|
|
|
|
|
|
|
|
|
|
Per Share
|
|
Total
|
|
Per Share
|
|
|
$
|
|
|
$
|
|
Underwriting discount(1)
|
|
|
$
|
|
|
$
|
|
Total
|
|
|
$
|
|
|
$
|
|
-
(1)
-
The underwriter will receive compensation in addition to the underwriting discount. See "Underwriters" beginning on page S-20 of this prospectus supplement
for a description of the compensation paid to the underwriter.
We have granted the underwriter an option for a period of 30 days to purchase up to an additional $225,000,000 of our common stock from us at the public offering price,
less the underwriting discount.
Neither the Securities and Exchange Commission, any state securities commission, nor any other regulatory body has approved or disapproved of these
securities or determined if this prospectus supplement and the accompanying prospectus are truthful and complete. Any representation to the contrary is a criminal offense.
Delivery of the common stock at the closing of the offering is expected to be made on or about January , 2021.
Morgan Stanley
The date of this prospectus supplement is January , 2021.
Table of Contents
TABLE OF CONTENTS
Prospectus Supplement
Prospectus
S-i
Table of Contents
ABOUT THIS PROSPECTUS SUPPLEMENT
This document is part of the registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a "shelf"
registration process and consists of two parts. The first part is this prospectus supplement, including the documents incorporated by reference, which describes the specific terms of this offering.
The second part, the accompanying
prospectus, including the documents incorporated by reference, gives more general information, some of which may not apply to this offering. Generally, when we refer only to the "prospectus," we are
referring to both parts combined. This prospectus supplement may add to, update or change information in the accompanying prospectus and the documents incorporated by reference into this prospectus
supplement or the accompanying prospectus.
If
information in this prospectus supplement is inconsistent with the accompanying prospectus or with any document incorporated by reference that was filed with the SEC before the date
of this prospectus supplement, you should rely on this prospectus supplement. This prospectus supplement, the accompanying prospectus and the documents incorporated into each by reference include
important information about us, the securities being offered and other information you should know before investing in our securities. You should read the entire prospectus supplement and the
accompanying prospectus carefully, including "Risk Factors" contained in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein and therein and the
financial statements incorporated by reference in this prospectus supplement and the accompanying prospectus, before making an investment decision. You should also read and consider information in the
documents we have referred you to in the section of this prospectus supplement and the accompanying prospectus entitled "Incorporation by Reference," "Incorporation of Certain Information by
Reference" and "Where You Can Find Additional Information" as well as any free writing prospectus provided in connection with this offering.
You
should rely only on this prospectus supplement, the accompanying prospectus, and any free writing prospectus provided in connection with this offering and the information
incorporated or deemed to be incorporated by reference in this prospectus supplement and the accompanying prospectus. We have not, and the underwriter has not, authorized anyone to provide you with
information that is in addition to or different from that contained or incorporated by reference in this prospectus supplement, the accompanying prospectus, and any free writing prospectus provided in
connection with this offering. If anyone provides you with different or inconsistent information, you should not rely on it. We and the underwriter take no responsibility for, and can provide no
assurance as to the reliability of, any other information that others may give you. We and the underwriter are not offering to sell these securities in any jurisdiction where the offer or sale is not
permitted. You should not assume that the information contained or incorporated by reference in this prospectus supplement, the accompanying prospectus, or any free writing prospectus provided in
connection with this offering is accurate as of any date other than as of the date of this prospectus supplement, the accompanying prospectus, or such free writing prospectus, as the case may be, or
in the case of the documents incorporated by reference, the date of such documents regardless of the time of delivery of this prospectus supplement and the accompanying prospectus or any sale of our
securities. Our business, financial condition, liquidity, results of operations and prospects may have changed since those dates.
Neither
we nor the underwriter have done anything that would permit this offering or possession or distribution of this prospectus supplement, the accompanying prospectus or any free
writing prospectus in any jurisdiction where action for that purpose is required, other than in the United States. Persons who come into possession of this prospectus supplement, the accompanying
prospectus and any free writing prospectus related to this offering in jurisdictions outside the United States are required to inform themselves about and to observe any restrictions as to this
offering and the distribution of this prospectus supplement, the accompanying prospectus and any such free writing prospectus applicable to that jurisdiction.
S-1
Table of Contents
The
industry and market data contained or incorporated by reference in this prospectus supplement are based either on our management's own estimates or on independent industry
publications, reports by market research firms or other published independent sources. Although we believe these sources are reliable, we have not independently verified the information and cannot
guarantee its accuracy and completeness, as industry and market data are subject to change and cannot always be verified with complete certainty due to limits on the availability and reliability of
raw data, the voluntary nature of the data gathering process and other limitations and uncertainties inherent in any statistical survey of market shares. Accordingly, you should be aware that the
industry and market data contained or incorporated by reference in this prospectus supplement, and estimates and beliefs based on such data, may not be reliable. Unless otherwise indicated, all
information contained or incorporated by reference in this prospectus supplement concerning our industry in general or any segment thereof, including information regarding our general expectations and
market opportunity, is based on management's estimates using internal data, data from industry related publications, consumer research and marketing studies and other externally obtained data.
This
prospectus supplement and the information incorporated herein by reference includes trademarks, service marks and trade names owned by us or other companies. All trademarks, service
marks and trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing prospectus are the property of their respective
owners.
S-2
Table of Contents
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement and the accompanying prospectus contain and/or incorporate by reference statements that are not historical facts and
are considered forward-looking within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, or the
Exchange Act. These forward-looking statements contain projections of our future results of operations or of our financial position or state other forward-looking information. In some cases, you can
identify these statements by forward-looking words such as "anticipate," "believe," "could," "continue," "estimate," "expect," "intend," "may," "should,"
"will," "would," "plan," "projected" or the negative of such words or other similar words or phrases. We believe that it is important to communicate our future expectations to our investors. However,
there may be events in the future that we are not able to accurately predict or control and that may cause our actual results to differ materially from the expectations we describe in our
forward-looking statements. Investors are cautioned not to unduly rely on forward-looking statements because they involve risks and uncertainties, and actual results may differ materially from those
discussed as a result of various factors, including, but not limited to: the risk that we continue to incur losses and might never achieve or maintain profitability; the risk that we will need to
raise additional capital to fund our operations and such capital may not be available to us; the risk that the joint venture with SK Holdings (as defined below) will not be consummated or successful
or that the SK Investment (as defined below) will not be consummated; the risk that the memorandum of understanding with Groupe Renault will not result in a joint venture or that the joint venture
will be unsuccessful; the risk of dilution to our stockholders and/or stock price should we need to raise additional capital; the risk that our lack of extensive experience in manufacturing and
marketing products may impact our ability to manufacture and market products on a profitable and large-scale commercial basis; the risk that unit orders may not ship, be installed and/or converted to
revenue, in whole or in part; the risk that a loss of one or more of our major customers, or if one of our major customers delays payment of or is unable to pay its receivables, a material adverse
effect could result on our financial condition; the risk that a sale of a significant number of shares of stock could depress the market price of our common stock; the risk that our convertible senior
notes, if settled in cash, could have a material effect on our financial results; the risk that our convertible note hedges may affect the value of our convertible senior notes and our common stock;
the risk that negative publicity related to our business or stock could result in a negative impact on our stock value and profitability; the risk of potential losses related to any product liability
claims or contract disputes; the risk of loss related to an inability to maintain an effective system of internal controls; our ability to attract and maintain key personnel; the risks related to the
use of flammable fuels in our products; the risk that pending orders may not convert to purchase orders, in whole or in part; the cost and timing of developing, marketing and selling our products; the
risks of delays in or not completing our product development goals; our ability to obtain financing arrangements to support the sale or leasing of our products and services to customers; our ability
to achieve the forecasted gross margin on the sale of our products; the cost and availability of fuel and fueling infrastructures for our products; the risks, liabilities, and costs related to
environmental, health and safety matters; the risk of elimination of government subsidies and economic incentives for alternative energy products; market acceptance of our products and services,
including GenDrive, GenSure and GenKey systems; our ability to establish and maintain relationships with third parties with respect to product development, manufacturing, distribution and servicing,
and the supply of key product components; the cost and availability of components and parts for our products; the risk that possible new tariffs could have a material adverse effect on our business;
our ability to develop commercially viable products; our ability to reduce product and manufacturing costs; our ability to successfully market, distribute and service our products and services
internationally; our ability to improve system reliability for our products; competitive factors, such as price competition and competition from other traditional and alternative energy companies; our
ability to protect our intellectual property; the risk of dependency on information technology on our operations and the failure of such technology; the cost of complying with current and future
federal, state and international governmental regulations; our subjectivity to legal proceedings and legal compliance; the risks associated with potential future
S-3
Table of Contents
acquisitions;
the volatility of our stock price; and other risks and uncertainties described herein, as well as those risks and uncertainties referenced under "Risk Factors" of this prospectus
supplement and in the accompanying prospectus or any free writing prospectus provided in connection with this offering and any documents incorporated by reference herein or therein.
Although
we presently believe that the plans, expectations and anticipated results expressed in or suggested by the forward-looking statements contained in or incorporated by reference
into this prospectus are reasonable, all forward-looking statements are inherently subjective, uncertain and subject to change, as they involve substantial risks and uncertainties, including those
beyond our control. New factors emerge from time to time, and it is not possible for us to predict the nature, or assess the potential impact, of each new factor on our business. Given these
uncertainties, we caution you not to place undue reliance on these forward-looking statements. These forward-looking statements speak only as of the date on which the statements were made and are not
guarantees of future performance. Except as may be required by applicable law, we do not undertake or intend to update any forward-looking statements after the date of this prospectus supplement or
the respective dates of documents incorporated herein or therein or any free writing prospectus provided in connection with this offering that include forward-looking statements.
The
above list of risks and uncertainties is only a summary of some of the most important factors and is not intended to be exhaustive. Additional information regarding risk factors that
may affect us is included in our Annual Report on Form 10-K for the year ended
December 31, 2019, as amended and supplemented by our Quarterly Reports on Form 10-Q, all of which are incorporated herein by reference. The risk factors contained in our
Annual Report and Quarterly Report are updated by us from time to time in subsequent Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other filings we make with the SEC.
S-4
Table of Contents
SUMMARY
This summary highlights selected information contained elsewhere or incorporated by reference in this prospectus
supplement and the accompanying prospectus. This summary may not contain all the information that you should consider before investing in our securities. You should read the entire prospectus
supplement and the accompanying prospectus carefully, including "Risk Factors" contained in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference herein
and therein and the financial statements incorporated by reference in this prospectus supplement and the accompanying prospectus, before making an investment decision. This prospectus supplement may
add to, update or change information in the accompanying prospectus. All references in this prospectus supplement or the accompanying prospectus to "Plug Power," the "Company," "we," "us," or "our"
mean Plug Power Inc. and its subsidiaries, unless we state otherwise or the context otherwise requires.
Overview
As a leading provider of comprehensive hydrogen fuel cell turnkey solutions, we are seeking to build a green hydrogen economy. We are focused on
hydrogen and fuel cell systems that are used to power electric motors primarily in the electric mobility and stationary power markets, given the ongoing paradigm shift in the power, energy, and
transportation industries to address climate change, energy security, and meet sustainability goals. Plug Power created the first commercially viable market for hydrogen fuel cell, or the HFC
technology. As a result, we have deployed over 40,000 fuel cell systems, and have become the largest buyer of liquid hydrogen, having built and operated a hydrogen network across North America.
Products and Services
We are focused on proton exchange membrane, or PEM, fuel cell and fuel processing technologies, fuel cell/battery hybrid technologies, and
associated hydrogen storage and dispensing infrastructure from which multiple products are available. A fuel cell is an electrochemical device that combines hydrogen and oxygen to produce electricity
and heat without combustion. Hydrogen is derived from multiple sources. The majority of liquid hydrogen in the United States is produced using the steam methane reforming process and utilizing
by-product hydrogen from chlor alkali production. By-product hydrogen from a chlor alkali plant is considered to be low carbon
hydrogen and in some cases, considered green hydrogen, depending on the source of electricity and geographic location. We source a significant amount of liquid hydrogen based on the chlor alkali
process today. Additionally, we manufacture and sell fuel cell products to replace batteries and diesel generators in stationary backup power applications. These products have proven valuable with
telecommunications, transportation and utility customers as robust, reliable and sustainable power solutions.
