UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 8, 2013
Plug Power Inc.
(Exact name of registrant as specified in its charter)
Delaware |
1-34392 |
22-3672377 |
(State or other jurisdiction |
(Commission File |
(IRS Employer |
of incorporation) |
Number) |
Identification No.) |
968 Albany Shaker
Road,
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12110 |
(Address of principal executive offices) |
(Zip Code) |
Registrants telephone number, including area code: (518) 782-7700
N/A
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On May 8, 2013, Plug Power Inc. (the Company) entered into a Securities Purchase Agreement (the Purchase Agreement) with Air Liquide Investissements d'Avenir et de Demonstration (Air Liquide), pursuant to which the Company agreed to issue and sell to Air Liquide approximately 10,500 shares of the Companys Series C Redeemable Convertible Preferred Stock, par value $0.01 per share (the Series C Preferred Stock), for an aggregate purchase price of approximately $2.6 million (Euro 2 million) in cash. On an as-converted basis, Air Liquide is expected to initially own approximately 14% of the Companys outstanding common stock, par value $0.01 per share (the Common Stock). The transaction contemplated by the Securities Purchase Agreement is expected to close during the week of May 13, 2013 and no later than May 22, 2013.
Under the terms of the Purchase Agreement, for so long as Air Liquide holds any shares of Series C Preferred Stock, Air Liquide shall be entitled to designate one director to the Companys Board of Directors. In the event the Series C Preferred Stock is converted into shares of Common Stock and Air Liquide continues to hold at least 5% of the outstanding shares of Common Stock or 50% of the shares of Common Stock held by Air Liquide on an as-converted basis immediately following the issuance of the Series C Preferred Stock, Air Liquide shall continue to be entitled to designate one director to the Companys Board of Directors. The Purchase Agreement also provides Air Liquide with the right to participate in certain future equity financings by the Company.
The foregoing summary is qualified in its entirety by the full text of the Purchase Agreement, a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.
The Series C Preferred Stock will rank senior to the Common Stock with respect to rights upon the liquidation, dissolution or winding up of the Company. The Series C Preferred Stock will be entitled to receive dividends at a rate of 8% per annum payable in equal quarterly installments in cash or in shares of Common Stock, at the Companys option. The Series C Preferred Stock will be convertible into shares of Common Stock, at a conversion price equal to $0.248794 per share, at Air Liquides option, (1) on or after May 8, 2014 or (2) upon any liquidation, dissolution or winding up of the Company, any sale, consolidation or merger of the Company resulting in a change of control, or any sale or other transfer of all or substantially all of the assets of the Company. The Series C Preferred Stock will have customary redemption rights and weighted average anti-dilution protection. The Series C Preferred Stock will vote together with the Common Stock on an as-converted basis on all matters.
The shares of Series C Preferred Stock were issued in a private placement exempt from registration pursuant to Section 4(2) of the Securities Act of 1933, as amended (the Securities Act).
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In connection with the Series C Preferred Stock investment, the Company and Axane, S.A. (Axane), a subsidiary of Air Liquide S.A., entered into transactions related to their HyPulsion S.A.S. joint venture. HyPulsion was formed by the Company and Axane to develop and market hydrogen fuel cell systems for the European material handling market. Axane purchased a 25% ownership interest in HyPulsion from the Company for a cash purchase price of $3.3 million (Euro 2.5 million). The Company now owns 20% and Axane owns 80% of HyPulsion. The Company has the right to purchase 60% of HyPulsion from Axane in 2018 at a formula price. If the Company does not exercise its purchase right, Axane has the right to buy the Companys remaining 20% interest at a formula price.
The Company and HyPulsion also entered into an engineering service agreement under which, among other things, the Company will provide HyPulsion with engineering and technical services for a new fuel cell assembly line and manufacturing execution system. Under the service agreement, HyPulsion will make payments to the Company of up to $659,000 (Euro 500,000) in the aggregate for services to be performed by the Company.
Item 3.03. Material Modification to Rights of Security Holders.
In connection with entering into the Purchase Agreement, on May 8, 2013, the Company and Broadridge Corporate Issuer Solutions, Inc., as rights agent (Broadridge), entered into an Amendment No. 5 (the Amendment) to Shareholders Rights Agreement, dated as of June 23, 2009 (as amended by Amendment No. 1 to Shareholder Rights Agreement, dated as of May 6, 2011, Amendment No. 2 to Shareholder Rights Agreement, dated March 16, 2012, Amendment No. 3 to Shareholder Rights Agreement, dated March 23, 2012, and Amendment No. 4 to Shareholder Rights Agreement, dated February 11, 2013, the Rights Agreement), between the Company and Broadridge. The Amendment amends the definition of Acquiring Person to allow Air Liquide to acquire, under the Purchase Agreement, shares of Series C Preferred Stock, as well as the shares of Common Stock issuable upon conversion thereof and any dividends payable or paid-in-kind, without triggering the rights under the Rights Agreement. If Air Liquide becomes the beneficial owner of 15% or more of the shares of Common Stock and at such time Air Liquide is or is deemed to be the beneficial owner of any shares of Common Stock other than by virtue of owning shares of Series C Preferred Stock and any shares of Common Stock acquired upon conversion thereof or any dividends payable or paid-in-kind, then Air Liquide will be deemed an Acquiring Person under the Rights Agreement.
The foregoing summary is qualified in its entirety by reference to the Amendment, which is filed as Exhibit 4.1 hereto and is incorporated herein by reference.
Item 7.01. Regulation FD Disclosure.
The Company issued a press release announcing the execution of the Purchase Agreement and the other Air Liquide transactions. A copy of the press release is furnished herewith as Exhibit 99.1.
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The information in this Item 7.01 of this Current Report on Form 8-K, including the information contained in Exhibit 99.1, shall not be deemed filed for the purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the Exchange Act), or otherwise subject to the liabilities under that Section. Furthermore, the information in Item 7.01 of this Current Report on Form 8-K, including the information contained in Exhibit 99.1, shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing.
