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 16, 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,
|
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.
As previously reported on the Current Report on Form 8-K filed on May 8, 2013, Plug Power Inc. (the Company) entered into a Securities Purchase Agreement (the Purchase Agreement), dated as of May 8, 2013, with Air Liquide Investissements d'Avenir et de Demonstration (Air Liquide). A copy of the Purchase Agreement was filed with the Current Report on Form 8-K, filed on May 8, 2013, as Exhibit 10.1.
On May 16, 2013, the Company consummated the transactions contemplated by the Purchase Agreement, including issuing 10,431 shares of the Companys Series C Redeemable Convertible Preferred Stock, par value $0.01 per share (the Series C Preferred Stock), and entering into a Registration Rights Agreement (the Registration Rights Agreement) with Air Liquide. Under the Registration Rights Agreement, the Company has agreed to register for resale all shares of the Companys common stock, par value $0.01 per share (the Common Stock), issued or issuable upon conversion of shares of the Series C Preferred Stock and as a payment-in-kind dividend on the shares of Series C Preferred Stock. The foregoing summary is qualified in its entirety by the full text of the Registration Rights Agreement, a copy of which is filed herewith as Exhibit 10.1 and incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On May 16, 2013, the Company filed a Certificate of Designations of Series C Redeemable Convertible Preferred Stock with the Secretary of State of the State of Delaware establishing the rights, preferences, privileges, qualifications, restrictions and limitations relating to the Series C Preferred Stock. The Series C Preferred Stock ranks senior to the Common Stock with respect to rights upon the liquidation, dissolution or winding up of the Company. The Series C Preferred Stock is 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 is 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 has customary redemption rights at the election of either the Company or Air Liquide on or after May 8, 2016 as well as weighted average anti-dilution protection. The Series C Preferred Stock votes together with the Common Stock on an as-converted basis on all matters, except as otherwise required by law. The foregoing summary is qualified in its entirety by the full text of the Certificate of Designations of Series C Redeemable Convertible Preferred Stock, a copy of which is filed herewith as Exhibit 3.1 and incorporated herein by reference
Item 7.01. Regulation FD Disclosure.
The Company issued a press release announcing the consummation of the transactions contemplated by the Purchase Agreement. 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 8.01. Other Events.
The Companys 2013 annual meeting of stockholders has been scheduled for June 27, 2013 (the Annual Meeting). Because the date of the Annual Meeting has been changed by more than 30 days from the date of the previous year's annual meeting of stockholders, the deadline for shareholders to submit shareholder proposals for inclusion in the Companys proxy statement and form of proxy to be distributed by the Board of Directors in accordance with Rule 14a-8 under the Exchange Act will be the close of business on May 24, 2013, which the Company believes is a reasonable time before it expects to begin to print and send its proxy materials. Any such proposal should be mailed to: Corporate Secretary, Plug Power Inc., 968 Albany Shaker Road, Albany, New York 12110. Such proposal must also comply with the requirements as to form and substance established by the SEC for such a proposal to be included in the proxy statement and form of proxy.
Item 9.01. Financial Statements and Exhibits.
(d) |
Exhibits. |
|
|
3.1 |
Certificate of Designations of Series C Redeemable Convertible Preferred Stock. |
|
|
10.1 |
Registration Rights Agreement, dated as of May 16, 2013, between Plug Power Inc. and Air Liquide Investissements d'Avenir et de Demonstration. |
|
|
99.1 |
Press Release, dated May 16, 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. |
|
|
|
|
|
Date: May 20, 2013 |
By: /s/ Gerard L. Conway, Jr. |
Name: Gerard L. Conway, Jr. |
|
Title: General Counsel and Corporate Secretary |
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EXHIBIT INDEX
Exhibit No. Description
3.1 |
Certificate of Designations of Series C Redeemable Convertible Preferred Stock. |
|
|
10.1 |
Registration Rights Agreement, dated as of May 16, 2013, between Plug Power Inc. and Air Liquide Investissements d'Avenir et de Demonstration. |
|
|
99.1 |
Press Release, dated May 16, 2013. |
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CERTIFICATE OF DESIGNATIONS
SERIES C REDEEMABLE CONVERTIBLE
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,
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 Ten Thousand Four Hundred Thirty-One (10,431) 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
3.1 Preferential Payments to Holders of Series C Preferred Stock . In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the holders of shares of Series C Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Corporation available for distribution to its stockholders before any payment shall be made to the holders of Common Stock by reason of their ownership thereof, an amount per share equal to the greater of (i) the Series C Original Issue Price, plus any Series C Accruing Dividends accrued but unpaid thereon, whether or not declared, together with any other dividends declared but unpaid thereon, or (ii) such amount per share as would have been payable had all shares of Series C Preferred Stock been converted into Common Stock pursuant to Section 5 immediately prior to such liquidation, dissolution, winding up or Deemed Liquidation Event (the amount payable pursuant to this sentence is hereinafter referred to as the Series C Liquidation Amoun t). If upon any such liquidation, dissolution or winding up of the Corporation or Deemed Liquidation Event, the assets of the Corporation available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series C Preferred Stock the full amount to which they shall be entitled under this Subsection 3.1, the holders of shares of Series C Preferred Stock shall share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
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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).
The holders of the Series C Preferred Stock shall have conversion rights as follows (the Conversion Rights ):
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(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.
(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.
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(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 16th day of May, 2013.
