Exhibit 1 Execution Copy
HYDROGENICS CORPORATION
- and -
GENERAL MOTORS CORPORATION
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SHARE SUBSCRIPTION AGREEMENT
October 16, 2001
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 1
INTERPRETATION.........................................................1
1.1 Defined Terms....................................................1
1.2 Gender and Number................................................3
1.3 Headings, etc....................................................3
1.4 Severability.....................................................3
1.5 Entire Agreement.................................................3
1.6 Amendments.......................................................4
1.7 Inclusion........................................................4
1.8 Accounting Terms.................................................4
1.9 Incorporation of Schedules.......................................4
ARTICLE 2
subscription...........................................................4
2.1 Subscription.....................................................4
2.2 Form of the Warrants.............................................4
2.3 Registration Rights..............................................4
2.4 Receipt of the Securities........................................5
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF THE
CORPORATION............................................................5
3.1 Representations and Warranties of the Corporation................5
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANT OF GM.........................7
4.1 Representations and Warranties of GM.............................7
ARTICLE 5
CLOSING CONDITIONS.....................................................9
5.1 Conditions of Closing in Favour of the Corporation...............9
5.2 Conditions of Closing in Favour of GM............................9
ARTICLE 6
INDEMNITY.............................................................10
6.1 Indemnification.................................................10
ARTICLE 7
MISCELLANEOUS.........................................................11
7.1 Notices.........................................................11
7.2 Time of the Essence.............................................12
7.3 Brokers.........................................................12
7.4 Third Party Beneficiaries.......................................12
7.5 Enurement.......................................................12
7.6 Waiver..........................................................12
7.7 Governing Law...................................................12
7.8 Counterparts....................................................12
- 2 -
THIS AGREEMENT is made October 16, 2001
BETWEEN:
HYDROGENICS CORPORATION, a corporation governed by
the laws of Canada,
(the "Corporation")
- and -
GENERAL MOTORS CORPORATION, a corporation governed by
the laws of the State of Delaware,
("GM")
RECITALS
A. The Corporation and GM have entered into a Corporate Alliance Agreement,
Master Intellectual Property Agreement and Governance Agreement all on the
date hereof in connection with the creation of a long term strategic
alliance relationship between the Corporation and GM.
B. In connection with the creation of the strategic alliance relationship,
the Corporation has agreed to issue to GM and GM has agreed to subscribe
from the Corporation 11,364,006 common shares in the capital of the
Corporation and warrants to acquire an additional 2,470,436 common shares.
THEREFORE, in consideration of the premises and the mutual agreements contained
in this Agreement and other valuable consideration (the receipt and adequacy of
which is hereby acknowledged), the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Defined Terms.
As used in this Agreement including the recitals hereto, the following terms
have the following meanings:
"Agreement" means this subscription agreement and all schedules and
instruments in amendment or confirmation of it; "hereof", "hereto" and
"hereunder" and similar expressions mean and refer to this Agreement and
not to any particular Article, Section, Subsection or other subdivision;
"Article", "Section", "Subsection" or other subdivision of this Agreement
followed by a number means and refers to the specified Article, Section,
Subsection or other subdivision of this Agreement.
"Business Day" means any day other than Saturday, Sunday or a day on which
chartered banks are closed for business in Toronto, Ontario or New York,
New York.
"Closing" means the closing of all of the transactions contemplated by
this Agreement, the Corporate Alliance Agreement, the Master Intellectual
Property Agreement and the Corporate Governance Agreement.
"Closing Date" means on or about October 16, 2001.
"Competition Act Approval" means:
(a) the issuance of an advance ruling certificate ("ARC") pursuant
to section 102 of the Competition Act (Canada) (the "Competition
Act") by the Commissioner of Competition appointed under the
Competition Act (the "Commissioner") to the effect that he is
satisfied that he would not have sufficient grounds upon which to
apply to the Competition Tribunal for an order under section 92
of the Competition Act with respect to the transactions
contemplated by this Agreement; or
(b) the waiver by the Commissioner under section 113(c) of the
Competition Act of the obligation to notify the Commissioner
because substantially similar information was previously supplied
in relation to a request for an ARC, or that the waiting period
under section 123 of the Competition Act has expired, and the
Purchaser shall have been advised in writing by the Commissioner
that the Commissioner has determined not to make an application
for an order under section 92 of the Competition Act in respect
of the transactions contemplated by this Agreement and that any
terms and conditions attached to any such advice shall be
acceptable to the Subscriber and the Corporation.