Item 9.01. Financial Statements and Exhibits.
(d) | Exhibits. |
4.1 |
Amendment No. 5 to Shareholder Rights Agreement, dated as of May 8, 2013, by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent. |
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10.1 |
Securities Purchase Agreement, dated as of May 8, 2013, by and between Plug Power Inc. and Air Liquide Investissements d'Avenir et de Demonstration. |
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99.1 |
Press Release, dated May 8, 2013. |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Plug Power Inc. |
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Date: May 8, 2013 |
By: /s/ Gerard L. Conway, Jr. |
Name: Gerard L. Conway, Jr. |
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Title: General Counsel and Corporate Secretary |
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EXHIBIT INDEX
Exhibit No. |
Description |
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4.1 |
Amendment No. 5 to Shareholder Rights Agreement, dated as of May 8, 2013, by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent. |
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10.1 |
Securities Purchase Agreement, dated as of May 8, 2013, by and between Plug Power Inc. and Air Liquide Investissements d'Avenir et de Demonstration. |
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99.1 |
Press Release, dated May 8, 2013. |
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AMENDMENT
NO. 5 TO
SHAREHOLDER RIGHTS AGREEMENT
This Amendment No. 5, effective as of May 8, 2013 (the Amendment ), amends the Shareholder Rights Agreement, dated as of June 23, 2009 (as amended by Amendment No. 1 dated as of May 6, 2011, Amendment No. 2 dated as of March 16, 2012, Amendment No. 3 dated as of March 23, 2012, and Amendment No. 4 dated as of February 11, 2013, (the Rights Agreement ), between Plug Power Inc., a Delaware corporation (the Company ), and Broadridge Corporate Issuer Solutions, Inc., a Pennsylvania corporation (the Rights Agent ). Capitalized terms used herein but not defined herein shall have their defined meanings set forth in the Rights Agreement.
WHEREAS, the Company is entering into a Securities Purchase Agreement, dated as of the date hereof (the Securities Purchase Agreement ), with Air Liquide Investissements d'Avenir et de Demonstration (the Investor ) pursuant to which the Company will issue shares (the Securities Purchase Agreement Shares ) of Series C Redeemable Convertible Preferred Stock, par value $0.01 per share, of the Company (the Series C Preferred Stock );
WHEREAS, pursuant to and in accordance with the terms the Certificate of Designations to the Amended and Restated Certificate of Incorporation of the Company, as amended (the Certificate of Designations ), the Series C Preferred Stock will be convertible into shares of the Companys common stock, par value $0.01 per share (the Common Stock );
WHEREAS, pursuant to and in accordance with the terms the Certificate of Designations, the Series C Preferred Stock shall, from and after the date of its issuance, accumulate dividends at the rate per annum equal to 8% of the issue price of the Series C Preferred Stock, which shall be payable at the election of the Corporation, in cash or in shares of Common Stock (the Dividend Shares and, together with the Securities Purchase Agreement Shares and any other shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned, now or in the future, by the Investor or any of its Affiliates or Associates as a result of the terms of the Series C Preferred Stock as set forth in the Certificate of Designations, the Investor Shares );
WHEREAS, upon the execution of the Securities Purchase Agreement and as a result of the issuance to the Investor of the Investor Shares, the Investor may acquire, now or in the future, or be deemed to have acquired or may have or be deemed to have, now or in the future, together with their respective Affiliates and Associates, Beneficial Ownership of shares of Common Stock of the Company representing 15% or more of the shares of Common Stock of the Company then outstanding;
WHEREAS, the Board of Directors of the Company has determined that it is advisable and in the best interest of the Company to amend the Rights Agreement to provide that the Investor and its Affiliates and Associates may acquire the Investor Shares without becoming Acquiring Persons and without causing the occurrence of a Stock Acquisition Date, Distribution Date, Section 11(a)(ii) Event or Section 13 Event under the Rights Agreement (the Securities Purchase Agreement Exemption );
WHEREAS, pursuant to Section 27 of the Rights Agreement and under the circumstances specified therein, the Company and the Rights Agent shall, if the Board of Directors of the Company so directs, supplement or amend any provision of the Rights Agreement without the approval of any holders of certificates representing shares of Common Stock of the Company;
WHEREAS, the Company now desires to amend the Rights Agreement as set forth in this Amendment and, pursuant to Section 27 of the Rights Agreement, the Board of Directors of the Company hereby directs that the Rights Agreement should be amended as set forth in this Amendment; and
WHEREAS, the Board of Directors of the Company has determined that this Amendment and the transactions contemplated hereby are advisable and in the best interests of the Company and the holders of Common Stock.