We
provide and continue to develop commercially-viable hydrogen and fuel cell solutions for industrial mobility applications (including electric forklifts and electric industrial
vehicles) at multi shift high volume manufacturing and high throughput distribution sites where we believe our products and services provide a unique combination of productivity, flexibility and
environmental benefits. In June of 2020, we completed the acquisitions of United Hydrogen Group, Inc. and Giner ELX, Inc. in line with our hydrogen vertical integration strategy, with
plans to have more than 50% of the hydrogen used by Plug Power to be green by 2024. We believe these acquisitions further enhance our position in the hydrogen industry with capabilities in generation,
liquefaction and distribution of hydrogen fuel complementing our industry-leading position in the design, construction, and operation of customer-facing hydrogen fueling stations. We believe these
acquisitions establish a pathway for Plug Power to transition from low-carbon to zero-carbon hydrogen solutions.
Our
current products and services include:
GenDrive: GenDrive is our hydrogen fueled PEM fuel cell system providing power to material handling electric vehicles, including
class 1, 2, 3
and 6 electric forklifts and ground support equipment;
S-5
Table of Contents
GenFuel: GenFuel is our hydrogen fueling delivery, generation, storage and dispensing system;
GenCare: GenCare is our ongoing 'internet of things'-based maintenance and on-site service program for GenDrive fuel cell systems,
GenSure fuel cell
systems, GenFuel hydrogen storage and dispensing products and ProGen fuel cell engines;
GenSure: GenSure is our stationary fuel cell solution providing scalable, modular PEM fuel cell power to support the backup and
grid-support power
requirements of the telecommunications, transportation, and utility sectors;
GenKey: GenKey is our vertically integrated "turn-key" solution combining either GenDrive or GenSure fuel cell power with GenFuel fuel
and GenCare
aftermarket service, offering complete simplicity to customers transitioning to fuel cell power; and
ProGen: ProGen is our fuel cell stack and engine technology currently used globally in mobility and stationary fuel cell systems, and
as engines in
electric delivery vans. This includes the Plug Power MEA (membrane electrode assembly), a critical component of the fuel cell stack used in zero-emission fuel cell electric vehicle engines, in which
Plug Power is the largest producer in North America.
We
provide our products worldwide through our direct product sales force, and by leveraging relationships with original equipment manufacturers and their dealer networks. We manufacture
our commercially-viable products in Latham, NY, Rochester, NY and Spokane, WA and support liquid hydrogen generation and logistics in Charleston, TN.
Recent Developments
Strategic Investment with SK Holdings Co., Ltd.
On January 6, 2021, we announced a strategic partnership with SK Holdings Co., Ltd. ("SK Holdings") to accelerate the use
of hydrogen as an alternative energy source in Asian markets. In conjunction with this partnership, we entered into a stock purchase agreement (the "Stock Purchase Agreement") with a subsidiary of SK
Holdings pursuant to which we agreed to sell 51,428,119 shares of our common stock, subject to the SK Top-Up Right described below, at a purchase price of $29.2893 per share, or an aggregate purchase
price of approximately $1.5 billion (the "SK Investment"). If we issue shares of common stock prior to the closing of the SK Investment, including the shares issued in this offering, SK
Holdings may, at its option, purchase additional shares of common stock, at the same purchase price of $29.2893 per share, equal to 9.9% of the shares issued, calculated on a pro forma basis ("SK
Top-Up Right"). The SK Investment is subject to customary closing conditions, including the receipt of all approvals or the termination or expiration of all waiting periods required under applicable
antitrust laws. We expect the SK Investment to be consummated in the first quarter of 2021. Simultaneous with the execution of the Stock Purchase Agreement, we entered into a non-binding Asia JV
framework agreement with a subsidiary of SK Holdings with respect to a potential joint venture in Asia to bring hydrogen solutions to Korea, China and Vietnam ("Asia JV"). The parties have agreed to
negotiate exclusively with one another for up to eighteen months with respect to the proposed Asia JV with the objective of executing definitive agreements. We cannot assure you that the SK Investment
will be consummated on the anticipated schedule or at all, or that the Asia JV will be consummated, or that, if consummated, it will be successful.
Joint Venture with Groupe Renault
On January 12, 2021, we announced a non-binding memorandum of understanding with Groupe Renault, a top automotive player, to launch a
50-50 joint venture based in France by the end of the first half of 2021. The joint venture will seek to establish state-of-the-art innovation and manufacturing capabilities for hydrogen fuel cell
systems and their integration in vehicles in France and target over 30%
S-6
Table of Contents
share
of the fuel cell-powered light commercial vehicle market in Europe. We can provide no assurance that this joint venture will be consummated, or that, if consummated, it will be successful.
Corporate Information
We were organized in the State of Delaware on June 27, 1997. Our principal executive offices are located at 968 Albany-Shaker Road,
Latham, New York, 12110, and our telephone number is (518) 782-7700. Our corporate website address is www.plugpower.com. The information found on, or otherwise accessible through, our website
is not deemed to be a part of this prospectus or any applicable prospectus supplement. Our common stock trades on the Nasdaq Capital Market under the symbol "PLUG." As of September 30, 2020, we
had 855 employees, including 302 temporary employees.
S-7
Table of Contents
THE OFFERING
|
|
|
Common stock to be offered by us
|
|
shares of our common stock.
|
Option to purchase additional shares from us
|
|
We have granted the underwriter an option for 30 days from the date of this prospectus supplement to purchase up to additional shares of our common stock.
|
Common stock to be outstanding immediately following this offering
|
|
shares (or shares if the underwriter's option to purchase additional shares from us is exercised in
full).
|
Use of proceeds
|
|
We estimate that the net proceeds from this offering will be approximately $ million (or approximately
$ million if the underwriter exercises its option to purchase additional shares in full), after deducting the underwriting discounts and estimated offering expenses payable by us.
We intend to use the net proceeds from this offering for working capital and other general corporate purposes, which may include capital expenditures, potential acquisitions, growth opportunities and strategic transactions. See "Use of
Proceeds."
|
Risk factors
|
|
Investing in our common stock involves a high degree of risk. See "Risk Factors" and other information included in this prospectus supplement, the accompanying prospectus and the documents incorporated by reference in this prospectus supplement and
the accompanying prospectus for a discussion of factors you should carefully consider before deciding to invest in shares of our common stock.
|
Nasdaq Capital Market Symbol
|
|
PLUG.
|
The
number of shares of our common stock to be outstanding after this offering is based on 469,267,768 shares of common stock outstanding as of January 22, 2021 and
excludes:
-
-
9,141,908 shares of common stock issuable upon the exercise of stock options, at a weighted average exercise price of $6.18 per share;
-
-
5,869,642 shares of common stock issuable upon the vesting of restricted stock units;
-
-
104,753,740 shares of common stock issuable upon the exercise of warrants;
-
-
42,186,802 shares of common stock issuable upon conversion of the 3.75% Convertible Senior Notes due June 2025 at a conversion rate of 198.6196
shares;
-
-
5,926,417 shares of common stock in treasury; and
-
-
855,612 shares of our common stock reserved for future issuance under our equity incentive plans.
In
addition, upon the completion of the SK Investment, we expect to issue 51,428,119 shares of our common stock, plus any additional shares issuable upon the exercise of the SK Top-Up
Right, at a purchase price $29.2893 per share.
Except
as otherwise indicated, the information in this prospectus supplement assumes no exercise by the underwriter of its option to purchase additional shares of our common stock from
us.
S-8
Table of Contents
SUMMARY SELECTED CONSOLIDATED FINANCIAL DATA
The following table presents our summary selected consolidated financial and other data. The summary selected consolidated financial and other
data should be read in conjunction with our consolidated financial statements and the related notes thereto and the related "Management's Discussion and Analysis of Financial Condition and Results of
Operations" in our Form 10-K for the year ended December 31,
2019 and in our subsequent reports on Form 10-Q for the quarterly periods ended
March 31, 2020,
June 30, 2020 and
September 30, 2020, each of which is incorporated by
reference herein. The consolidated statements of operations data for the years ended December 31, 2019, 2018 and 2017 and the balance sheet data as of December 31, 2019 and 2018 are
derived from the audited consolidated financial statements in our Form 10-K for the
year ended December 31, 2019 incorporated by reference herein. The unaudited consolidated statement of operations data for the nine months ended September 30, 2020 and
2019 and the unaudited balance sheet data as of September 30, 2020 are derived from the unaudited consolidated financial statements in our
Quarterly Report on Form 10-Q for the quarter ended September 30,
2020 incorporated by reference herein. These unaudited consolidated financial statements have been prepared on a basis consistent with our audited consolidated financial statements and,
in the opinion of management, reflect all adjustments, consisting of only normal and recurring adjustments necessary for a fair presentation of our results of operations, financial position and cash
flows for the period presented. Our historical results are not necessarily indicative of the results that may be expected in the future, and our interim period results are not necessarily indicative
of results to be expected for a full year or any other interim period.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
Year ended December 31,
|
|
|
|
2020
|
|
2019
|
|
2019
|
|
2018
|
|
2017
|
|
|
|
(unaudited)
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
(in thousands, except share and per share data)
|
|
Statements Of Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue(1):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of fuel cell systems and related infrastructure
|
|
$
|
151,661
|
|
$
|
80,117
|
|
$
|
149,884
|
|
$
|
107,292
|
|
$
|
62,631
|
|
Services performed on fuel cell systems and related infrastructure
|
|
|
19,586
|
|
|
17,889
|
|
|
25,217
|
|
|
22,002
|
|
|
16,202
|
|
Power Purchase Agreements
|
|
|
19,854
|
|
|
19,114
|
|
|
25,853
|
|
|
22,869
|
|
|
12,869
|
|
Fuel delivered to customers
|
|
|
24,536
|
|
|
21,320
|
|
|
29,099
|
|
|
22,469
|
|
|
8,167
|
|
Other
|
|
|
235
|
|
|
135
|
|
|
186
|
|
|
|
|
|
284
|
|
Total net revenue
|
|
|
215,872
|
|
|
138,575
|
|
|
230,239
|
|
|
174,632
|
|
|
100,153
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of fuel cell systems and related infrastructure
|
|
|
115,929
|
|
|
50,440
|
|
|
96,859
|
|
|
84,439
|
|
|
54,815
|
|
Services performed on fuel cell systems and related infrastructure
|
|
|
21,746
|
|
|
18,802
|
|
|
28,801
|
|
|
23,698
|
|
|
19,814
|
|
Provision for loss contracts related to service
|
|
|
4,306
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Power Purchase Agreements
|
|
|
42,034
|
|
|
28,064
|
|
|
40,056
|
|
|
36,161
|
|
|
31,292
|
|
Fuel delivered to customers
|
|
|
32,267
|
|
|
25,935
|
|
|
36,357
|
|
|
27,712
|
|
|
22,013
|
|
Other
|
|
|
275
|
|
|
150
|
|
|
200
|
|
|
|
|
|
308
|
|
Total cost of revenue
|
|
|
216,557
|
|
|
123,391
|
|
|
202,273
|
|
|
172,010
|
|
|
128,242
|
|
Gross (loss) profit
|
|
|
(685
|
)
|
|
15,184
|
|
|
27,966
|
|
|
2,622
|
|
|
(28,089
|
)
|
S-9
Table of Contents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended September 30,
|
|
Year ended December 31,
|
|
|
|
2020
|
|
2019
|
|
2019
|
|
2018
|
|
2017
|
|
|
|
(unaudited)
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
(in thousands, except share and per share data)
|
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
32,133
|
|
|
24,334
|
|
|
33,675
|
|
|
33,907
|
|
|
28,693
|
|
Selling, general and administrative
|
|
|
46,948
|
|
|
33,351
|
|
|
44,333
|
|
|
38,198
|
|
|
45,010
|
|
Total operating expenses
|
|
|
79,081
|
|
|
57,685
|
|
|
78,008
|
|
|
72,105
|
|
|
73,703
|
|
Operating loss
|
|
|
(79,766
|
)
|
|
(42,501
|
)
|
|
(50,042
|
)
|
|
(69,483
|
)
|
|
(101,792
|
)
|
Interest and other expense, net(2)
|
|
|
(29,930
|
)
|
|
(24,689
|
)
|
|
(35,423
|
)
|
|
(17,849
|
)
|
|
(25,288
|
)
|
Loss before income taxes
|
|
$
|
(109,696
|
)
|
$
|
(67,190
|
)
|
$
|
(85,465
|
)
|
$
|
(87,332
|
)
|
$
|
(127,080
|
)
|
Income tax benefit
|
|
|
24,182
|
|
|
|
|
|
|
|
|
9,217
|
|
|
|
|
Net loss attributable to the Company
|
|
$
|
(85,514
|
)
|
$
|
(67,190
|
)
|
|
(85,465
|
)
|
$
|
(78,115
|
)
|
$
|
(127,080
|
)
|
Preferred stock dividends declared and accretion of discount
|
|
|
(19
|
)
|
|
(39
|
)
|
|
(52
|
)
|
|
(52
|
)
|
|
(3,098
|
)
|
Net loss attributable to common stockholders
|
|
$
|
(85,533
|
)
|
$
|
(67,229
|
)
|
$
|
(85,517
|
)
|
$
|
(78,167
|
)
|
$
|
(130,178
|
)
|
Loss per share, basic and diluted
|
|
$
|
(0.26
|
)
|
$
|
(0.29
|
)
|
$
|
(0.36
|
)
|
$
|
(0.36
|
)
|
$
|
(0.60
|
)
|
Weighted average number of common stock outstanding
|
|
|
330,949,265
|
|
|
229,519,323
|
|
|
237,152,780
|
|
|
218,882,337
|
|
|
216,343,985
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of December 31,
|
|
|
|
As of
September 30,
2020
|
|
|
|
2019
|
|
2018
|
|
|
|
(unaudited)
|
|
|
|
|
|
|
|
(in thousands, except share and per share
data)
|
|
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
Unrestricted cash and cash equivalents
|
|
$
|
448,140
|
|
$
|
139,496
|
|
$
|
38,602
|
|
Total Assets
|
|
|
1,500,629
|
|
|
771,184
|
|
|
390,326
|
|
Noncurrent liabilities
|
|
|
619,334
|
|
|
484,564
|
|
|
209,600
|
|
Stockholders' equity
|
|
|
617,444
|
|
|
134,679
|
|
|
2,713
|
|
Working capital
|
|
|
514,163
|
|
|
162,549
|
|
|
9,245
|
|
-
(1)
-
During
the fourth quarter of 2019, we early-adopted Accounting Standards Update 2019-08, CompensationStock Compensation (Topic 718) with retrospective
adoption as of January 1, 2019 resulting in changes to previously reported 2019 interim financial information.