"Financial Statements" means the audited balance sheet of the Corporation
for the fiscal year ending December 31, 2000 and the accompanying
statements of income, retained earnings and changes in financial position
for the year then ended and all notes thereto as reported upon by
PricewaterhouseCoopers LLP.
"GAAP" means, at any time, accounting principles generally accepted in
Canada as recommended in the Handbook of the Canadian Institute of
Chartered Accountants at the relevant time applied on a consistent basis
(except for changes made with the prior written consent of GM and approved
by the Corporation's independent auditors in accordance with promulgations
of the Canadian Institute of Chartered Accountants).
"Governmental Entity" means any (i) multinational, federal, provincial,
state, municipal, local or other government, governmental or public
department, central bank, court, commission, board, bureau, agency or
instrumentality, domestic or foreign, (ii) any subdivision or authority of
any of the foregoing, or (iii) any quasi-governmental or private body
exercising any regulatory, expropriation or taxing authority under or for
the account of any of the above.
"Indemnified Party" has the meaning specified in Section 6.1(a).
"Indemnifying Party" has the meaning specified in Section 6.1(a).
"Losses" has the meaning specified in Section 6.1(a).
"Material Adverse Effect" in respect of the Corporation shall mean any
material adverse effect on the condition (financial or otherwise),
earnings, business, prospects or properties of the Corporation whether or
not arising from transactions in the ordinary course of business.
"Parties" means GM, the Corporation and "Party" means any one of them.
"Person" means a natural person, partnership, corporation, joint stock
company, trust, unincorporated association, joint venture or other entity
or Governmental Entity, and pronouns have a similarly extended meaning.
"SEC" means the United States Securities and Exchange Commission.
"Securities" has the meaning specified in Section 2.1.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Shares" means the common shares in the capital of the Corporation.
"Subscription Shares" has the meaning specified in Section 2.1.
"Subscription Warrants" has the meaning specified in Section 2.1.
1.2 Gender and Number.
Any reference in this Agreement to gender includes all genders and words
importing the singular number only shall include the plural and vice versa.
1.3 Headings, etc.
The provision of a Table of Contents, the division of this Agreement into
Articles and Sections and the insertion of headings are for convenient reference
only and are not to affect is interpretation.
1.4 Severability.
If any provision of this Agreement shall be determined by an arbitrator or any
court of competent jurisdiction to be illegal, invalid or unenforceable, that
provision shall be severed from this Agreement and the remaining provisions
shall continue in full force and effect.
1.5 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties and
supersedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, of the Parties in connection with the subject matter of
this Agreement. Except as set forth in the Corporate Alliance Agreement, there
are no representations, warranties, conditions or other agreements, express or
implied, statutory or otherwise, between the Parties in connection with the
subject matter of this Agreement, except as specifically set forth herein and
therein and neither GM nor the Corporation have relied or are relying on any
other information, discussion or understanding in entering into and completing
the transactions contemplated in this Agreement. If there is any conflict or
inconsistency between the provisions of this Agreement and the provisions of the
Corporate Alliance Agreement, the provisions of this Agreement shall govern.
1.6 Amendments.
This Agreement may only be amended, supplemented or otherwise modified by
written agreement signed by the Corporation and GM.
1.7 Inclusion.
Where the word "including" or "includes" is used in this Agreement it means
"including (or includes) without limitation".
1.8 Accounting Terms.
All accounting terms not specifically defined in this Agreement shall be
interpreted in accordance with GAAP.
1.9 Incorporation of Schedules.
The schedules attached to this Agreement shall, for all purposes of this
Agreement, form an integral part of it:
Schedule A - Form of Warrants
Schedule B - Escrow Agreement
Schedule C - Registration Rights Agreement
ARTICLE 2
SUBSCRIPTION
2.1 Subscription.
Subject to the terms and conditions hereof, the Corporation hereby agrees to
issue to GM and GM agrees to subscribe from the Corporation for 11,364,006
Shares (the "Subscription Shares") and warrants (the "Subscription Warrants") to
acquire an additional 2,470,436 Shares. The Subscription Shares and the
Subscription Warrants shall be referred to collectively herein as the
"Securities".