PLUG POWER INC. |
By:
/s/ Andrew Marsh
|
[Signature Page to Certificate of Designations]
Registration Rights Agreement
This REGISTRATION RIGHTS AGREEMENT (this Agreement ) is made as of May 16, 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 Ten Thousand Four Hundred Thirty-One (10,431) 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).
2.1 Registration Statement Covering Resale of Registrable Securities . Not later than May 31, 2013, the Company shall file with the SEC a shelf registration statement on Form S-3 pursuant to Rule 415 under the Securities Act covering all of the Registrable Securities registering the resale on a delayed or continuous basis of all such Registrable Securities by the Holders (a Resale Shelf Registration Statement ). The Company shall use its best efforts to have the Resale Shelf Registration Statement declared effective under the Securities Act as expeditiously as reasonably practicable following the filing of the Resale Shelf Registration Statement. The Company agrees to use its best efforts to maintain the effectiveness of the Resale Shelf Registration Statement, including by filing any necessary post-effective amendments and prospectus supplements during the Effectiveness Period; provided that the effectiveness of the Resale Shelf Registration Statement need not be maintained for the purposes of registering the resale of securities that no longer constitute Registrable Securities or at any time when the Company is not eligible to file a registration statement on Form S-3 (or any similar or successor form) for the purpose of registering the resale of the Registrable Securities. If, during the Effectiveness Period, the Company becomes eligible to file a registration statement on Form S-3 (or any similar or successor form) for the purpose of registering the resale of the Registrable Securities at any time when a Resale Shelf Registration Statement is not effective, the Company, shall promptly file a Resale Shelf Registration Statement and use best efforts to have such Resale Registration Statement become effective as expeditiously as reasonably practicable in accordance with the procedures described above.
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3.1 The Company shall promptly notify each Holder in writing of the issuance by the SEC of any stop order suspending the effectiveness of a Registration Statement with respect to such Holders Registrable Securities or the initiation of any proceedings for that purpose. The Company shall use best efforts to obtain the withdrawal of any order suspending the effectiveness of such a Registration Statement as promptly as reasonably possible and promptly notify in writing each Holder of Registrable Securities covered by such registration statement of the withdrawal of any such order.
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8. Covenants of the Holder . Each of the Holders hereby agrees (i) to cooperate with the Company and to furnish to the Company the information concerning such Holder, its plan of distribution and its ownership interests in securities of the Company in connection with the preparation of a Registration Statement or Prospectus with respect to such Holders Registrable Securities and any filings with any state securities commissions as the Company may reasonably request (and to promptly notify the Company of any material changes in such information set forth in a Registration Statement prior to and during the effectiveness of such Registration Statement), (ii) that it will not make any offer relating to the Registrable Securities that would constitute a free writing prospectus as defined in Rule 405 under the Securities Act, and (iii) to indemnify the Company, its officers, directors, employees, agents, representatives and Affiliates, and each person, if any, who controls the Company within the meaning of the Securities Act, and each other person or entity, if any, subject to liability because of his, her or its connection with the Company, against any and all losses, claims, damages, actions, liabilities, costs and expenses arising out of or based upon (A) any untrue statement or alleged untrue statement of material fact contained in either such Registration Statement or the Prospectus contained therein, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, if and to the extent that such statement or omission occurs from reliance upon and in conformity with information regarding such Holder or its plan of distribution or its ownership interests, which was furnished to the Company in writing by such Holder for use therein, or (B) an untrue statement or alleged untrue statement contained in any offer made by such Holder relating to the Registrable Securities that constitutes a free writing prospectus as defined in Rule 405 of the Securities Act.
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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. |
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By: /s/ Andrew Marsh |
Name: Andrew Marsh |
Title: President and Chief Executive Officer |
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AIR LIQUIDE INVESTISSEMENTS DAVENIR ET DE DEMONSTRATION |
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By: /s/ Pierre-Etienne Franc |
Name: Pierre-Etienne Franc |
Title: Chief Executive Officer |
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
[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: |
|
Print Name: |
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Title: |
cc: Plug Power Inc., 968 Albany Shaker Road, Latham, New York 12110; Attention: Corporate Secretary
A-1
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 16, 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__.
[ Transferee Name ]
By:
Name:
Title:
Address:
B-1
Plug Power Closes Preferred Stock Sale to Air Liquide
LATHAM, NY May 20, 2013 Plug Power Inc. (NASDAQ: PLUG), a leader in providing clean, reliable energy solutions, today announced that the preferred stock investment by Air Liquide closed on May 16.
Plug Power issued 10,431 shares of convertible Series C Preferred Stock to Air Liquide and realized $2,595,400 in gross proceeds from the stock sale. The stock is entitled to receive dividends at a rate of 8 percent per year and is convertible into shares of common stock at a conversion price equal to $0.248794 per share. More details are available in the Form 8-K that Plug Power filed today with the Securities and Exchange Commission.
As Plug Power announced on May 8, the preferred stock sale was part of a $6.5 million strategic investment by Air Liquide that is a significant endorsement of Plug Powers strategy to grow its business of hydrogen fuel cells for forklift trucks and other horizontal markets.
Other components of that investment include: Plug Powers sale of a 25 percent ownership interest in HyPulsion, a joint venture between Axane, an Air Liquide subsidiary, and Plug Power, for $3.3 million and a $659,000 engineering service contract to develop European versions of Plug Powers hydrogen fuel cells for forklifts. An Air Liquide representative will also join Plug Powers board of directors as part of the agreement.
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