-
(2)
-
Interest
and other expense, net includes change in fair value of common stock warrant liability, change in fair value of contingent consideration, and gain (loss) on
extinguishment of debt.
S-10
Table of Contents
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before investing in our common stock, you should carefully
consider the risks described below, together with all of the other information contained in this prospectus supplement, and accompanying prospectus and incorporated by reference herein and therein,
including from our most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q as well as any amendment or update to our risk factors reflected in
subsequent filings with the SEC. Some of these factors relate principally to our business and the industry in which we operate. Other factors relate principally to your investment in our securities.
The risks and uncertainties described below are not the only risks facing us. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also materially and
adversely affect our business and operations. If any of the matters included in the following risks were to occur, our business, financial condition, results of operations, cash flows or prospects
could be materially and adversely affected. In such case, you may lose all or part of your investment.
Risks Related to this Offering and Our Common Stock
We have incurred losses and anticipate continuing to incur losses.
We have not achieved operating profitability in any quarter since our formation and we will continue to incur net losses until we can produce
sufficient revenue to cover our costs. Our net loss attributable to common stockholders was approximately $85.5 million and $67.2 million for the nine months ended September 30,
2020 and 2019, respectively. As of September 30, 2020, we had an accumulated deficit of $1.4 billion. We anticipate that we will continue to incur losses until we can produce and sell
our products on a large-scale and cost-effective basis. We cannot guarantee when we will operate profitably, if ever. In order to achieve profitability, we must successfully execute our planned path
to profitability in the early adoption markets on which we are focused. The profitability of our products depends largely on material and manufacturing costs and the market price of hydrogen. The
hydrogen infrastructure that is needed to support our growth readiness and cost efficiency must be available and cost efficient. We must continue to shorten the cycles in our product roadmap with
respect to improvement in product reliability and performance that our customers expect. We must execute on successful introduction of our products into the market. We must accurately evaluate our
markets for, and react to, competitive threats in both other technologies (such as advanced batteries) and our technology field. Finally, we must continue to lower our products' build costs and
lifetime service costs. If we are unable to successfully take these steps, we may never operate profitably, and, even if we do achieve profitability, we may be unable to sustain or increase our
profitability in the future.
Our stock price and stock trading volume have been and could remain volatile, and the value of your
investment could decline.
The market price of our common stock has historically experienced and may continue to experience significant volatility. From January 1,
2020 through January 25, 2021, our stock price fluctuated from a closing high of $69.50 per share to a closing low price of $2.76 per share. Our progress in developing and commercializing our
products, our quarterly operating results, announcements of new products by us or our competitors, our perceived prospects, changes in securities analysts' recommendations or earnings estimates,
changes in general conditions in the economy or the financial markets, adverse events related to our strategic relationships, significant sales of our common stock by existing stockholders, including
one or more of our strategic partners, and other developments affecting us or our competitors could cause the market price of our common stock to fluctuate substantially. For example, on
January 20, 2021, a short seller of our stock, Kerrisdale Management, issued a report stating that our stock is overvalued and dismissing the hydrogen economy as a "fantasy". Our share price
declined 6% the following day. In addition, in recent years, the stock market has experienced significant price and volume fluctuations, including as a result of the COVID-19 pandemic. Continuation
and/or increased severity of the COVID-19 pandemic could cause additional volatility in, or have a negative impact on, our stock price. This volatility
S-11
Table of Contents
has
affected the market prices of securities issued by many companies for reasons unrelated to their operating performance and may adversely affect the price of our common stock. Such market price
volatility could adversely affect our ability to raise additional capital. In addition, we may be subject to securities class action litigation as a result of volatility in the price of our common
stock, which could result in substantial costs and diversion of management's attention and resources and could harm our stock price, business, prospects, results of operations and financial condition.
There can be no assurance that our stock price will not be adversely affected by volatility and dislocation in the stock market or by future reports, claims or statements made by Kerrisdale Management
or any others.
We are in the process of resolving SEC comments relating to our Annual Report on Form 10-K for the
fiscal year ended December 31, 2019 regarding certain accounting and financial disclosure matters, which could possibly result in changes to our existing accounting and financial disclosure.
We recently received a comment letter from the staff of the SEC's Division of Corporation Finance (the "Staff") relating to our Annual Report on
Form 10-K for the fiscal year ended December 31, 2019. The Annual
Report on Form 10-K for the fiscal year ended December 31, 2019 is incorporated by reference into this prospectus supplement. In the comment letter, the Staff questioned,
among other things, (i) our accounting treatment for the warrants issued under the Amazon and Walmart Transaction Agreements (each, as defined in our Annual Report for the fiscal year ended
December 31, 2019), and in particular, our adoption of Accounting Standard Update 2019-08 ("ASU 2019-08") and Accounting Standard Update 2018-07 ("ASU 2018-07") and our application of the
transition guidance related to these standards, (ii) our amortization policy for our 5.50% convertible senior notes due 2023 and our 3.75% convertible senior notes due 2025, (iii) our
use of the simplified method in determining the expected term of stock option grants and (iv) our disclosure with respect to sale/leaseback arrangements. We have responded to the comment letter
stating that, (i) our application of the transition guidance related to ASU 2019-08 and ASU 2018-07 and the timing of when we recognize the charge for warrants against revenue complies
with ASU 2019-08 and ASU 2018-07, (ii) our amortization policy complies with the guidance to amortize the debt discount and transaction costs over the expected life of similar liabilities that
do not have an associated equity component, (iii) per Staff Accounting Bulletins Topic 14D, we concluded that it was appropriate to use the simplified method in determining the expected term of
stock option grants because our historical stock option exercise data is limited, and alternative information, such as exercise data relating to employees of other companies, is not easily obtainable
and (iv) our disclosure with respect to sale/leaseback arrangements is appropriate per FASB Accounting Standards Codification paragraph 470-10-25-2(b). However, until these comments are
resolved, or until any additional comments raised by the Staff during this process are resolved, we cannot provide assurance that we will not be required to amend the Form 10-K or make any
material changes to the accounting or financial disclosures contained in the Form 10-K or similar disclosures made in our future filings.
Future sales of a significant number of shares of our common stock or other dilution of our equity could
depress the market price of our common stock.
Sales of a substantial number of shares of our common stock in the public market could occur at any time. These sales, or the market perception
that the holders of a large number of shares intend to sell shares, could reduce the market price of our common stock. Additionally, we are not restricted from issuing additional shares of our common
stock, including any securities that are convertible into or exchangeable for, or that represent the right to receive, our common stock. The market price of our common stock could decline as a result
of sales of shares of our common stock or sales of such other securities made after this offering or the perception that such sales could occur.
S-12
Table of Contents
Our stockholders will experience immediate and substantial dilution in the net tangible book value per share
of the common stock you purchase in this offering and may experience further dilution in the future.
The public offering price of the common stock offered pursuant to this prospectus supplement is substantially higher than the net tangible book
value per share of our common stock. Therefore, you will incur immediate and substantial dilution of $ per share of common stock purchased in this offering. See "Dilution" below
for a
more detailed discussion of the dilution investors in this offering will incur if they purchase shares in this offering. In addition, we have a significant number of outstanding convertible notes,
warrants and stock options. As of January 22, 2021, we had 42,186,802 shares of common stock issuable upon conversion of the 3.75% Convertible Senior Notes due June 2025 at a conversion rate of
198.6196 shares. In addition, as of January 22, 2021, we had outstanding options exercisable for an aggregate of 9,141,908 shares of common stock at a weighted average exercise price of $6.18
per share, 5,869,642 shares of common stock issuable upon the vesting of restricted stock units and 104,753,740 shares of common stock issuable upon the exercise of warrants. Moreover, upon the
completion of the SK Investment, we expect to issue 51,428,119 shares of our common stock, plus any additional shares issuable upon the exercise of the SK Top-Up Right, at a purchase price of $29.2893
per share. Subject to market conditions and other factors, we may conduct additional future offerings of equity or debt securities. The conversion of the notes or the exercise of outstanding options
and warrants and future equity issuances will result in dilution to investors. The market price of our common stock could fall as a result of resales of any of these shares of common stock due to an
increased number of shares available for sale in the market.
Our management will have broad discretion in the use of the net proceeds we receive in this offering and
might not apply the proceeds in ways that increase the value of your investment.
Our management will have broad discretion over the use of our net proceeds from this offering, and you will be relying on the judgment of our
management regarding the application of these proceeds. Our management might not apply our net proceeds in ways that ultimately increase the value of your investment and we might not be able to yield
a significant return, if any, on any investment of these net proceeds. Our failure to apply these funds effectively could have a material adverse effect on our business, delay the development of our
products and cause the price of our common stock to decline.
S-13
Table of Contents
USE OF PROCEEDS
Based on the public offering price of $ per share of common stock, we estimate that the net proceeds to us from the
sale of the
shares of common stock in this offering will be approximately $ million (or approximately $ if the
option to purchase additional shares is exercised in full by the
underwriter), after deducting the underwriting discounts and estimated offering expenses payable by us.