2.2 Form of the Warrants.
The Subscription Warrants shall be substantially in the form attached hereto as
Schedule A and shall be issued to GM subject to escrow substantially on the
terms of the escrow agreement attached hereto as Schedule B.
2.3 Registration Rights.
GM shall receive registration rights from the Corporation substantially on the
terms of the registration rights agreement attached hereto as Schedule C.
2.4 Receipt of the Securities.
GM hereby acknowledges receipt of the Securities.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND ACKNOWLEDGEMENTS OF THE CORPORATION
3.1 Representations and Warranties of the Corporation.
The Corporation represents and warrants as follows to GM and acknowledges and
confirms that GM is relying on such representations and warranties in connection
with the subscription by GM for the Securities:
(a) Existence, Good Standing and Corporate Power. The Corporation
is validly existing and in good standing in its jurisdiction of
incorporation and has all corporate power required to conduct its
business as now conducted.
(b) Capitalization Etc.
(i) The authorized capital stock of the Corporation consists of
an unlimited number of Shares and an unlimited number of
preference shares, issuable in series. As of August 21,
2001, there were 35,574,280 Shares and no preference shares
issued and outstanding. All such issued and outstanding
Shares of the Corporation are validly issued, fully paid,
non-assessable and free of pre-emptive rights. Except for
6,377,434 Shares reserved for the exercise of options under
the Corporation's Stock Option Plan and the Subscription
Warrants, there are no existing options, warrants, calls,
subscriptions, or other rights or other agreements or
commitments which obligate the Corporation or any of its
subsidiaries to issue, transfer or sell any shares of
capital stock of the Corporation.
(ii) The issuance and delivery by the Corporation of the Securities
in connection with the transactions contemplated by this
Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Corporation. The
Securities to be issued in connection with the transactions
contemplated by this Agreement will, when issued in accordance
with the terms of this Agreement, be validly issued, fully
paid and non-assessable.
(c) Financial Statements. The Financial Statements present fairly, in
all material respects, the financial position of the Corporation and
any of its subsidiaries as of the date thereof and the results of
operations and cash flows of the Corporation and any of its
subsidiaries for the periods covered thereby. The Financial
Statements have been prepared in accordance with GAAP.
(d) Public Filings. The Corporation's Annual Report on Form 20-F for the
fiscal year ended December 31, 2000 as filed with the Ontario
Securities Commission and the SEC and the Quarterly Financial
Results for the three-month periods ending March 31, 2001 and
June 30, 2001, as filed with the Ontario Securities Commission
and the SEC, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements made therein, in
light of the circumstances in which they were made, not
misleading, at the dates and for the periods as of which the
information contained therein was presented.
(e) No Material Adverse Effect. Between June 30, 2001 and the date of
this Agreement, the Corporation has not suffered any adverse change
with respect to its business, results of operations or financial
condition which has had or is likely to have a Material Adverse
Effect on the Corporation and any of its subsidiaries, taken as a
whole.
(f) Compliance with Legal Requirements. The Corporation is in compliance
with applicable legal requirements, except where the failure to
comply with such legal requirements has not had and will not have
a Material Adverse Effect on the Corporation. The Corporation has
not received at any time, any notice or other written
communication from any Governmental Entity regarding any actual
or possible violation of, or failure to comply with, any legal
requirement.
(g) Authority; Binding Nature of Agreement. The Corporation has the
corporate right, power and authority to enter into and to perform
its obligations under this Agreement; and the execution, delivery
and performance by the Corporation of this Agreement has been
duly authorized by all necessary action on the part of the
Corporation and the board of directors of the Corporation. This
Agreement constitutes the legal, valid and binding obligation of
the Corporation enforceable against the Corporation in accordance
with its terms, subject to (a) laws of general application
relating to bankruptcy, insolvency and the relief of debtors and
(b) rules of law governing specific performance, injunctive
relief and other equitable remedies.