NOW, THEREFORE, the parties hereby agree as follows:
1. The first paragraph of the definition of Acquiring Person in Section 1(a) of the Rights Agreement is hereby amended and restated in its entirety to read as follows:
Acquiring Person shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates (as such term is hereinafter defined) and Associates (as such term is hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the shares of Common Stock of the Company then outstanding, but shall not include (i) the Company, (ii) any Subsidiary (as such term is hereinafter defined) of the Company, (iii) any employee benefit plan or compensation arrangement of the Company or any Subsidiary of the Company or (iv) any Person holding shares of Common Stock of the Company organized, appointed or established by the Company or any Subsidiary of the Company for or pursuant to the terms of any such employee benefit plan or compensation arrangement (the Persons described in clauses (i) through (iv) above are referred to herein as Exempt Persons ); provided, however , that the term Acquiring Person shall not include: (1) Air Liquide Investissements d'Avenir et de Demonstration and its Affiliates and Associates (collectively, Air Liquide ), to the extent Air Liquide becomes the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding solely due to Air Liquides Beneficial Ownership of shares of Series C Redeemable Convertible Preferred Stock, par value $0.01 per share, of the Company (the Series C Preferred Stock ), issued pursuant to the Securities Purchase Agreement, dated as of May 8, 2013, by and between the Company and Air Liquide Investissements d'Avenir et de Demonstration (the Securities Purchase Agreement ), and the Certificate of Designations to the Amended and Restated Certificate of Incorporation of the Company, as amended (the Series C Preferred Stock Certificate of Designations ), and any shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned, now or in the future, by Air Liquide as a result of the terms of the Series C Preferred Stock as set forth in the Series C Preferred Stock Certificate of Designations, including, without limitation, shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned by Air Liquide as a result of accrued dividends or dividends paid-in-kind on the Series C Preferred Stock or any adjustments (including, without limitation, to the conversion price or conversion ratio) to the Series C Preferred Stock (the Air Liquide Preferred Stock Investment Shares ); and (2) any Grandfathered Person, any INTER RAO Grandfathered Person, any SSF Grandfathered Person or any February 2013 Offering Grandfathered Investor, unless (A) with respect to a Grandfathered Person, such Grandfathered Person becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the Grandfathered Percentage of such Grandfathered Person, (B) with respect to an INTER RAO Grandfathered Person, such INTER RAO Grandfathered Person becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the INTER RAO Grandfathered Percentage of such INTER RAO Grandfathered Person, (C) with respect to an SSF Grandfathered Person, such SSF Grandfathered Person becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the SSF Grandfathered Percentage of such SSF Grandfathered Person, and (D) with respect to a February 2013 Offering Grandfathered Investor, such February 2013 Offering Grandfathered Investor becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the February 2013 Offering Investor Grandfathered Percentage of such February 2013 Offering Grandfathered Investor. For the avoidance of doubt, if Air Liquide becomes or is the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding (including the Air Liquide Preferred Stock Investment Shares) and at such time Air Liquide is or is deemed to be the Beneficial Owner of any shares of Common Stock of the Company other than the Air Liquide Preferred Stock Investment Shares, then Air Liquide shall be deemed an Acquiring Person hereunder.
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2. Section 3(a) of the Rights Agreement is hereby amended and restated in its entirety to read as follows:
From the date hereof until the earlier of (i) the Close of Business on the tenth calendar day after the Stock Acquisition Date or (ii) the Close of Business on the tenth Business Day (or such later calendar day, if any, as the Board of Directors of the Company may determine in its sole discretion) after the date a tender or exchange offer by any Person, other than an Exempt Person, is first published or sent or given within the meaning of Rule 14d-4(a) of the Exchange Act, or any successor rule, if, upon consummation thereof, such Person could become, or would be, the Beneficial Owner of 15% (or in the case of a Grandfathered Person, INTER RAO Grandfathered Person, SSF Grandfathered Person or February 2013 Offering Grandfathered Investor, the Grandfathered Percentage, INTER RAO Grandfathered Percentage, SSF Grandfathered Percentage, or February 2013 Offering Investor Grandfathered Percentage applicable to such Person) or more of the shares of Common Stock of the Company then outstanding (including any such date which is after the date of this Agreement and prior to the issuance of the Rights) (the earliest of such dates being herein referred to as the Distribution Date ), (x) the Rights will be evidenced (subject to the provisions of Section 3(b) hereof) by the certificates for the Common Stock of the Company registered in the names of the holders of the Common Stock of the Company (which certificates for Common Stock of the Company shall be deemed also to be certificates for Rights) and not by separate certificates, and (y) the Rights will be transferable only in connection with the transfer of the underlying shares of Common Stock of the Company. As soon as practicable after the Distribution Date, the Rights Agent will, at the Companys expense send, by first-class, insured, postage prepaid mail, to each record holder of the Common Stock of the Company as of the Close of Business on the Distribution Date, at the address of such holder shown on the records of the Company, one or more certificates, in substantially the form of Exhibit B hereto (the Right Certificates ), evidencing one Right for each share of Common Stock of the Company so held, subject to adjustment as provided herein. In the event that an adjustment in the number of Rights per share of Common Stock of the Company has been made pursuant to Section 11(o) hereof, the Company may make the necessary and appropriate rounding adjustments (in accordance with Section 14(a) hereof) at the time of distribution of the Right Certificates, so that Right Certificates representing only whole numbers of Rights are distributed and cash is paid in lieu of any fractional Rights. As of and after the Close of Business on the Distribution Date, the Rights will be evidenced solely by such Right Certificates.
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3. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect and shall be otherwise unaffected.
4. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, United States of America, applicable to contracts made and to be performed entirely within such State, without regard to conflict-of-law principles.
5. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
[ The remainder of this page has been intentionally left blank ]
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the day and year first above written.
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PLUG POWER, INC. |
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Attest: |
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/s/ Gerard L. Conway, Jr. |
By: /s/ Andrew Marsh |
Name: Gerard L. Conway, Jr. |
Name: Andrew Marsh |
Title: General Counsel |
Title: President and Chief Executive Officer |
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BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC, as Rights Agent |
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Attest: |
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/s/ Jack Liger |
By: /s/ Peter Breen |
Name: Jack Liger |
Name: Peter Breen |
Title: Relationship Manager |
Title: General Manager |
[Signature Page to Amendment No.5 to Shareholder Rights Agreement]
SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT , dated as of May 8, 2013 (this Agreement ), is made by and between Plug Power Inc. , a corporation incorporated under the laws of the State of Delaware (the Company ), and Air Liquide Investissements d'Avenir et de Demonstration, a company incorporated under the laws of France (the Purchaser ).
RECITALS
A. The Company and the Purchaser are executing and delivering this Agreement in reliance upon the exemption from securities registration afforded by Section 4(2) of the Securities Act.
B. The Purchaser desires to purchase, and the Company desires to sell, upon the terms and conditions stated in this Agreement, the Shares (as defined below) for a purchase price equal to the Aggregate Purchase Price (as defined below).
