Mikhail D. Prokhorov    
 
           
 
           
 
  Title:   CEO and Chairman of
the Management Board
   
 
           
 
           
 
           
    CLAYBURN DEVELOPMENT INC.    
 
           
 
  By:   /s/ Sergey Gorskiy    
 
           
 
           
 
  Name:   Sergey Gorskiy    
 
           
 
           
 
  Title:   Attorney-in-Fact    
 
           
 
           
 
           
    BRANTON LIMITED    
 
           
 
  By:   /s/ Maria Lambrianidou    
 
           
 
           
 
  Name:   Maria Lambrianidou    
 
           
 
           
 
  Title:   Director    
 
           

 


 

             
    MIKHAIL D. PROKHOROV    
 
           
 
  By:   /s/ Mikhail D. Prokhorov    
 
           
 
           
 
  Name:   Mikhail D. Prokhorov    
 
           
 
           
 
           
    VLADIMIR O. POTANIN    
 
           
 
  By:   /s/ Vladimir O. Potanin    
 
           
 
           
 
  Name:   Vladimir O. Potanin    
 
           

 

EX-99.L 13 h35166exv99wl.htm POWER OF ATTORNEY BY CLAYBURN DEVELOPMENT INC. exv99wl
 

EXHIBIT L
POWER OF ATTORNEY
We, Clayburn Development Inc., an International Business Company incorporated under the laws of the British Virgin Islands with company number IBC NO. 394608 (the “Company”), hereby appoint Mr. Sergey Gorskiy, holder of passport series 60 No. 4536009, issued by RUVD 675 on April 30, 2003, residing at Kostas D. Pitsillidi, HAWAII SUNTAN COMPLEX BLOCK 1, Flat/Office 45, Agios Athanasios, P.C. 4103, Limassol, Cyprus to be our true and lawful attorney (the “Attorney”) and in our name and on our behalf to vote at the meetings of Smart Hydrogen Inc. (the “Subsidiary Company”) and otherwise exercise all rights of the Company in relation to the Subsidiary Company.
The execution by the Attorney of a document and the doing of any such other acts or things related to the exercise of the Company’s rights as a shareholder in the Subsidiary Company, as the Attorney may in its’ absolute discretion deem appropriate, shall be conclusive evidence that the Attorney deems the amendments, alterations, actions or things referred to above or in this paragraph to be appropriate, necessary or expedient.
We hereby irrevocably undertake at all times to ratify all acts or things the Attorney shall do or purport to do pursuant to this power of attorney.
The Company also confirms authority of the Attorney to have signed on behalf of the Company a Non-Disclosure Agreement with Plug Power Inc., a Delaware corporation (as “Disclosing Party”) and the Subsidiary, the Company, Branton Limited, a company organized under the laws of the Commonwealth of the Bahamas and ZAO Interros Holding Company a company organized under the laws of the Russian Federation dated 19 January 2006 (as “Receiving Parties”).
This Power of Attorney shall constitute an instrument in writing for the purposes of section 72(1) of the International Business Companies Act (Cap 291).
This power of attorney shall be governed by British Virgin Islands law.
As witness the hand of a duly authorised director on behalf of the Company this 16th day of February, 2006.
     
Executed for and on behalf of
  )
CLAYBURN DEVELOPMENT INC.
  )
by the signature of its duly
  )
authorised directors
  )
         
     
  /s/ Pasqual Siegfried    
  Mr. Pasqual Siegfried, Director   
     
 

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