(h) Non-Contravention: Consents. Neither (y) the execution, delivery or
performance of this Agreement, nor (z) the consummation of any of
the transactions contemplated hereby, will directly or indirectly
(with or without notice or lapse of time):
(i) contravene, conflict with or result in a violation of (A) any
of the provisions of the charter documents of the Corporation,
(B) any resolution adopted by the shareholders, board of
directors or any committee of the board of directors of the
Corporation; or (C) any agreement or contract to which the
Corporation is a party or by which the Corporation is bound;
(ii) contravene, conflict with or result in a violation of, any
legal requirement or any order, writ, injunction or decree to
which the Corporation or any of its material assets is
subject;
(iii) contravene, conflict with or result in a violation of any of
the terms or requirements of any material permit issued by a
Governmental Entity that is held by the Corporation or that
otherwise relates to the business of the Corporation or to any
material assets owned or used by the Corporation; or
(iv) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any
contract to which the Corporation is a party or by which any
material asset of the Corporation is bound.
(i) Legal Proceedings.
(i) There is no pending legal proceeding and (to the knowledge of
the Corporation) no Person has overtly threatened to commence
any legal proceeding: (i) that involves the Corporation or any
assets owned or used by the Corporation and that is reasonably
likely to have a Material Adverse Effect on the Corporation;
or (ii) that challenges any of the transactions contemplated
by this Agreement.
(ii) There is no order, writ, injunction, judgment or decree to
which the Corporation, or any material assets owned or used by
the Corporation, is subject that would prohibit the
Corporation from entering into this Agreement or consummating
the transactions contemplated hereby.
ARTICLE 4
REPRESENTATIONS, WARRANTIES AND COVENANT
OF GM
4.1 Representations and Warranties of GM.
GM represents and warrants as follows to the Corporation and acknowledges and
confirms that the Corporation is relying upon such representations and
warranties in connection with the issuance by the Corporation of the Securities:
(a) Investment. GM is acquiring the Securities for GM's own account for
investment only and not with a view towards, or the resale in
connection with, the public sale or distribution thereof, (ii) GM
is not a resident of Canada; and (iii) GM does not intend to
sell, transfer or otherwise dispose of the Securities to any
Person (other than by operation of law or as otherwise permitted
under the terms of this Agreement) during the one year period
immediately following the Closing Date;
(b) Exemptions. GM understands that the Securities are being offered and
issued to GM in reliance on specific exemptions from the
registration requirements of United States federal and state
securities laws and that the Corporation is relying in part upon
the truth and accuracy of, and GM's compliance with, the
representations, warranties, agreements, acknowledgements and
understandings set forth herein in order to determine the
availability of such exemptions and the eligibility of GM to
acquire the Securities;
(c) Due Diligence. GM has been furnished with all materials relating to
the business, finances and operations of the Corporation which have
been requested by GM. GM has been afforded the opportunity to ask
questions of the Corporation. GM has sought such accounting, legal
and tax advice as GM has considered necessary to make an informed
investment decision with respect to GM's acquisition of the
Securities;
(d) Government Xxxxxxxx.XX understands that no U.S. or Canadian federal,
state or provincial agency or any other Governmental Entity has
passed on or made any recommendation or endorsement of the
Securities or the fairness or suitability of GM's investment in
the Securities nor have such authorities passed upon or endorsed
the merits of the offering of the Securities;
(e) Accredited Investor. GM is an "accredited investor" within the
meaning of SEC Rule 501 of Regulation D, as presently in effect.