We
intend to use the net proceeds from this offering for working capital and other general corporate purposes, which may include capital expenditures, potential acquisitions, growth
opportunities and strategic transactions. Until we use the net proceeds of this offering, we intend to invest the funds in short-term, investment grade, interest-bearing securities. Accordingly, we
will retain broad discretion over the use of these proceeds.
S-14
Table of Contents
CAPITALIZATION
The following table sets forth our cash and cash equivalents and capitalization as of September 30,
2020:
-
-
on an actual basis; and
-
-
on an as-adjusted basis to give effect to this offering
of shares of common stock at a price of
$ per share and
after deducting the underwriting discounts and estimated offering expenses payable by us.
You
should read this table in conjunction with "Use of Proceeds" as well as our consolidated financial statements and the related notes thereto included elsewhere or incorporated by
reference in this prospectus supplement and the accompanying prospectus.
|
|
|
|
|
|
|
|
|
|
As of September 30, 2020
|
|
(dollars in thousands, except per share amounts)
|
|
Actual
|
|
As Adjusted
|
|
|
|
(unaudited)
|
|
Cash and cash equivalents
|
|
$
|
448,140
|
|
$
|
|
|
Restricted cash(1)
|
|
$
|
283,232
|
|
$
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
Term loan facility(2)
|
|
$
|
183,267
|
|
$
|
|
|
3.75% Convertible Senior Notes due June 2025
|
|
|
80,937
|
|
|
|
|
5.50% Convertible Senior Note due March 2023
|
|
|
24,151
|
|
|
|
|
Other long-term debt
|
|
|
11,942
|
|
|
|
|
Total long-term debt
|
|
$
|
300,297
|
|
|
|
|
Stockholders' equity:
|
|
|
|
|
|
|
|
Common Stock, $0.01 par value per share; 750,000,000 shares authorized; 406,123,816 shares issued and outstanding,
actual; shares issued and outstanding, as adjusted
|
|
|
4,061
|
|
|
|
(4)
|
Additional paid-in capital
|
|
|
2,083,199
|
|
|
|
|
Accumulated other comprehensive income
|
|
|
1,958
|
|
|
|
|
Accumulated deficit
|
|
|
(1,431,340
|
)
|
|
|
|
Less common stock in treasury (1,528,162 shares)
|
|
|
(40,434
|
)
|
|
|
|
Total stockholders' equity
|
|
|
617,444
|
|
|
|
|
Total capitalization(3)
|
|
|
917,741
|
|
|
|
|
-
(1)
-
Reflects
primarily cash required to be maintained in restricted accounts securing the Company's finance obligations.
-
(2)
-
As
of January 25, 2021, we had a total outstanding balance under our secured term loan facility of approximately $160.1 million.
-
(3)
-
Total
capitalization is equal to the sum of total debt and total stockholders' equity.
-
(4)
-
Assumes
no exercise of the underwriter's option to purchase up to an additional shares of our common stock.
The
foregoing table and discussion are based on 404,595,654 shares of common stock outstanding as of September 30, 2020 and excludes:
-
-
14,434,983 shares of common stock issuable upon the exercise of stock options, at a weighted average exercise price of $4.66 per share;
-
-
5,992,974 shares of common stock issuable upon the vesting of restricted stock units;
-
-
110,573,392 shares of common stock issuable upon the exercise of warrants;
S-15
Table of Contents
-
-
14,685,428 shares of common stock issuance upon conversion of the 5.50% Convertible Senior Notes due March 2023 at a conversion rate of
436.3002 shares;
-
-
42,186,802 shares of common stock issuable upon conversion of the 3.75% Convertible Senior Notes due June 2025 at a conversion rate of 198.6196
shares;
-
-
1,528,162 shares of common stock in treasury; and
-
-
104,164 shares of our common stock reserved for future issuance under our equity incentive plans.
S-16
Table of Contents
DILUTION
If you invest in our common stock, your ownership interest will be diluted by the difference between the price per share you pay and the net
tangible book value per share of our common stock immediately after this offering.
Our
net tangible book value as of September 30, 2020 was approximately $506.3 million, or $1.25 per share of our common stock, based on 404,595,654 shares of our common
stock outstanding as of that date. Net tangible book value per share is determined by dividing our total tangible assets, less total liabilities, by the number of shares of our common stock
outstanding as of September 30, 2020. Dilution in net tangible book value per share represents the difference between the amount per share paid by purchasers of shares of common stock in this
offering and the net tangible book value per share of our common stock immediately after this offering. Dilution per share to new investors represents the difference between the amount per share paid
by purchasers for our common stock in this offering and the net tangible book value per share of our common stock immediately following the completion of this offering.
After
giving effect to the sale of shares of our common stock in this offering at the price of
$ per share and after deducting the underwriting discounts
and estimated offering expenses payable by us, our as adjusted net tangible book value as of September 30, 2020 would have been approximately $ million, or
$ per share. This represents an immediate increase in net tangible book value of $ per share to our existing
stockholders and an immediate dilution of $
per share of common stock issued to the new investors purchasing securities in this offering.
The
following table illustrates this per share dilution:
|
|
|
|
|
Offering price per share
|
|
$
|
|
|
Net tangible book value per share as of September 30, 2020
|
|
$
|
1.25
|
|
Increase in net tangible book value per share attributable to this offering
|
|
|
|
|
Adjusted net tangible book value per share as of September 30, 2020 after giving effect to this offering
|
|
|
|
|
Dilution in net tangible book value per share to new investors
|
|
|
|
|
If
the underwriter exercises in full its option to purchase up to additional shares of common stock at the
public offering price of $ per share, the as
adjusted net tangible book value after this offering would be $ per share, representing an increase in net tangible book value of
$ per share to existing stockholders and
immediate dilution in net tangible book value of $ per share to investors purchasing our common stock in this offering.
The
foregoing table and discussion are based on 404,595,654 shares of common stock outstanding as of September 30, 2020 and excludes:
-
-
14,434,983 shares of common stock issuable upon the exercise of stock options, at a weighted average exercise price of $4.66 per share;
-
-
5,992,974 shares of common stock issuable upon the vesting of restricted stock units;
-
-
110,573,392 shares of common stock issuable upon the exercise of warrants;
-
-
14,685,428 shares of common stock issuance upon conversion of the 5.50% Convertible Senior Notes due March 2023 at a conversion rate of
436.3002 shares;
-
-
42,186,802 shares of common stock issuable upon conversion of the 3.75% Convertible Senior Notes due June 2025 at a conversion rate of 198.6196
shares;
-
-
1,528,162 shares of common stock in treasury; and
-
-
104,164 shares of our common stock reserved for future issuance under our equity incentive plans.
S-17
Table of Contents
To
the extent that options or warrants outstanding are exercised, outstanding securities are converted or restricted stock units vest, you may experience further dilution. In addition,
we may choose to raise additional capital due to market conditions or strategic considerations even if we believe we have sufficient funds for our current or future operating plans. To the extent that
additional capital is raised through the sale of equity or convertible debt securities, the issuance of these securities could result in further dilution to our stockholders.
S-18
Table of Contents
DIVIDEND POLICY
We have never declared or paid cash dividends on our common stock and do not anticipate paying cash dividends in the foreseeable future. Any
future determination as to the payment of dividends will depend upon capital requirements and limitations imposed by our credit agreements, if any, and such other factors as our board of directors may
consider.
S-19
Table of Contents
UNDERWRITERS
Under the terms and subject to the conditions in an underwriting agreement dated the date of this prospectus supplement, the underwriter named
below, for whom Morgan Stanley & Co. LLC is acting as representative, has severally agreed to purchase, and we have agreed to sell to them, the amount of shares indicated below:
|
|
|
|
|
Name
|
|
Amount
of Shares
|
|
Morgan Stanley & Co. LLC
|
|
|
|
|
Total
|
|
$
|
1,500,000,000
|
|
The
underwriter and the representative are collectively referred to as the "underwriter" and the "representative," respectively. The underwriter is offering the shares of common stock
subject to their acceptance of the shares from us and subject to prior sale. The underwriting agreement provides that the obligations of the underwriter to pay for and accept delivery of the shares of
common stock offered by this prospectus supplement are subject to the approval of certain legal matters by their counsel and to certain other conditions. The underwriter is obligated to take and pay
for all of the shares of common stock offered by this prospectus supplement if any such shares are taken. However, the underwriter is not required to take or pay for the shares covered by the
underwriter's option to purchase additional shares described below.
The
underwriter initially proposes to offer part of the shares of common stock directly to the public at the offering price listed on the cover page of this prospectus supplement and
part to certain dealers. After the initial offering of the shares of common stock, the offering price and other selling terms may from time to time be varied by the representative.
Our
common stock is listed on the Nasdaq Capital Market under the trading symbol "PLUG".
We
and the underwriter have agreed to indemnify each other against certain liabilities, including liabilities under the Securities Act.
Option to Purchase Additional Shares
We have granted to the underwriter an option, exercisable for 30 days from the date of this prospectus supplement, to purchase up to
$225,000,000 of additional shares of common stock at the public offering price listed on the cover page of this prospectus supplement, less the underwriting discounts. To the extent the option is
exercised, the underwriter will become obligated, subject to certain conditions, to purchase the same percentage of the additional shares of common stock as the number listed next to the underwriter's
name in the preceding table bears to the total number of shares of common stock listed in the preceding table.
Underwriting Discounts
The following table shows the per share and total public offering price, underwriting discounts and proceeds, before expenses, to us. These
amounts are shown assuming both no exercise and full exercise of the underwriter's option to purchase up to an additional $225,000,000 of shares of common stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
|
Per Share
|
|
No Exercise
|
|
Full Exercise
|
|
Public offering price
|
|
$
|
|
|
$
|
|
|
$
|
|
|
Underwriting discounts
|
|
$
|
|
|
$
|
|
|
$
|
|
|
Proceeds, before expenses, to us
|
|
$
|
|
|
$
|
|
|
$
|
|
|
S-20
Table of Contents
The
estimated offering expenses payable by us, exclusive of the underwriting discounts, are approximately $ .
Lock-Up Agreements
We and each of our directors and officers have agreed that, without the prior written consent of Morgan Stanley & Co. LLC,
we and they will not, and will not publicly disclose an intention to, during the period ending 60 days after the date of this prospectus supplement (the "restricted period"):
-
(1)
-
offer,
pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend or otherwise transfer or dispose of, directly or indirectly, any shares of common stock or any securities convertible into or exercisable or exchangeable for shares of common stock;
-
(2)
-
enter
into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the common stock; or
-
(3)
-
file
any registration statement with the SEC relating to the offering of any shares of common stock or any securities convertible into or exercisable or exchangeable
for common stock;
whether
any such transaction described in (1) or (2) above is to be settled by delivery of common stock or such other securities, in cash or otherwise. In addition, we and each of our
directors and officers agrees that, without the prior written consent of Morgan Stanley & Co. LLC, we or such other person will not, during the restricted period, make any demand
for, or exercise any right with respect to, the registration of any shares of common stock or any security convertible into or exercisable or exchangeable for common stock.