C. The capitalized terms used herein and not otherwise defined have the meanings given them in Article 5 .
AGREEMENT
In consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Purchaser hereby agree as follows:
1.2 Payment; Closing . On a Business Day not later than May 15, 2013 (the Certification Date ), the Purchaser shall certify in writing to the Company the exchange rate used to convert one Euro into U.S. Dollars and the resulting Aggregate Purchase Price expressed in U.S. Dollars (which exchange rate, for the avoidance of doubt, shall be the then prevailing rate at the time of the exchange for commercial banking customers used by the bank or banks effecting such conversion for Purchaser), (the exchange rate so certified, the Exchange Rate ). No later than the Business Day immediately following the Certification Date, (i) the Company shall deliver the certificate representing the Applicable Number of Shares, and (ii) the parties shall deliver fully executed copies of the Registration Rights Agreement to Baker & McKenzie LLP to be held in escrow as agent for the parties. On that Business Day, not later than May 22, 2013 (the Closing Date ), upon which (and contingent on which) the Company receives the Aggregate Purchase Price (by wire transfer to an account designated in writing to the Purchaser by the Company on the date hereof), (x) the closing of the transaction contemplated by this Agreement shall be deemed to take place (the Closing ) and (y) in consideration of the payment of such Aggregate Purchase Price, the Company shall be deemed to have irrevocably delivered to the Purchaser the Shares, the parties shall be deemed to have irrevocably delivered to each other the Registration Rights Agreement and the parties shall be deemed to have irrevocably authorized Baker & McKenzie LLP to deliver the certificate representing the Shares to the Purchaser and executed copies of the Registration Rights Agreement to each of the parties on behalf of each of them.
Except as specifically contemplated by this Agreement or as set forth in the SEC Documents, the Company hereby represents and warrants to the Purchaser, as of the date hereof and as of the Closing Date, that:
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(a) The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the transactions contemplated hereby (including the issuance of the Securities) will not (i) conflict with or result in a violation of any provision of its Certificate of Incorporation or Bylaws or require the approval of the Companys stockholders, (ii) with or without the passage of time or the giving of notice or both, violate or conflict with, or result in a breach of any provision of, or constitute a default under, or give rise to any right of termination or acceleration under, or constitute a change of control under, any agreement, indenture, or instrument to which the Company or its subsidiaries is a party or it or any of its subsidiaries is bound, or (iii) result in a violation of any law, rule, regulation, order, judgment or decree (including United States federal and state securities laws and rules and regulations of any self-regulatory organizations to which the Company or the Companys securities are subject) applicable to the Company or its subsidiaries is a party or it or any of its subsidiaries is bound, except in the case of clauses (ii) and (iii) only, for such conflicts, breaches, defaults, and violations as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
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The Purchaser represents and warrants to the Company that:
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THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE SECURITIES MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED, HYPOTHECATED, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER APPLICABLE SECURITIES LAWS, OR UNLESS OFFERED, SOLD, PLEDGED, HYPOTHECATED OR TRANSFERRED PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THOSE LAWS. IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT, THE COMPANY SHALL BE ENTITLED TO REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED TO THE EXTENT THAT SUCH OPINION IS REQUIRED PURSUANT TO THAT CERTAIN SECURITIES PURCHASE AGREEMENT UNDER WHICH THE SECURITIES WERE ISSUED.
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ARTICLE 8
GOVERNING LAW; MISCELLANEOUS
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If to the Company: |
Plug
Power Inc.
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With a copy (which shall not constitute notice) to: |
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Goodwin
Procter LLP
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If to the Purchaser: |
Air Liquide Investissements d'Avenir et de Demonstration |
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25 rue Marbeuf |
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75008 Paris |
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France |
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Facsimile: +33 1 44 43 46 48
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With a copy (which shall not constitute notice) to: |
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Air Liquide |
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Group Legal Department |
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75 quai dOrsay |
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75007 Paris |
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France |
Each party will provide ten days advance written notice to the other party or parties of any change in its address.
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[Signature Page Follows]
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IN WITNESS WHEREOF , the parties hereto have caused this Securities Purchase Agreement to be duly executed by their respective authorized signatories as of the date first indicated above.
PLUG POWER INC. |
By:
/s/ Andrew Marsh
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AIR LIQUIDE INVESTISSEMENTS DAVENIR ET DE DEMONSTRATION |
By:
/s/ Pierre-Etienne Franc
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[SECURITIES PURCHASE AGREEMENT SIGNATURE PAGE]
Exhibit A
Form of Certification of Designations
CERTIFICATE OF DESIGNATIONS
OF
SERIES C REDEEMABLE CONVERTIBLE
PREFERRED STOCK
OF
PLUG POWER INC.
PLUG POWER INC . (the Corporation ), a corporation organized and existing under the General Corporation Law of the State of Delaware (the General Corporation Law ), in accordance with the provisions of Section 103 thereof,
DOES HEREBY CERTIFY:
Pursuant to the authority conferred upon the Board of Directors by the Corporations Amended and Restated Certificate of Incorporation, as amended (the Certificate of Incorporation ), and Section 151(g) of the General Corporation Law of the State of Delaware, on May 2, 2013, the Board of Directors adopted the following resolution determining it desirable and in the best interests of the Corporation and its stockholders for the Corporation to create a series of [_________] shares of preferred stock designated as Series C Redeemable Convertible Preferred Stock:
RESOLVED , that pursuant to the authority vested in the Board of Directors of this Corporation, in accordance with the provisions of the Certificate of Incorporation, a series of preferred stock, par value $.01 per share, of the Corporation be and hereby is created, and that the designation and number of shares thereof and the voting and other powers, preferences and relative, participating, optional or other rights of the shares of such series and the qualifications, limitations and restrictions thereof are as follows:
Series C Redeemable Convertible Preferred Stock
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(a) a merger or consolidation in which
(i) the Corporation is a constituent party or
(ii) a subsidiary of the Corporation is a constituent party and the Corporation issues shares of its capital stock pursuant to such merger or consolidation,
(b) or a sale of the Corporation,
except any such sale, merger or consolidation involving the Corporation or a subsidiary in which the shares of capital stock of the Corporation outstanding immediately prior to such sale, merger or consolidation continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such sale, merger or consolidation, at least a majority, by voting power, of the capital stock of (1) the Corporation after its sale, (2) the surviving or resulting corporation or (3) if the surviving or resulting corporation is a wholly owned subsidiary of another corporation immediately following such sale, merger or consolidation, the parent corporation of such surviving or resulting corporation; or
(c) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Corporation or any subsidiary of the Corporation of all or substantially all the assets of the Corporation and its subsidiaries taken as a whole, or the sale or disposition (whether by merger or otherwise) of one or more subsidiaries of the Corporation if substantially all of the assets of the Corporation and its subsidiaries taken as a whole are held by such subsidiary or subsidiaries, except where such sale, lease, transfer, exclusive license or other disposition is to a wholly owned subsidiary of the Corporation.