(f) Resale Restrictions. GM understands that:
(i) the Securities it is acquiring are characterized as
"restricted securities" under the U.S. federal securities laws
as it is being acquired from the Corporation in a transaction
not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without
registration under the Securities Act only in certain limited
circumstances;
(ii) in the absence of a registration or an effective exemption
from registration under the Securities Act, the Securities
must be held indefinitely;
(iii) the offer and sale of the Securities have not been registered
under the Securities Act by reason of their issuance in a
transaction exempt from the registration requirements of the
Securities Act pursuant to Section 4(2) thereof or Rule 505 or
506 promulgated under the Securities Act, and may not be
offered for sale, sold, pledged or hypothecated unless,
(A) subsequently registered thereunder, or
(B) GM shall have delivered to the Corporation an opinion of
counsel, in a generally acceptable form, to the effect
that the Securities may be sold, offered, pledged or
hypothecated pursuant to an exemption from such
registration;
(iv) except pursuant to the registration rights agreement referred
to in Section 2.3 of this Agreement or as the Parties may
otherwise expressly agree the Corporation is under no
obligation to register the Securities, under the Securities
Act or any state securities laws or to comply with the terms
and conditions of any exemption thereunder or to qualify the
resale of the Securities, by prospectus in any province of
Canada; and
(v) the Securities may not be offered for sale, sold, pledged,
hypothecated, assigned or transferred in Canada except in
compliance with applicable Canadian securities laws;
(g) U.S. Legend. GM understands that the certificates or other
instruments representing the Securities shall bear a restrictive
legend in substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT") OR ANY APPLICABLE STATE BLUE SKY LAWS. THEY MAY NOT BE SOLD
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF A
REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITIES
UNDER THE 1933 ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED. ANY SUCH SALE,
OFFER, PLEDGE OR HYPOTHECATION MAY ALSO BE SUBJECT TO APPLICABLE
STATE SECURITIES LAW.
(h) Canadian Legend. In addition, the certificates or other
instruments representing the Securities shall bear an additional
restrictive legend in substantially the following form:
UNLESS PERMITTED UNDER APPLICABLE CANADIAN SECURITIES LEGISLATION,
THE HOLDER OF THE SECURITIES SHALL NOT TRADE THE SECURITIES BEFORE
[insert the date that is twelve months and a day after the
distribution date].
ARTICLE 5
CLOSING CONDITIONS
5.1 Conditions of Closing in Favour of the Corporation.
The obligation of the Corporation to issue the Securities at the Closing will be
subject to: (i) the requirement that GM has executed and delivered this
Agreement, the Corporate Alliance Agreement, the Master Intellectual Property
Agreement and the Governance Agreement, and any required forms necessary to
comply with applicable securities legislation, policies and rulings;
5.2 Conditions of Closing in Favour of GM.
GM's obligations to Subscribe for the Securities at the Closing are subject to
the satisfaction by the Corporation or waiver by GM, at or prior to the Closing
Date, of the following conditions:
(a) Representations and Warranties True; Performance of Obligations.
The representations and warranties made by the Corporation in
Section 3.1 hereof shall be true and correct in all respects, GM
shall have received a certificate of the Chief Executive Officer of
the Corporation, confirming the truth and correctness of the
representations and warranties of the Corporation, and the
Corporation shall have performed all obligations and conditions
herein in all material respects required to be performed or
observed by it on or prior to the Closing.
(b) Legal Investment. On the Closing Date, the issuance of the
Securities contemplated hereby shall be legally permitted by all
laws and regulations to which such sale and issuance are subject.
(c) Consents, Permits and Waivers. The Corporation shall have obtained
any and all consents, permits and waivers necessary or appropriate
for consummation of the transactions contemplated by this Agreement
including Competition Act Approval and approvals from The Toronto
Stock Exchange and the Nasdaq National Market.
(d) Corporate Documents. The Corporation shall have delivered to GM or
its counsel, copies of all corporate documents of the Corporation as
GM shall reasonably request.
(e) Reservation of Shares. The underlying shares issuable upon exercise
of the Subscription Warrants shall have been duly authorized and
reserved for issuance upon such conversion.
(f) Legal Opinion. GM shall have received from legal counsel to the
Corporation an opinion addressed to GM, dated as of the Closing
Date, in a form acceptable to GM's counsel.
(g) Proceedings and Documents. All corporate and other proceedings in
connection with the transactions contemplated at the closing hereby
and all documents and instruments incident to such transactions
shall be reasonably satisfactory in substance and form to GM, and GM
shall have received all such counterpart originals or certified or
other copies of such documents as they may reasonably request.