Notwithstanding
the above, the underwriter has agreed in the underwriting agreement that the lock-up agreement applicable to us does not apply
to:
-
-
the sale of shares to the underwriter;
-
-
the issuance by us of shares of our common stock upon the exercise or vesting or settlement of any option, warrant, restricted stock unit or
restricted shares of common stock outstanding on the date hereof and described in this prospectus supplement, or upon the conversion of our 3.75% Convertible Senior Notes due June 2025 outstanding on
the date hereof and described in this prospectus supplement;
-
-
the issuance of shares of our common stock, options to acquire shares of our common stock, restricted stock units, restricted shares of common
stock or other equity awards pursuant to our stock option plans or other employee compensation plans as such plans are in existence on the date hereof and described in this prospectus supplement;
-
-
the issuance of shares of our common stock as matching contributions under our 401(k) plan;
-
-
the filing of a registration statement on Form S-8 relating to any employee benefit plan or Form S-4 or amendments thereto;
-
-
the issuance of shares of common stock to a subsidiary of SK Holdings pursuant to the Stock Purchase Agreement or the filing of any resale
registration statement or prospectus supplement by us registering the resale of such shares;
-
-
the entry into an agreement providing for the issuance of shares of our common stock or any security convertible into or exercisable for shares
of our common stock in connection with (x) our acquisition, or any of our subsidiaries, of the securities, business, technology, property or other assets of another person or entity or pursuant
to an employee benefit plan assumed by us in connection with such acquisition, or (y) joint ventures, commercial relationships or other strategic
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transactions,
and the issuance of any such securities pursuant to any such agreement, provided that the aggregate number of shares of our common stock that we may sell or issue pursuant to this clause
shall not exceed 10% of the total number of shares of our common stock issued and outstanding immediately following the completion of the transaction and provided further that each recipient of
shares of our common stock or any securities convertible into or exercisable or exchangeable for shares of our common stock shall enter into a lock-up agreement for the duration of the restricted
period;
-
-
the filing of any registration statement pursuant to the Transaction Agreement, dated as of July 20, 2017, by and between the Company
and Wal-Mart Stores, Inc.;
-
-
the filing of any registration statement pursuant to the Transaction Agreement, dated as of April 4, 2017, by and between the Company
and Amazon.com, Inc.;
-
-
the amendment, modification, termination or unwind of any base call option transaction or additional call option transaction, entered into
between the Company and each of Morgan Stanley & Co. LLC and Wells Fargo Bank, National Association; and
-
-
the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act (a "10b5-1 Plan"), for the transfer of shares of our
common stock, provided that (i) such 10b5-1 Plan does not provide for the transfer of shares of our common stock during the restricted period and (ii) to the extent a public announcement
or filing under the Exchange Act, if any, is required of or voluntarily made by us regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no
transfer of shares of our common stock may be made under such plan during the restricted period;
In
addition, notwithstanding the foregoing, the underwriter has agreed that the following shall not apply to the lock-up agreements with our directors and
officers:
-
-
transactions by any person other than us relating to shares of common stock or other securities acquired in open market transactions after the
completion of this offering, provided that no filing under Section 16(a) of the Exchange Act is required or voluntarily made in connection with subsequent sales of the common stock or other
securities acquired in such open market transactions;
-
-
transfers of shares of common stock or any security convertible into common stock as a bona fide gift, provided that each donee shall sign and
deliver a substantially similar lock-up agreement for the duration of the restricted period and no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership
of shares of common stock, shall be required or shall be voluntarily made during the restricted period;
-
-
distributions of shares of common stock or any security convertible into common stock to limited partners of such person, provided that each
distributee shall sign and deliver a substantially similar lock-up agreement for the duration of the restricted period and no filing under Section 16(a) of the Exchange Act, reporting a
reduction in beneficial ownership of shares of common stock, shall be required or shall be voluntarily made during the restricted period;
-
-
transfers or other dispositions of shares of common stock or any security convertible into common stock by will, other testamentary document or
intestate succession upon death, or by operation of law, such as pursuant to a qualified domestic order or in connection with a divorce settlement; provided that any filing under Section 16(a)
of the Exchange Act required to be made during the restricted period in connection with any such transfer or disposition shall indicate by footnote disclosure or otherwise the nature of the transfer
or disposition; provided further that each distributee shall sign and deliver a substantially similar lock-up agreement for the duration of the restricted period;
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-
-
receipt from the Company of shares of common stock upon the grant or exercise of options, warrants, common stock (restricted or unrestricted)
restricted stock units, restricted shares of common stock or other equity awards pursuant to any employee benefit plans or arrangements described in this prospectus supplement, provided that any
shares of common stock receive pursuant to this clause shall be subject to the restrictions on transferability contained in the lock-up agreement; provided further that any filing under
Section 16(a) of the Exchange Act required to be made during the restricted period in connection with such transaction shall indicate by footnote disclosure or otherwise (i) the nature
of the transaction and (ii) that any shares received pursuant to this clause are subject to the restrictions on transferability contained in the lock-up agreement;
-
-
dispositions or transfers of shares of common stock solely (i) in connection with the "net" or "cashless" exercise of options or other
rights to acquire shares of common stock granted pursuant to an equity incentive plan, employee compensation plan or other arrangement described in this prospectus supplement, or (ii) in
satisfaction of tax withholding obligations in connection with any such exercise or the vesting of restricted stock, provided that any shares received upon any such exercise or vesting shall be
subject to the restrictions on transferability contained in the lock-up agreement; provided further that any filing under Section 16(a) of the Exchange Act required to be made during the
Restricted Period in connection with any such transfer or disposition shall indicate by footnote disclosure or otherwise (i) the nature of the transfer or disposition and (ii) that any
shares received pursuant to this clause are subject to the restrictions on transferability contained in the lock-up agreement;
-
-
transfers of shares of common stock or any security convertible into common stock by such person to affiliates or to any investment fund or
other entity controlled by such person, provided that each transferee shall sign and deliver a substantially similar lock-up agreement for the duration of the restricted period and no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of shares of common stock, shall be required or shall be voluntarily made during the restricted period;
-
-
transfer of shares of common stock or any security convertible into common stock by such person to any immediate family member of such person
or a trust, partnership, limited liability company or other entity for the direct or indirect benefit of such person or the immediate family of such person, provided that each transferee shall sign
and deliver a substantially similar lock-up agreement for the duration of the restricted period and no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial
ownership of shares of common stock, shall be required or shall be voluntarily made during the restricted period;
-
-
the establishment of a 10b5-1 Plan for the transfer of shares of common stock; provided that (i) such 10b5-1 Plan does not provide for
the transfer of common stock during the restricted period and (ii) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on
behalf of the such officer or director or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of common stock may
be made under such plan during the restricted period; or
-
-
sales, transfers or other dispositions of such person's shares of common stock made pursuant to 10b5-1 Plans existing on the date hereof, of
which the representative has received notice, provided that any filing that is made in connection with any such sales during the restricted period shall state that such sales have been executed under
an existing 10b5-1 Plan.
Morgan
Stanley & Co. LLC, in its sole discretion, may release the common stock and other securities subject to the lock-up agreements described above in whole or in
part at any time.
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Stabilization
In order to facilitate the offering of our common stock, the underwriter may engage in transactions that stabilize, maintain or otherwise affect
the price of our common stock. Specifically, the underwriter may sell more shares than they are obligated to purchase under the underwriting agreement, creating a short position. A short sale is
covered if the short position is no greater than the number of shares available for purchase by the underwriter under the option. The underwriter can close out a covered short sale by exercising the
option or purchasing shares in the open market. In determining the source of shares to close out a covered short sale, the underwriter will consider, among other things, the open market price of
shares compared to the price available under the option. The underwriter may also sell shares in excess of the option, creating a naked short position. The underwriter must close out any naked short
position by purchasing shares in the open market. A naked short position is more likely to be created if the underwriter is concerned that there may be downward pressure on the price of the common
stock in the open market after pricing that could adversely affect investors who purchase in this offering. As an additional means of facilitating this offering, the underwriter may bid for, and
purchase, shares of common stock in the open market to stabilize the price of our common stock. These activities may raise or maintain the market price of our common stock above independent market
levels or prevent or retard a decline in the market price of
our common stock. The underwriter is not required to engage in these activities and may end any of these activities at any time.
Electronic Prospectus
A prospectus supplement in electronic format may be made available on websites maintained by the underwriter, or selling group members, if any,
participating in this offering. The representative may agree to allocate a number of shares of common stock to the underwriter for sale to their online brokerage account holders. Internet
distributions will be allocated by the representative to the underwriter that may make Internet distributions on the same basis as other allocations.
Other Relationships
The underwriter and its respective affiliates are full service financial institutions engaged in various activities, which may include
securities trading, commercial and investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. Certain of the
underwriter and its respective affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for us, for which they received
or will receive customary fees and expenses.
In
addition, in the ordinary course of their various business activities, the underwriter and its respective affiliates may make or hold a broad array of investments and actively trade
debt and equity securities (or related derivative securities) and financial instruments (including bank loans) for their own account and for the accounts of their customers and may at any time hold
long and short positions in such securities and instruments. Such investment and securities activities may involve our securities and instruments. The underwriter and its respective affiliates may
also make investment recommendations or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire,
long or short positions in such securities and instruments.
Selling Restrictions
The shares may be sold only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in
National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National
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Instrument 31-103
Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the shares must be made in accordance with an exemption from, or in a transaction not
subject to, the prospectus requirements of applicable securities laws.
Securities
legislation in certain provinces or territories of Canada may provide a purchaser with remedies for rescission or damages if this prospectus supplement (including any
amendment thereto) contains a misrepresentation, provided that the remedies for rescission or damages are exercised by the purchaser within the time limit prescribed by the securities legislation of
the purchaser's province or territory. The purchaser should refer to any applicable provisions of the securities legislation of the purchaser's province or territory for particulars of these rights or
consult with a legal advisor.
Pursuant
to section 3A.3 of National Instrument 33-105 Underwriting Conflicts (NI 33-105), the underwriter is not required to comply with the disclosure requirements
of NI 33-105 regarding underwriter conflicts of interest in connection with this offering.
In relation to each Member State of the European Economic Area (each, a "Relevant State"), no shares have been offered or will be offered
pursuant to the offering to the public in that Relevant State prior to the publication of a prospectus in relation to the shares which has been approved by the competent authority in that Relevant
State or, where appropriate, approved in another Relevant State and notified to the competent authority in that Relevant State, all in accordance with the Prospectus Regulation, except that offers of
shares may be made to the public in that Relevant State at any time under the following exemptions under the Prospectus Regulation:
-
(a)
-
to
any legal entity which is a qualified investor as defined under Article 2 of the Prospectus Regulation;
-
(b)
-
to
fewer than 150 natural or legal persons (other than qualified investors as defined under Article 2 of the Prospectus Regulation), subject to obtaining the
prior consent of the representatives for any such offer; or
-
(c)
-
in
any other circumstances falling within Article 1(4) of the Prospectus Regulation,
provided that no such offer of shares shall require us or any of our representatives to publish a prospectus pursuant to Article 3 of the
Prospectus Regulation or supplement a prospectus pursuant to Article 23 of the Prospectus Regulation.
For
the purposes of this provision, the expression an "offer to the public" in relation to any shares in any Relevant State means the communication in any form and by any means of
sufficient information on the terms of the offer and any shares to be offered so as to enable an investor to decide to purchase any shares, and the expression "Prospectus Regulation" means Regulation
(EU) 2017/1129 (as amended).
No shares have been offered or will be offered pursuant to the offering to the public in the United Kingdom prior to the publication of a
prospectus in relation to the shares which has been approved by the Financial Conduct Authority, except that it may make an offer to the public in the United Kingdom of any shares at any
time:
-
(a)
-
to
any legal entity which is a qualified investor as defined under Article 2 of the UK Prospectus Regulation;
-
(b)
-
to
fewer than 150 natural or legal persons (other than qualified investors as defined under Article 2 of the UK Prospectus Regulation), subject to obtaining
the prior consent of the representatives for any such offer; or
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-
(c)
-
in
any other circumstances falling within Section 86 of the FSMA,
provided that no such offer of the shares shall require us or any of our representatives to publish a prospectus pursuant to Section 85 of the
FSMA or supplement a prospectus pursuant to Article 23 of the UK Prospectus Regulation.
For
the purposes of this provision, the expression an "offer to the public" in relation to the shares in the United Kingdom means the communication in any form and by any means of
sufficient information on the terms of the offer and any shares to be offered so as to enable an investor to decide to purchase or subscribe for any shares and the expression "UK Prospectus
Regulation" means Regulation (EU) 2017/1129 as it forms part of domestic law by virtue of the European Union (Withdrawal) Act 2018 and the expression "FSMA" means the Financial Services and
Markets Act 2000.