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(a) The Corporation shall not have the power to effect a Deemed Liquidation Event referred to in Subsection 3.3.1(a)(i) or Subsection 3.3.1(b) unless the agreement or plan of merger or consolidation for such transaction (the Merger Agreement ) provides that the consideration payable to the stockholders of the Corporation shall be allocated among the holders of capital stock of the Corporation in accordance with Subsections 3.1 and 3.2.
(b) In the event of a Deemed Liquidation Event referred to in Subsection 3.3.1(a)(ii) or 3.3.1(c), if the Corporation does not effect a dissolution of the Corporation under the General Corporation Law within 90 days after such Deemed Liquidation Event, then (i) the Corporation shall send a written notice to each holder of Series C Preferred Stock no later than the 90th day after the Deemed Liquidation Event advising such holders of their right (and the requirements to be met to secure such right) pursuant to the terms of the following clause (ii) to require the redemption of such shares of Series C Preferred Stock, and (ii) if the holders of at least 67% of the then outstanding shares of Series C Preferred Stock so request in a written instrument delivered to the Corporation not later than 120 days after such Deemed Liquidation Event, the Corporation shall use the consideration received by the Corporation for such Deemed Liquidation Event (net of any retained liabilities associated with the assets sold or technology licensed, as determined in good faith by the Board of Directors of the Corporation) , together with any other assets of the Corporation available for distribution to its stockholders, all to the extent permitted by Delaware law governing distributions to stockholders (the Available Proceeds ), on the 150th day after such Deemed Liquidation Event, to redeem all outstanding shares of Series C Preferred Stock at a price per share equal to the Series C Liquidation Amount. Notwithstanding the foregoing, in the event of a redemption pursuant to the preceding sentence, if the Available Proceeds are not sufficient to redeem all outstanding shares of Series C Preferred Stock, the Corporation shall ratably redeem each holders shares of Series C Preferred Stock to the fullest extent of such Available Proceeds , and shall redeem the remaining shares as soon as it may lawfully do so under Delaware law governing distributions to stockholders. The provisions of Section 7 shall apply, with such necessary changes in the details thereof as are necessitated by the context, to the redemption of the Series C Preferred Stock pursuant to this Subsection 3.3.2(b).
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The holders of the Series C Preferred Stock shall have conversion rights as follows (the Conversion Rights ):
(a) Option shall mean rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
(b) Series C Original Issue Date shall mean the date on which the first share of Series C Preferred Stock was issued.
(c) Convertible Securities shall mean any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding Options.
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(d) Additional Shares of Common Stock shall mean all shares of Common Stock issued (or, pursuant to Subsection 5.4.3 below, deemed to be issued) by the Corporation after the Series C Original Issue Date, other than (1) the following shares of Common Stock and (2) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (1) and (2), collectively, Exempted Securities ):
(i) shares of Series A Junior Participating Cumulative Preferred Stock, par value $.01 per share, of the Company;
(ii) shares of Common Stock, Options or Convertible Securities issued as a dividend or distribution on Series C Preferred Stock;
(iii) shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by Subsection 5.5, 5.6, 5.7 or 5.8;
(iv) shares of Common Stock or Options to purchase such shares issued to employees or directors of the Corporation or any of its subsidiaries pursuant to the Corporations equity incentive plans;
(v) shares of Common Stock, Options or Convertible Securities issued or issuable to banks, equipment lessors or other financial institutions, or to real property lessors, pursuant to a debt financing, equipment leasing or real property leasing transaction that do not exceed an aggregate of 3,000,000 shares of Common Stock (including shares underlying (directly or indirectly) any such Options or Convertible Securities); or
(vi) shares of Common Stock, Options or Convertible Securities issued pursuant to the acquisition of another corporation by the Corporation by merger, purchase of substantially all of the assets or other reorganization or to a joint venture agreement, provided, that such issuances are approved by the Board of Directors of the Corporation.
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(a) If the Corporation at any time or from time to time after the Series C Original Issue Date shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a record date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record date shall have been fixed, as of the close of business on such record date.
(b) If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Series C Conversion Price pursuant to the terms of Subsection 5.4.4, are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Corporation upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Series C Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a record date with respect thereto) shall be readjusted to such Series C Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security. Notwithstanding the foregoing, no readjustment pursuant to this clause (b) shall have the effect of increasing the Series C Conversion Price to an amount which exceeds the lower of (i) the Series C Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) the Series C Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.
(c) If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Series C Conversion Price pursuant to the terms of Subsection 5.4.4 (either because the consideration per share (determined pursuant to Subsection 5.4.5) of the Additional Shares of Common Stock subject thereto was equal to or greater than the Series C Conversion Price then in effect, or because such Option or Convertible Security was issued before the Series C Original Issue Date), are revised after the Series C Original Issue Date as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Corporation upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto (determined in the manner provided in Subsection 5.4.3(a)) shall be deemed to have been issued effective upon such increase or decrease becoming effective.
(d) Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Series C Conversion Price pursuant to the terms of Subsection 5.4.4, the Series C Conversion Price shall be readjusted to such Series C Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.
(e) If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Series C Conversion Price provided for in this Subsection 5.4.3 shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in clauses (b) and (c) of this Subsection 5.4.3) . If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Corporation upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Series C Conversion Price that would result under the terms of this Subsection 5.4.3 at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Series C Conversion Price that such issuance or amendment took place at the time such calculation can first be made.