ARTICLE 6
INIDEMNITY
6.1 Indemnification.
(a) Indemnification. Each Party (the "Indemnifying Party") shall
indemnify and hold the other Party (the "Indemnified Party")
harmless from and against any claims, demands, actions, causes
of action, judgements, damages, losses (which shall include any
diminution in value), liabilities, costs or expenses (including,
without limitation, interest, penalties and reasonable attorneys'
and experts' fees and disbursements) (collectively, the "Losses")
which may be made against the Indemnified Party, or which the
Indemnified Party may suffer or incur as a result of, arising out
of or relating to:
(i) any violation, contravention or breach of any covenant,
agreement or obligation of the Indemnifying Party under or
pursuant to this Agreement; or
(ii) any incorrectness in, or breach of, any representation or
warranty made by the Indemnifying Party in Article 3 of this
Agreement.
(b) Notification. Promptly upon obtaining knowledge thereof, the
Indemnified Party shall notify the Indemnifying Party of any cause
which the Indemnified Party has determined has given or could give
rise to indemnification under this Agreement. The omission so to
notify the Indemnifying Party shall not relieve the Indemnifying
Party from any duty to indemnify and hold harmless which otherwise
might exist with respect to such cause.
ARTICLE 7
MISCELLANEOUS
7.1 Notices.
Any notice, consent or approval required or permitted to be given in connection
with this Agreement (in this Section referred to as a "Notice") shall be in
writing and shall be sufficiently given if delivered (whether in person, by
courier service or other personal method of delivery), or if transmitted by
facsimile or e-mail:
The Corporation
Hydrogenics Corporation
0000 XxXxxxxxxx Xxxx
Xxxxxxxxxxx, XX X0X 0X0
Facsimile: 000-000-0000
Attention: Xxxxxx Xxxxxx, President
with a copy to:
Osler, Xxxxxx & Xxxxxxxx, XXX
Xxx 00, 0 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX X0X 0X0
Facsimile: 000-000-0000
Attention: Xxxx Xxxxxxx
GM:
General Motors Corporation
000 Xxxxxxxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
MC 482-C23-D24
Facsimile: 313-667-3188
Attention: General Counsel
Any Notice delivered or transmitted to a Party as provided above shall be deemed
to have been given and received on the day it is delivered or transmitted,
provided that it is delivered or transmitted on a Business Day prior to 5:00
p.m. local time in the place of delivery or receipt. However, if the Notice is
delivered or transmitted after 5:00 p.m. local time or if such day is not a
Business Day then the Notice shall be deemed to have been given and received on
the next Business Day. Any Party may, from time to time, change its address by
giving Notice to the other Parties in accordance with the provisions of this
Section.
7.2 Time of the Essence.
Time shall be of the essence of this Agreement.
7.3 Brokers.
It is understood and agreed that no broker, agent or other intermediary acted
for the Corporation in connection with the sale of the Subscription Shares and
Subscription Warrants and the Corporation shall indemnify and save harmless GM
from and against any claims whatsoever for any commission or other remuneration
payable or alleged to be payable to any broker, agent or other intermediary who
purports to act or have acted for the Corporation.
7.4 Third Party Beneficiaries.
Each Party hereto intends that this Agreement shall not benefit or create any
right or cause of action in or on behalf of any Person, other than the Parties
hereto, and no Person, other than the Parties hereto, shall be entitled to rely
on the provisions hereof in any action, suit, proceeding, hearing or other
forum.
7.5 Enurement.
This Agreement shall enure to the benefit of and be binding upon the Parties,
their successors and any permitted assigns.
7.6 Waiver.
No waiver of any of the provisions of this Agreement shall be deemed to
constitute a waiver of any other provision (whether or not similar); nor shall
such waiver be binding unless executed in writing by the Party to be bound by
the waiver.
7.7 Governing Law.
This Agreement shall be governed by and interpreted and enforced in accordance
with the laws of the Province of Ontario and the federal laws of Canada
applicable therein.
7.8 Counterparts.
This Agreement may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed by
their respective duly authorized officers.
HYDROGENICS CORPORATION
By: Xxxxxx Xxxxxx
---------------------------------
Name: Xxxxxx Xxxxxx
Title: President and CEO
GENERAL MOTORS CORPORATION
By: Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President, Research
& Development and Planning