The shares may not be publicly offered in Switzerland and will not be listed on the SIX Swiss Exchange (SIX) or on any other stock exchange or
regulated trading facility in Switzerland. This document does not constitute a prospectus within the meaning of, and has been prepared without regard to the disclosure standards for issuance
prospectuses under art. 652a or art. 1156 of the Swiss Code of Obligations or the disclosure standards for listing prospectuses under art. 27 ff. of the SIX Listing Rules or the listing rules of any
other stock exchange or regulated trading facility in Switzerland. Neither this document nor any other offering or marketing material relating to the shares or the offering may be publicly distributed
or otherwise made publicly available in Switzerland.
Neither
this document nor any other offering or marketing material relating to the offering, the Company, the shares have been or will be filed with or approved by any Swiss regulatory
authority. In particular, this document will not be filed with, and the offer of shares will not be supervised by, the Swiss Financial Market Supervisory Authority FINMA (FINMA), and the offer of
shares has not been and will not be authorized under the Swiss Federal Act on Collective Investment Schemes (CISA). The investor protection afforded to acquirers of interests in collective investment
schemes under the CISA does not extend to acquirers of shares.
This prospectus supplement:
-
-
does not constitute a disclosure document or a prospectus under Chapter 6D.2 of the Corporations Act 2001 (Cth) (the "Corporations
Act");
-
-
has not been, and will not be, lodged with the Australian Securities and Investments Commission ("ASIC"), as a disclosure document for the
purposes of the Corporations Act and does not purport to include the information required of a disclosure document for the purposes of the Corporations Act; and
-
-
may only be provided in Australia to select investors who are able to demonstrate that they fall within one or more of the categories of
investors, available under section 708 of the Corporations Act ("Exempt Investors").
The
shares may not be directly or indirectly offered for subscription or purchased or sold, and no invitations to subscribe for or buy the shares may be issued, and no draft or
definitive offering memorandum, advertisement or other offering material relating to any shares may be distributed in Australia, except where disclosure to investors is not required under
Chapter 6D of the Corporations Act or is otherwise in compliance with all applicable Australian laws and regulations. By submitting an application for the shares, you represent and warrant to
us that you are an Exempt Investor.
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As
any offer of shares under this document will be made without disclosure in Australia under Chapter 6D.2 of the Corporations Act, the offer of those securities for resale in
Australia within 12 months may, under section 707 of the Corporations Act, require disclosure to investors under Chapter 6D.2 if none of the exemptions in section 708
applies to that resale. By applying for the shares you undertake to us that you will not, for a period of 12 months from the date of issue of the shares, offer, transfer, assign or otherwise
alienate those shares to investors in Australia except in circumstances where disclosure to investors is not required under Chapter 6D.2 of the Corporations Act or where a compliant disclosure
document is prepared and lodged with ASIC.
The shares have not been offered or sold and will not be offered or sold in Hong Kong, by means of any document, other than (a) to
"professional investors" as defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (the "SFO") of Hong Kong and any rules made thereunder; or (b) in other
circumstances which do not result in the document being a "prospectus" as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) of Hong Kong) (the "CO") or
which do not constitute an offer to the public within the meaning of the CO. No advertisement, invitation or document relating to the shares has been or may be issued or has been or may be in
the possession of any person for the purposes of issue, whether in Hong Kong or elsewhere, which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong
(except if permitted to do so under the securities laws of Hong
Kong) other than with respect to shares which are or are intended to be disposed of only to persons outside Hong Kong or only to "professional investors" as defined in the SFO and any rules made
thereunder.
This prospectus supplement has not been registered as a prospectus with the Monetary Authority of Singapore. Accordingly, each underwriter has
not offered or sold any shares or caused the shares to be made the subject of an invitation for subscription or purchase and will not offer or sell any shares or cause the shares to be made the
subject of an invitation for subscription or purchase, and has not circulated or distributed, nor will it circulate or distribute, this prospectus supplement or any other document or material in
connection with the offer or sale, or invitation for subscription or purchase, of the shares, whether directly or indirectly, to any person in Singapore other than:
(a) to
an institutional investor (as defined in Section 4A of the Securities and Futures Act (Chapter 289) of Singapore, as modified or amended from time to
time (the "SFA")) pursuant to Section 274 of the SFA;
(b) to
a relevant person (as defined in Section 275(2) of the SFA) pursuant to Section 275(1) of the SFA, or any person pursuant to Section 275(1A) of
the SFA, and in accordance with the conditions specified in Section 275 of the SFA; or
(c) otherwise
pursuant to, and in accordance with the conditions of, any other applicable provision of the SFA.
Where
the shares are subscribed or purchased under Section 275 of the SFA by a relevant person which is:
(a) a
corporation (which is not an accredited investor (as defined in Section 4A of the SFA)) the sole business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of whom is an accredited investor; or
(b) a
trust (where the trustee is not an accredited investor) whose sole purpose is to hold investments and each beneficiary of the trust is an individual who is an
accredited investor, securities or securities-based derivatives contracts (each term as defined in Section 2(1) of the SFA) of that
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corporation
or the beneficiaries' rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has acquired the shares
pursuant to an offer made under Section 275 of the SFA except:
(i) to
an institutional investor or to a relevant person, or to any person arising from an offer referred to in Section 275(1A) or Section 276(4)(i)(B) of the
SFA;
(ii) where
no consideration is or will be given for the transfer;
(iii) where
the transfer is by operation of law;
(iv) as
specified in Section 276(7) of the SFA; or
(v) as
specified in Regulation 37A of the Securities and Futures (Offers of Investments) (Securities and Securities-based Derivatives Contracts)
Regulations 2018.
In
connection with Section 309B of the SFA and the CMP Regulations 2018, unless otherwise specified before an offer of shares of common stock, the Company has determined,
and hereby notifies all relevant persons (as defined in Section 309A(1) of the SFA), that the shares of common stock are "prescribed capital markets products" (as defined in the CMP
Regulations 2018) and Excluded Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on
Investment Products).
No registration pursuant to Article 4, paragraph 1 of the Financial Instruments and Exchange Law of Japan (Law No. 25 of
1948, as amended), or the FIEL, has been made or will be made with respect to the solicitation of the application for the acquisition of the shares of common stock. Accordingly, the shares of common
stock have not been, directly or indirectly, offered or sold and will not be, directly or indirectly, offered or sold in Japan or to, or for the benefit of, any resident of Japan (which term as used
herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan) or to others for re-offering or re-sale, directly or indirectly, in Japan or to,
or for the benefit of, any resident of Japan except pursuant to an exemption from the registration requirements, and otherwise in compliance with, the FIEL and the other applicable laws and
regulations of Japan.
For Qualified Institutional Investors, or QII
Please note that the solicitation for newly-issued or secondary securities (each as described in Paragraph 2, Article 4 of the
FIEL) in relation to the shares of common stock constitutes either a "QII only private placement" or a "QII only secondary distribution" (each as described in Paragraph 1, Article 23-13
of the FIEL). Disclosure regarding any such solicitation, as is otherwise prescribed in Paragraph 1, Article 4 of the FIEL, has not been made in relation to the shares of common stock.
The shares of common stock may only be transferred to QIIs.
Please note that the solicitation for newly-issued or secondary securities (each as described in Paragraph 2, Article 4 of the
FIEL) in relation to the shares of common stock constitutes either a "small number private placement" or a "small number private secondary distribution" (each as is described in Paragraph 4,
Article 23-13 of the FIEL). Disclosure regarding any such solicitation, as is otherwise prescribed in Paragraph 1, Article 4 of the FIEL, has not been made in relation to the
shares of common stock. The shares of common stock may only be transferred en bloc without subdivision to a single investor.
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The shares may not be offered, sold and delivered directly or indirectly, or offered or sold to any person for reoffering or resale, directly or
indirectly, in South Korea or to any resident of South Korea except pursuant to the applicable laws and regulations of South Korea, including the South Korea Securities and Exchange Act and the
Foreign Exchange Transaction Law and the decrees and regulations thereunder. The shares have not been registered with the Financial Services Commission of South Korea for public offering in South
Korea.
Furthermore,
the shares may not be resold to South Korean residents unless the purchaser of the shares complies with all applicable regulatory requirements (including but not limited to
government approval requirements under the Foreign Exchange Transaction Law and its subordinate decrees and regulations) in connection with the purchase of the shares.
Notice to Prospective Investors in the Dubai International Financial Centre, or DIFC
This prospectus relates to an Exempt Offer in accordance with the Markets Rules 2012 of the Dubai Financial Services Authority, or DFSA.
This prospectus is intended for distribution only to persons of a type specified in the Markets Rules 2012 of the DFSA. It must not be delivered to, or relied on by, any other person. The DFSA
has no responsibility for reviewing or verifying any documents in connection with Exempt Offers. The DFSA has not approved this prospectus nor taken steps to verify the information set forth herein
and has no responsibility for this document. The shares to which this prospectus relates may be illiquid and/or subject to restrictions on their resale. Prospective purchasers of the shares offered
should conduct their own due diligence on the shares. If you do not understand the contents of this prospectus you should consult an authorized financial advisor.
In
relation to its use in the DIFC, this prospectus is strictly private and confidential and is being distributed to a limited number of investors and must not be provided to any person
other than the
original recipient, and may not be reproduced or used for any other purpose. The interests in the shares may not be offered or sold directly or indirectly to the public in the DIFC.
The shares have not been, and will not be, registered with the Brazilian Securities Commission (Comissão
de Valores Mobiliários), or the CVM. The shares may not be offered or sold in Brazil, except in circumstances that do not constitute a public offering or
unauthorized distribution under Brazilian laws and regulations. The shares are not being offered into Brazil. Documents relating to the offering of the shares, as well as information contained
therein, may not be supplied to the public in Brazil, nor be used in connection with any public offer for subscription or sale of the shares to the public in Brazil.
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MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS
The following discussion is a summary of the material U.S. federal income tax considerations applicable to non-U.S. holders (as defined below)
with respect to their ownership and disposition of shares of our common stock issued pursuant to this offering. For purposes of this
discussion, a non-U.S. holder means a beneficial owner of our common stock that is for U.S. federal income tax purposes:
-
-
a non-resident alien individual;
-
-
a foreign corporation or any other foreign organization taxable as a corporation for U.S. federal income tax purposes;
-
-
a foreign estate, the income of which is not subject to U.S. federal income tax on a net income basis; or
-
-
a foreign trust, the income of which is not subject to U.S. federal income tax on a net income basis and that (1) is not subject to the
primary supervision of a court within the United States or over which no U.S. persons have authority to control all substantial decisions and (2) has not made an election to be treated as a
U.S. person under applicable U.S. Treasury Regulations.
This
discussion does not address the tax treatment of partnerships or other entities that are pass-through entities for U.S. federal income tax purposes or persons that hold their common
stock through partnerships or other pass-through entities. A partner in a partnership or other pass-through entity that will hold our common stock should consult his, her or its tax advisor regarding
the tax consequences of acquiring, holding and disposing of our common stock through a partnership or other pass-through entity, as applicable.
This
discussion is based on current provisions of the U.S. Internal Revenue Code of 1986, as amended, which we refer to as the Code, existing and proposed U.S. Treasury Regulations
promulgated thereunder, current administrative rulings and judicial decisions, all as in effect as of the date of this prospectus and, all of which are subject to change or to differing
interpretation, possibly with retroactive effect. Any such change or differing interpretation could alter the tax consequences to non-U.S. holders described in this prospectus. There can be no
assurance that the Internal Revenue Service, which we refer to as the IRS, will not challenge one or more of the tax consequences described herein. We assume in this discussion that a non-U.S. holder
holds shares of our common stock as a capital asset within the meaning of Section 1221 of the Code, generally property held for investment.