CP 2 = CP 1 * [(A + B) ÷ (A + C)].
For purposes of the foregoing formula, the following definitions shall apply:
(a) CP 2 shall mean the Series C Conversion Price in effect immediately after such issue of Additional Shares of Common Stock
(b) CP 1 shall mean the Series C Conversion Price in effect immediately prior to such issue of Additional Shares of Common Stock;
(c) A shall mean the number of shares of Common Stock outstanding immediately prior to such issue of Additional Shares of Common Stock (treating for this purpose as outstanding all shares of Common Stock issuable upon exercise of Options outstanding immediately prior to such issue or upon conversion or exchange of Convertible Securities (including the Series C Preferred Stock) outstanding (assuming exercise of any outstanding Options therefor) immediately prior to such issue);
(d) B shall mean the number of shares of Common Stock that would have been issued if such Additional Shares of Common Stock had been issued at a price per share equal to CP 1 (determined by dividing the aggregate consideration received by the Corporation in respect of such issue by CP 1 ); and
(e) C shall mean the number of such Additional Shares of Common Stock issued in such transaction.
(a) Cash and Property : Such consideration shall:
(i) insofar as it consists of cash, be computed at the aggregate amount of cash received by the Corporation, excluding amounts paid or payable for accrued interest;
(ii) insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined in good faith by the Board of Directors of the Corporation; and
(iii) in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Corporation for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (i) and (ii) above, as determined in good faith by the Board of Directors of the Corporation.
(b) Options and Convertible Securities . The consideration per share received by the Corporation for Additional Shares of Common Stock deemed to have been issued pursuant to Subsection 5.4.3, relating to Options and Convertible Securities, shall be determined by dividing:
(i) the total amount, if any, received or receivable by the Corporation as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Corporation upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities; by
(ii) the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.
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(1) the numerator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date, and
(2) the denominator of which shall be the total number of shares of Common Stock issued and outstanding immediately prior to the time of such issuance or the close of business on such record date plus the number of shares of Common Stock issuable in payment of such dividend or distribution.
Notwithstanding the foregoing, (a) if such record date shall have been fixed and such dividend is not fully paid or if such distribution is not fully made on the date fixed therefor, the Series C Conversion Price shall be recomputed accordingly as of the close of business on such record date and thereafter the Series C Conversion Price shall be adjusted pursuant to this subsection as of the time of actual payment of such dividends or distributions; and (b) that no such adjustment shall be made if the holders of Series C Preferred Stock simultaneously receive a dividend or other distribution of shares of Common Stock in a number equal to the number of shares of Common Stock as they would have received if all outstanding shares of Series C Preferred Stock had been converted into Common Stock on the date of such event.
(a) the Corporation shall take a record of the holders of its Common Stock (or other capital stock or securities at the time issuable upon conversion of the Series C Preferred Stock) for the purpose of entitling or enabling them to receive any dividend or other distribution, or to receive any right to subscribe for or purchase any shares of capital stock of any class or any other securities, or to receive any other security; or
(b) of any capital reorganization of the Corporation, any reclassification of the Common Stock of the Corporation, or any Deemed Liquidation Event; or
(c) of the voluntary or involuntary dissolution, liquidation or winding-up of the Corporation,
then, and in each such case, the Corporation will send or cause to be sent to the holders of the Series C Preferred Stock a notice specifying, as the case may be, (i) the record date for such dividend, distribution or right, and the amount and character of such dividend, distribution or right, or (ii) the effective date on which such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up is proposed to take place, and the time, if any is to be fixed, as of which the holders of record of Common Stock (or such other capital stock or securities at the time issuable upon the conversion of the Series C Preferred Stock) shall be entitled to exchange their shares of Common Stock (or such other capital stock or securities) for securities or other property deliverable upon such reorganization, reclassification, consolidation, merger, transfer, dissolution, liquidation or winding-up, and the amount per share and character of such exchange applicable to the Series C Preferred Stock and the Common Stock. Such notice shall be sent at least 10 days prior to the record date or effective date for the event specified in such notice.
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(a) the number of shares of Series C Preferred Stock held by the holder that the Corporation shall redeem on the Redemption Date specified in the Redemption Notice;
(b) the Redemption Date and the Holder Election Redemption Price or the Corporation Election Redemption Price, as applicable;
(c) the date upon which the holders right to convert such shares terminates (as determined in accordance with Subsection 5.1); and
(d) that the holder is to surrender to the Corporation, in the manner and at the place designated, his, her or its certificate or certificates representing the shares of Series C Preferred Stock to be redeemed.
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IN WITNESS WHEREOF , the Corporation has caused this Certificate to be signed this ___ day of May, 2013.
PLUG POWER INC.
By:
Name:
Title:
[Signature Page to Certificate of Designations]
Exhibit B
Form of Registration Rights Agreement
EXHIBIT B
Registration Rights Agreement
This REGISTRATION RIGHTS AGREEMENT (this Agreement ) is made as of May [__], 2013 by and between Plug Power Inc., a Delaware corporation (the Company ), and Air Liquide Investissements d'Avenir et de Demonstration, a company incorporated under the laws of France ( Initial Holder ), each of which is sometimes referred to herein as a Party and collectively as the Parties .
RECITALS
WHEREAS, pursuant to that certain Securities Purchase Agreement, dated as of May 8, 2013, by and between the Company and Initial Holder (the Securities Purchase Agreement ), Initial Holder shall acquire [_____] shares (the Shares ) of the Companys Series C Redeemable Convertible Preferred Stock, par value $0.01 per share ( Series C Preferred Stock ); and
WHEREAS, in connection with Initial Holders investment pursuant to the Securities Purchase Agreement, the Company agreed to provide certain rights to Initial Holder to cause the resale of the shares of the Companys Common Stock, par value $.01 per share (the Common Stock ), issuable upon conversion of the Shares to be registered pursuant to the Securities Act (as defined below); and
WHEREAS, the Parties desire to set forth their rights and obligations relating to the registration of the resale of the Registrable Securities (as defined below) pursuant to the Securities Act;
AGREEMENT
NOW, THEREFORE, in consideration of the purchase of the Shares by Initial Holder pursuant to the Securities Purchase Agreement, and for other good consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
Affiliate shall have the meaning set forth in the Securities Purchase Agreement.