This
discussion does not address all aspects of U.S. federal income taxation that may be relevant to a particular non-U.S. holder in light of that non-U.S. holder's individual
circumstances nor does it address any U.S. state, local or non-U.S. taxes, the alternative minimum tax, the Medicare tax on net investment income, the rules regarding qualified small business stock
within the meaning of Section 1202 of the Code, or any other aspect of any U.S. federal tax other than the income tax. This discussion also does not consider any specific facts or circumstances
that may apply to a non-U.S. holder and does not address the special tax rules applicable to particular non-U.S. holders, such as:
-
-
insurance companies;
-
-
tax-exempt or governmental organizations;
-
-
financial institutions;
-
-
brokers or dealers in securities;
-
-
regulated investment companies;
-
-
pension plans;
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-
-
"controlled foreign corporations," "passive foreign investment companies," and corporations that accumulate earnings to avoid U.S. federal
income tax;
-
-
"qualified foreign pension funds," or entities wholly owned by a "qualified foreign pension fund";
-
-
persons deemed to sell our common stock under the constructive sale provisions of the Code;
-
-
persons that hold our common stock as part of a straddle, hedge, conversion transaction, synthetic security or other integrated investment; and
-
-
certain former residents and former citizens of the United States.
This
discussion is for general information only and is not tax advice. Accordingly, all prospective non-U.S. holders of our common stock should consult their tax advisors with respect to
the U.S. federal, state, local and non-U.S. tax consequences of the purchase, ownership and disposition of our common stock.
Distributions on Our Common Stock
Distributions, if any, on our common stock will constitute dividends for U.S. federal income tax purposes to the extent paid from our current or
accumulated earnings and profits, as determined under U.S. federal income tax principles. If a distribution exceeds our current and accumulated earnings and profits, the excess will be treated as a
tax-free return of the non-U.S. holder's investment, up to such holder's tax basis in the common stock. Any remaining excess will be treated as capital gain, subject to the tax treatment described
below in "Gain on Sale or Other Taxable Disposition of Our Common Stock." Any such distributions will also be subject to the discussions below under the sections titled "Backup Withholding and
Information Reporting" and "Withholding and Information Reporting RequirementsFATCA."
Subject
to the discussion in the following two paragraphs in this section, dividends paid to a non-U.S. holder generally will be subject to withholding of U.S. federal income tax at a
30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder's country of residence.
Dividends
that are treated as effectively connected with a trade or business conducted by a non-U.S. holder within the United States and, if an applicable income tax treaty so provides,
that are attributable to a permanent establishment or a fixed base maintained by the non-U.S. holder within the United States, are generally exempt from the 30% withholding tax if the non-U.S. holder
satisfies applicable certification and disclosure requirements. However, such U.S. effectively connected income, net of specified deductions and credits, is taxed at the same graduated U.S. federal
income tax rates applicable to United States persons (as defined in the Code). Any U.S. effectively connected income received by a non-U.S. holder that is a corporation may also, under certain
circumstances, be subject to an additional "branch profits tax" at a 30% rate or such lower rate as may be specified by an applicable income tax treaty between the United States and such holder's
country of residence.
A
non-U.S. holder of our common stock who claims the benefit of an applicable income tax treaty between the United States and such holder's country of residence generally will be
required to provide a properly executed IRS Form W-8BEN or W-8BEN-E (or successor form) to the applicable withholding agent and satisfy applicable certification and other requirements. Non-U.S.
holders are urged to consult their tax advisors regarding their entitlement to benefits under a relevant income tax treaty. A non-U.S. holder that is eligible for a reduced rate of U.S. withholding
tax under an income tax treaty may obtain a refund or credit of any excess amounts withheld by timely filing a U.S. tax return with the IRS.
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Gain on Sale or Other Taxable Disposition of Our Common Stock
Subject to the discussions below under "Backup Withholding and Information Reporting" and "Withholding and Information Reporting
RequirementsFATCA," a non-U.S. holder generally will not be subject to any U.S. federal income tax on any gain realized upon such holder's sale or other taxable disposition of shares of
our common stock unless:
-
-
the gain is effectively connected with the non-U.S. holder's conduct of a U.S. trade or business and, if an applicable income tax treaty so
provides, is attributable to a permanent establishment or a fixed-base maintained by such non-U.S. holder in the United States, in which case the non-U.S. holder generally will be taxed on a net
income basis at the graduated U.S. federal income tax rates applicable to United States persons (as defined in the Code) and, if the non-U.S. holder is a foreign corporation, the branch profits tax
described above in "Distributions on Our Common Stock" also may apply;
-
-
the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more in the taxable year of
the disposition and certain other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax (or such lower rate as may be specified by an applicable income tax treaty between
the United States and such holder's country of residence) on the net gain derived from the disposition, which may be offset by certain U.S. source capital losses of the non-U.S. holder, if any (even
though the individual is not considered a resident of the United States), provided that the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses; or
-
-
we are, or have been, at any time during the five-year period preceding such sale or other taxable disposition (or the non-U.S. holder's
holding period, if shorter) a "U.S. real property holding corporation," unless our common stock is regularly traded on an established securities market and the non-U.S. holder holds no more than 5% of
our outstanding common stock, directly or indirectly, actually or constructively, during the shorter of the 5-year period ending on the date of the disposition or the period that the non-U.S. holder
held our common stock. Generally, a corporation is a U.S. real property holding corporation only if the fair market value of its U.S. real property interests equals or exceeds 50% of the sum of the
fair market value of its worldwide real property interests plus its other assets used or held for use in a trade or business. Although there can be no assurance, we do not believe that we are, or have
been, a U.S. real property holding corporation, or that we are likely to become one in the future. No assurance can be provided that our common stock will be regularly traded on an established
securities market for purposes of the rules described above. If we are a "U.S. real property holding corporation" and either our common stock is not regularly traded on an established securities
market or a non-U.S. holder holds more than 5% of our common stock, directly or indirectly, actually or constructively, during the applicable testing period, such non-U.S. holder would generally be
taxed on any gain realized from the sale or other disposition of our common stock in the same manner as gain that is effectively connected with the conduct of a U.S. trade or business, except that the
branch profits tax generally will not apply.
Backup Withholding and Information Reporting
We must report annually to the IRS and to each non-U.S. holder the gross amount of the distributions on our common stock paid to such holder and
the tax withheld, if any, with respect to such distributions. Non-U.S. holders may have to comply with specific certification procedures to establish that the holder is not a United States person (as
defined in the Code) in order to avoid backup withholding at the applicable rate with respect to dividends on our common stock. Generally, a non-U.S. holder will comply with such procedures if it
provides a properly executed IRS Form W-8BEN or W-8BEN-E (or other applicable Form W-8) or otherwise meets documentary evidence requirements for establishing that it is a non-U.S.
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holder,
or otherwise establishes an exemption. Dividends paid to non-U.S. holders subject to withholding of U.S. federal income tax, as described above in "Distributions on Our Common Stock,"
generally will be exempt from U.S. backup withholding.
Information
reporting and backup withholding will generally apply to the proceeds of a disposition of our common stock by a non-U.S. holder effected by or through the U.S. office of any
broker, U.S. or
foreign, unless the holder certifies its status as a non-U.S. holder and satisfies certain other requirements, or otherwise establishes an exemption. Generally, information reporting and backup
withholding will not apply to a payment of disposition proceeds to a non-U.S. holder where the transaction is effected outside the United States through a non-U.S. office of a broker. However, for
information reporting purposes, dispositions effected through a non-U.S. office of a broker with substantial U.S. ownership or operations generally will be treated in a manner similar to dispositions
effected through a U.S. office of a broker.
Non-U.S.
holders should consult their tax advisors regarding the application of the information reporting and backup withholding rules to them. Copies of information returns may be made
available to the tax authorities of the country in which the non-U.S. holder resides or is incorporated under the provisions of a specific treaty or agreement. Backup withholding is not an additional
tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder can be refunded or credited against the non-U.S. holder's U.S. federal income tax liability, if any,
provided that an appropriate claim is filed with the IRS in a timely manner.
Withholding and Information Reporting RequirementsFATCA
Provisions of the Code commonly referred to as the Foreign Account Tax Compliance Act, or FATCA, generally impose a U.S. federal withholding tax
at a rate of 30% on payments of dividends on our common stock paid to a foreign entity unless (i) if the foreign entity is a "foreign financial institution," such foreign entity undertakes
certain due diligence, reporting, withholding, and certification obligations, (ii) if the foreign entity is not a "foreign financial institution," such foreign entity identifies certain of its
U.S. investors, if any, or (iii) the foreign entity is otherwise exempt under FATCA. Such withholding may also apply to gross proceeds from the sale or other disposition of our common stock,
although under recently proposed U.S. Treasury Regulations, no withholding would apply to such gross proceeds. The preamble to the proposed regulations specifies that taxpayers (including withholding
agents) are permitted to rely on the proposed regulations pending finalization. Under certain circumstances, a non-U.S. holder may be eligible for refunds or credits of this withholding tax. An
intergovernmental agreement between the United States and an applicable foreign country may modify the requirements described in this paragraph. Non-U.S. holders should consult their tax advisors
regarding the possible implications of this legislation on their investment in our common stock and the entities through which they hold our common stock, including, without limitation, the process
and deadlines for meeting the applicable requirements to prevent the imposition of the 30% withholding tax under FATCA.
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LEGAL MATTERS
The validity of the shares of common stock offered hereby will be passed upon for us by Goodwin Procter LLP, Boston, Massachusetts.
Certain legal matters with respect to this offering will be passed upon for the underwriter by Davis Polk & Wardwell LLP, New York, New York.
EXPERTS
The consolidated financial statements of Plug Power Inc. and subsidiaries as of December 31, 2019 and 2018, and for each of the
years in the three year period ended December 31, 2019, and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2019 have been
incorporated by reference herein and in the registration statement in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and
upon the authority of said firm as experts in accounting and auditing. The audit report covering the December 31, 2019 consolidated financial statements refers to a change in the Company's
method of accounting for leases due to the adoption of new accounting guidance.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and current reports and other information with the SEC. The SEC maintains a website at www.sec.gov that contains
periodic and current reports, proxy and information statements, and other information regarding registrants that are filed electronically with the SEC. These documents are also available, free of
charge, through our website, which is located at www.plugpower.com. Information contained on our website is not incorporated by reference into this prospectus supplement, the accompanying prospectus
or any free writing prospectus and you should not consider information on our website to be part of this prospectus supplement, the accompanying prospectus or any free writing prospectus.
This
prospectus supplement is part of a registration statement that we filed with the SEC. The registration statement contains more information than this prospectus supplement regarding
us and the securities, including exhibits and schedules. You can obtain a copy of the registration statement from the SEC from the SEC's website at www.sec.gov.
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INCORPORATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you
by referring you to those documents instead of having to repeat the information in this prospectus supplement. The information incorporated by reference is considered to be part of this prospectus
supplement, and later information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below that we have filed with the
SEC:
-
-
our Annual Report on
Form 10-K for the year ended December 31, 2019, filed with the SEC on March 10, 2020;
-
-
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2020, June 30, 2020 and September 30, 2020,
filed with the SEC on May 8, 2020,
August 10, 2020 and
November 9, 2020, respectively;
-
-
our Definitive Proxy Statement on
Schedule 14A filed with the SEC on April 29, 2020 (solely to the extent specifically incorporated by reference into the
Annual Report on Form 10-K for the year ended December 31,
2019);
-
-
our Current Reports on Form 8-K filed with the SEC on
April 8, 2020,
April 13, 2020,
May 7, 2020 (solely with respect to Items 1.01 and 2.03),
May 14, 2020,
May 19, 2020,
June 9, 2020,
June 23, 2020 (solely with respect to Items 1.01, 2.03
and 3.02), August 14, 2020,
November 18, 2020,
January 5, 2021 and
January 7, 2021 (solely with respect to Items 1.01 and
3.02);
-
-
the description of our
shares of common stock contained in Exhibit 4.5 filed with our Annual Report on Form 10-K for the year ended December 31, 2019, including any amendment or report filed for the
purpose of updating such description; and
-
-
all documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this
prospectus and prior to the termination of the offering of the underlying securities (excluding any portions of such documents that are deemed "furnished" to the SEC pursuant to applicable rules and
regulations).