Agreement shall have the meaning set forth in the recitals to this Agreement.
Business Day shall have the meaning set forth in the Securities Purchase Agreement.
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Charter shall mean the Companys Amended and Restated Certificate of Incorporation as amended and in effect as of the date hereof, including the Certificate of Designations creating the Series C Preferred Stock, as amended from time to time.
Closing Date shall have the meaning set forth in the Stock Purchase Agreement.
Common Stock shall have the meaning set forth in the recitals of this Agreement.
Company shall have the meaning set forth in the recitals of this Agreement.
Company Offering shall have the meaning set forth in Section 3.4 hereof.
Effectiveness Period shall mean the period of time commencing on the date the SEC declares the Resale Shelf Registration Statement effective and ending on the Termination Date.
Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Holder shall mean Initial Holder and any subsequent transferee of Registrable Securities as permitted by Section 11 , at such times as such Persons shall own Registrable Securities.
Indemnitee shall have the meaning set forth in Section 7 hereof.
Initial Holder shall have the meaning assigned to such term in the first paragraph of this Agreement.
NASDAQ shall mean the National Association of Securities Dealers Automated Quotations.
Offering Blackout Period shall have the meaning set forth in Section 3.4 hereof.
Person shall have the meaning set forth in the Securities Purchase Agreement.
Prospectus shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, as amended or supplemented by any prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by such Registration Statement, and by all other amendments and supplements to such prospectus, including post-effective amendments, and in each case including all material incorporated by reference therein and excluding all free writing prospectuses as defined in Rule 405 of the Securities Act.
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Registrable Securities shall mean all shares of Common Stock issued or issuable upon conversion of the Shares or as a payment-in-kind dividend on the Shares, and any shares of Common Stock or other securities issued or issuable in respect of Registrable Securities by way of spin-off, dividend, distribution, stock split or in connection with a combination of shares, reclassification, merger, consolidation or reorganization; provided , however , that Registrable Securities shall not include (i) any securities for which a Registration Statement relating to the sale thereof has become effective under the Securities Act and which have been disposed of under such Registration Statement, (ii) any securities sold pursuant to Rule 144, or (iii) any securities held by a person whose registration rights pursuant to this Agreement have terminated pursuant to Section 5 .
Registration Statement shall mean any registration statement of the Company which covers the resale of any of the Registrable Securities under the Securities Act on an appropriate form, and all amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all materials incorporated by reference.
Resale Shelf Registration Statement shall have the meaning set forth in Section 2.1 hereof.
Rule 144 means Rule 144 under the Securities Act (or any successor provision).
SEC shall mean the United States Securities and Exchange Commission.
Securities Act shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
Securities Purchase Agreement shall have the meaning set forth in the recitals of this Agreement.
Selling Holder shall mean, with respect to a specified Registration Statement pursuant to this Agreement, Holders whose Registrable Securities are included in such registration.
Series C Preferred Stock shall have the meaning set forth in the recitals of this Agreement.
Shares shall have the meaning set forth in the recitals of this Agreement.
Suspension Event shall have the meaning set forth in Section 3.3 hereof.
Suspension Event Certificate shall have the meaning set forth in Section 3.3 hereof.
Termination Date shall mean the earlier of (a) the date on which the registration rights of all Persons pursuant to this Agreement have terminated pursuant to Section 5 or (b) the date the Company is acquired in a transaction approved by the Companys Board of Directors (including, without limitation, through a merger, consolidation, stock purchase, or sale of all or substantially all of the Companys assets).
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if to the Company, to:
Plug Power Inc.
968 Albany Shaker Road,
Latham, New York 12110
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Attention: General
Counsel
Facsimile: (518) 782-7884
with a copy (which shall not constitute notice) to:
Goodwin Procter LLP
Exchange Place
Boston, Massachusetts 02109
Attention: Robert P. Whalen, Jr.
Facsimile: (617) 532-1231
if to the Holder, to:
Air Liquide Investissements d'Avenir et de Demonstration
25 rue Marbeuf
75008 Paris
France
Attention: Julien Cristiani
Facsimile: +33 1 44 43 46 48
Email: julien.cristiani@airliquide.com
with a copy (which shall not constitute notice) to:
Air Liquide
Group Legal Department
75 quai dOrsay
75007 Paris
France
In the event of transfer of Registrable Securities, notices given pursuant to this Agreement to a subsequent Holder shall be delivered to the relevant address specified in the relevant agreement in the form of Exhibit B whereby such Holder became bound by the provisions of this Agreement.
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[Signature Page Follows ]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written above.
PLUG POWER INC.
By:
Name:
Title:
AIR LIQUIDE INVESTISSEMENTS DAVENIR ET DE DEMONSTRATION
By: ____________________________
Name:
Title:
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
EXHIBIT A
PLUG POWER INC.
CERTIFICATE OF SUBSEQUENT SALE
Broadridge Corporate Issuer Solutions, Inc.
1717 Arch St., Suite 1300
Philadelphia, PA 19103
RE: Sale of Shares of Common Stock of Plug Power Inc. (the Company) pursuant to the Companys Prospectus dated _______________, 2013 (the Prospectus)
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of Common Stock of the Company included in the table of Selling Shareholders in the Prospectus, that the undersigned has sold the Shares pursuant to the Prospectus and in a manner described under the caption Plan of Distribution in the Prospectus.
Selling Shareholder (the beneficial owner):
Record Holder (e.g., if held in name of nominee):
Restricted Stock Certificate No.(s):
Number of Shares Sold:
Date of Sale:
In the event that you receive a stock certificate(s) representing more shares of Common Stock than have been sold by the undersigned, then you should return to the undersigned a newly issued certificate for such excess shares in the name of the Record Holder and BEARING A RESTRICTIVE LEGEND. Further, you should place a stop transfer on your records with regard to such certificate.
Dated: |
Very truly yours, |
By: |
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Print Name: |
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Title: |
cc: Plug Power Inc., 968 Albany Shaker Road, Latham, New York 12110; Attention: Corporate Secretary
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EXHIBIT B
AGREEMENT TO BE BOUND
BY THE REGISTRATION RIGHTS AGREEMENT
The undersigned, being the transferee of _________ shares of Registrable Securities (as defined in the Registration Rights Agreement between Plug Power Inc. (the Company) and Air Liquide Investissements d'Avenir et de Demonstration, dated [May __,] 2013 (the Registration Rights Agreement)), as a condition to the receipt of such Registrable Securities, acknowledges that matters pertaining to the registration of the resale of such Registrable Securities is governed by the Registration Rights Agreement and the undersigned hereby: (1) acknowledges receipt of a copy of the Registration Rights Agreement, and (2) agrees to be bound as a Holder and a Party by the terms of the Registration Rights Agreement, as the same has been or may be amended from time to time.
Agreed to this ____ day of ______, 201__.
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[ Transferee Name ] |
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By: |
Name: |
Title: |
|
|
Address: |
|
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B-1
Plug Power Secures $6.5 Million Strategic Investment from Air Liquide
Investment is
endorsement of Plug Powers hydrogen fuel cell strategy
by world leader in industrial gas products
LATHAM, NY May 8, 2013 Plug Power Inc. (NASDAQ: PLUG), a leader in providing clean, reliable energy solutions, today announced a $6.5 million (Euro 5 million) strategic investment from its partner Air Liquide, which includes a preferred stock purchase, increased ownership of the companies HyPulsion joint venture and an engineering services contract.
The investment is a significant endorsement of Plug Powers strategy to grow its business of hydrogen fuel cells for forklift trucks and other horizontal markets. The company has seen sales of its GenDrive fuel cells increase by 36 percent in 2012. The products have been successfully deployed at customers such as Walmart, Sysco, P&G, BMW and the recently announced Ace Hardware Corp.
Including this investment, the company has raised $12 million so far in 2013.
Air Liquide is a respected industry player, which is why this investment is a great validation of Plug Powers strategy, said Andy Marsh, Plug Power President and CEO. The additional funds will be instrumental in providing the liquidity we need for growth. But the endorsement and board expertise we also get is just as important.
Transaction Details
Air Liquides investment in Plug Power includes the following components:
A $2.6 million (Euro 2 million) investment in convertible preferred stock with a 60 percent conversion premium to market and an 8 percent coupon. As part of this stock purchase, an Air Liquide representative will join Plug Powers board. The parties have signed a Securities Purchase Agreement for the investment and the transaction is expected to close no later than May 22 nd .
Air Liquide also purchased from Plug Power a 25 percent ownership interest in HyPulsion for $3.3 million (Euro 2.5 million). HyPulsion is a joint venture between Axane, an Air Liquide subsidiary, and Plug Power to market hydrogen fuel cells into European markets. After the investment, Plug Power owns 20 percent of HyPulsion, but has the right to purchase a majority interest in 2018.
The companies have also signed a $659,000 (Euro 500,000) engineering service contract in order to accelerate the development of the European market for hydrogen forklift with the Europeanization of key components.
Further details relating to the preferred stock investment and related transactions can be found in Plug Powers Current Report on Form 8-K filed today with the Securities and Exchange Commission.
About Plug Power Inc.
The architects of modern fuel cell technology, Plug Power revolutionized the industry with cost-effective power solutions that increase productivity, lower operating costs and reduce carbon footprints. Long-standing relationships with industry leaders forged the path for Plug Powers key accounts, including Walmart, Sysco, P&G and Mercedes. With more than 3,000 GenDrive units deployed to material handling customers, accumulating over 8 million hours of runtime, Plug Power manufactures tomorrows incumbent power solutions today. Additional information about Plug Power is available at www.plugpower.com.
Safe Harbor Statement
This communication contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These statements are based on current expectations that are subject to certain assumptions, risks and uncertainties, any of which are difficult to predict, are beyond our control and that may cause our actual results to differ materially from the expectations in such forward-looking statements, including the risk that we may not have sufficient cash to fund our operations to profitability and that we may be required to seek strategic alternatives, including but not limited to a potential business combination or a sale of the company, or reduce and/or cease our operations, that unit orders will not ship, be installed and/or convert to revenue, in whole or in part; development of our products may take longer and cost more than we expect and we may not be able to raise the necessary capital to fund such development costs; we may not be able to increase the margin on the sale of our products as much as expected or at all ; our actual net cash used for operating expenses may exceed our projected net cash for operating expenses; the fuel and fueling infrastructures for our products may not be available or may cost more than expected; our GenDrive system may not reach wider market acceptance; we may not be able to establish and maintain necessary relationships with third parties for product development, manufacturing, distribution and servicing and the supply of key product components; components and parts for our products may not be available or may cost more than expected; we may be unable to develop commercially viable products; we may be unable to reduce product and manufacturing costs; we may be unable to successfully expand our product lines; we may be unable to improve system reliability for GenDrive; we may suffer price competition and competition from other traditional and alternative energy companies; we may be unable to manufacture products on a large-scale commercial basis; we may be unable to protect our intellectual property; compliance with current and future governmental regulations may be costly; and other risks and uncertainties discussed under "Item IA-Risk Factors" in our annual report on Form 10-K for the fiscal year ended December 31, 2012, filed with the Securities and Exchange Commission ("SEC") on April 1, 2013 and as amended on April 30, 2013, and the reports we file from time to time with the SEC. We do not intend to, and we undertake no duty to update any forward-looking statements as a result of new information or future events.
For additional information contact:
David Rodewald / Amber Hack +1 805-494-9508
The David James Agency | Plug Power
plugpower@davidjamesagency.com