Any
statement contained in this prospectus supplement and the accompanying prospectus, or any free writing prospectus provided in connection with this offering or in a document
incorporated or deemed to be incorporated by reference into this prospectus supplement and the accompanying prospectus, will be deemed to be modified or superseded for purposes of this prospectus
supplement and the accompanying prospectus to the extent that a statement contained in this prospectus supplement and
the accompanying prospectus, or any free writing prospectus provided in connection with this offering or any other subsequently filed document that is deemed to be incorporated by reference into this
prospectus supplement and the accompanying prospectus, modifies or supersedes the statement. Any statement so modified or superseded will not be deemed, except as so modified or superseded, to
constitute a part of this prospectus supplement and the accompanying prospectus.
We
will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, on written or oral request of such person, a copy of any or all of the
documents incorporated by reference in this prospectus supplement (not including exhibits to such documents, unless such exhibits are specifically incorporated by reference in this prospectus
supplement or into such documents). You should direct any requests for documents to:
Plug
Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
Attention: General Counsel
Telephone: (518) 782-7700
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PROSPECTUS
PLUG POWER INC.
Common Stock
Preferred Stock
Warrants
Debt Securities
Units
This prospectus describes securities that may be issued and sold from time to time by us or that may be offered and sold from time to time by
selling securityholders to be identified in the future. We may offer, in one or more series or classes, separately or together, the following securities: (i) shares of common stock, par value
$0.01 per share, (ii) shares of preferred stock, par value $0.01 per share, (iii) warrants to purchase shares of common stock, preferred stock and/or debt securities, (iv) debt
securities and (v) units comprised of one or more of the securities described in this prospectus in any combination. We refer to the common stock, preferred stock, warrants, debt securities and
units registered hereunder collectively as the "securities" in this prospectus.
The
specific terms of each series or class of the securities will be set forth in the applicable prospectus supplement. The securities may be offered directly by us, through agents
designated from time to time by us, or to or through underwriters or dealers. These securities also may be offered by securityholders, if so provided in a prospectus supplement hereto. We will provide
specific information about any selling securityholders in one or more supplements to this prospectus. If any agents, dealers or underwriters are involved in the sale of any of the securities, their
names, and any applicable purchase price, fee, commission or discount arrangement between or among them will be set forth, or will be calculable from the information set forth, in the applicable
prospectus supplement. See the sections entitled "About this Prospectus" and the "Plan of Distribution" for more information. No securities may be sold without delivery of this prospectus and the
applicable prospectus supplement describing the method and terms of the offering of such series of securities.
Our
common stock is listed on the NASDAQ Capital Market under the symbol "PLUG." On November 29, 2019, the last reported sale price of our common stock on the NASDAQ Capital
Market was $3.90. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on the NASDAQ Capital Market or any securities market or other
exchange of the securities covered by the applicable prospectus supplement.
Investing in our securities involves a high degree of risk. You should review carefully the risks and uncertainties
described under the heading "Risk Factors" contained in this prospectus beginning on page 3 and any applicable prospectus supplement as well as those set forth in the documents incorporated by
reference into this prospectus or any applicable prospectus supplement.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is December 2, 2019.
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or the SEC, using a "shelf"
registration process. Under this process, we may sell any combination of the securities described in this prospectus in one or more offerings, and selling securityholders may from time to time offer
and sell any such security owned by them.
This
prospectus provides you with a general description of the securities we or the selling securityholders may offer. Each time we or any selling securityholder sell securities, we will
provide a prospectus supplement containing specific information about the terms of the applicable offering. A prospectus supplement may include a discussion of any risk factors or other special
considerations applicable to those securities or to us. A prospectus supplement may add, update or change information contained in this prospectus. If there is any inconsistency between the
information in this
prospectus and the applicable prospectus supplement, you should rely on the information in the prospectus supplement. Before you buy any of our securities, it is important for you to consider the
information contained in this prospectus and any prospectus supplement together with additional information described under the heading "Where You Can Find More Information."
We
or any selling securityholders may offer the securities directly, through agents, or to or through underwriters. The applicable prospectus supplement will describe the terms of the
plan of distribution and set forth the names of any agents or underwriters involved in the sale of the securities. See "Plan of Distribution" for more information on this topic. No securities may be
sold without delivery of a prospectus supplement describing the method and terms of the offering of those securities.
We
have not authorized anyone to provide you with information in addition to or different from that contained in this prospectus, any applicable prospectus supplement and any related
free writing prospectus. No dealer, salesperson or other person is authorized to give any information or to represent anything not contained in this prospectus, any applicable prospectus supplement or
any related free writing prospectus that we may authorize to be provided to you. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should not assume that the information in this prospectus, any applicable prospectus
supplement, any information incorporated or deemed incorporated by reference herein or therein or any related free writing prospectus is accurate as of any date other than the date of such
information. Our business, financial condition, results of operations and prospects and the business may have changed since that date.
This
prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All
of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or will be incorporated by reference as
exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading "Where You Can Find Additional
Information."
Unless
otherwise mentioned or unless the context requires otherwise, all references in this prospectus to "Plug Power," "we," "us," "our," or the "Company" refer to Plug
Power Inc. and its subsidiaries.
This
prospectus and the information incorporated herein by reference includes trademarks, service marks and trade names owned by us or other companies. All trademarks, service marks and
trade names included or incorporated by reference into this prospectus, any applicable prospectus supplement or any related free writing prospectus are the property of their respective owners.
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OUR COMPANY
We are a leading provider of alternative energy technology focused on the design, development, commercialization and manufacture of hydrogen and
fuel cell systems used primarily for the material handling and stationary power markets. As part of the global drive to electrification, we have recently leveraged product proven in the material
handling vehicle space to enter new, adjacent, electric vehicle markets, specifically electric delivery vans.
We
are focused on proton exchange membrane, or PEM, fuel cell and fuel processing technologies, fuel cell/battery hybrid technologies, and associated hydrogen storage and dispensing
infrastructure from which multiple products are available. A fuel cell is an electrochemical device that combines hydrogen and oxygen to produce electricity and heat without combustion. Hydrogen is
derived from hydrocarbon fuels such as liquid petroleum gas, or LPG, natural gas, propane, methanol, ethanol, gasoline or biofuels. We develop complete hydrogen generation, delivery, storage
and refueling solutions for customer locations. Currently, we obtain the majority of our hydrogen by purchasing it from fuel suppliers for resale to customers.
In
our core business, we provide and continue to develop commercially-viable hydrogen and fuel cell product solutions to replace lead-acid batteries in electric material handling
vehicles and industrial trucks for some of the world's largest distribution and manufacturing businesses. We are focusing our efforts on industrial mobility applications (electric forklifts and
electric industrial vehicles) at multi-shift high volume manufacturing and high throughput distribution sites where our products and services provide a unique combination of productivity, flexibility
and environmental benefits. Additionally, we manufacture and sell fuel cell products to replace batteries and diesel generators in stationary backup power applications. These products prove valuable
with telecommunications, transportation and utility customers as robust, reliable and sustainable power solutions.
Our
current products and services include:
GenDrive:
GenDrive is our hydrogen fueled PEM fuel cell system providing power to material handling electric vehicles, including class 1, 2, 3 and 6 electric forklifts and ground support
equipment.
GenFuel:
GenFuel is our hydrogen fueling delivery, generation, storage and dispensing system.
GenCare:
GenCare is our ongoing 'internet of things'-based maintenance and on-site service program for GenDrive fuel cells, GenSure products, GenFuel products and ProGen engines.
GenSure:
GenSure is our stationary fuel cell solution providing scalable, modular PEM fuel cell power to support the backup and grid-support power requirements of the telecommunications,
transportation, and utility sectors.
GenKey:
GenKey is our turn-key solution combining either GenDrive or GenSure power with GenFuel fuel and GenCare aftermarket service, offering complete simplicity to customers transitioning to fuel
cell power.
ProGen:
ProGen is our fuel cell stack and engine technology currently used globally in mobility and stationary fuel cell systems, and as engines in electric delivery vans.
We
provide our products worldwide through our direct product sales force, and by leveraging relationships with original equipment manufacturers and their dealer networks. We manufacture
our commercially-viable products in Latham, NY.
We
were organized in the State of Delaware on June 27, 1997. Our principal executive offices are located at 968 Albany-Shaker Road, Latham, New York, 12110, and our
telephone number is (518) 782-7700. Our corporate website address is www.plugpower.com. The information found on, or otherwise accessible through, our website is not deemed to be a part
of this prospectus or any applicable prospectus supplement. Our common stock trades on the NASDAQ Capital Market under the symbol "PLUG."
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RISK FACTORS
Investment in any securities offered pursuant to this prospectus involves risks. Before acquiring any offered securities pursuant to this
prospectus, you should carefully consider the information contained or incorporated by reference in this prospectus or in any accompanying prospectus supplement, including, without limitation, the
risks and uncertainties set forth under the heading "Risk Factors" in our most recent Annual Report on Form 10-K, and the other information contained or incorporated by reference in this
prospectus, as updated by our subsequent filings under the Securities Exchange Act of 1934, as amended, or the Exchange Act, and the risk factors and other information contained in the applicable
prospectus supplement before acquiring any of such securities. The occurrence of any of these risks might cause you to lose all or a part of your investment in the offered securities. Please also
refer to the section below entitled "Cautionary Statement Regarding Forward-Looking Statements."
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains statements that are not historical facts and are considered forward-looking within the meaning of Section 27A of
the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Exchange Act. These forward-looking statements contain projections of our future results of operations or
of our financial position or state other forward-looking information. You can identify forward-looking statements by the use of forward-looking terminology such as "believes," "expects," "may,"
"will," "should," "seeks," "approximately," "intends," "plans," "estimates" or "anticipates" or the negative of these words and phrases or similar words or phrases which are predictions of or indicate
future events or trends and discussions which do not relate solely to historical matters. You can also identify forward-looking statements by discussions of strategy, plans or intentions.
These
forward-looking statements involve known and unknown risks, uncertainties and other important factors that could cause our actual results, performance or achievements, or industry
results to differ materially from any predictions of future results, performance or achievements that we express or imply in this prospectus or in the information contained in or incorporated by
reference into this prospectus. Some of the risks, uncertainties and other important factors that may affect future results include, among others: the risk that we continue to incur losses and might
never achieve or maintain profitability; the risk that we will need to raise additional capital to fund our operations and such capital may not be available to us; the risk of dilution to our
stockholders and/or stock price should we need to raise additional capital; the risk that our lack of extensive experience in manufacturing and marketing products may impact our ability to manufacture
and market products on a profitable and large-scale commercial basis; the risk that unit orders may not ship, be installed and/or converted to revenue, in whole or in part; the risk that a loss of one
or more of our major customers, or if one of our major customers delays payment of or is unable to pay its receivables, a material adverse effect
could result on our financial condition; the risk that a sale of a significant number of shares of stock could depress the market price of our common stock; the risk that our convertible debt
securities, if settled in cash, could have a material effect on our financial results; the risk that our convertible note hedges may affect the value of our convertible debt securities and our common
stock; the risk that negative publicity related to our business or stock could result in a negative impact on our stock value and profitability; the risk of potential losses related to any product
liability claims or contract disputes; the risk of loss related to an inability to maintain an effective system of internal controls; our ability to attract and maintain key personnel; the risks
related to the use of flammable fuels in our products; the risk that pending orders may not convert to purchase orders, in whole or in part; the cost and timing of developing, marketing and selling
our products; the risks of delays in or not completing our product development goals; our ability to obtain financing arrangements to support the sale or leasing of our products and services to
customers; our ability to achieve the forecasted gross margin on the sale of our products; the cost and availability of fuel and fueling infrastructures for our products; the risk of elimination of
government subsidies and economic incentives for alternative energy products; market
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acceptance
of our products and services, including GenDrive, GenSure and GenKey systems; our ability to establish and maintain relationships with third parties with respect to product development,
manufacturing, distribution and servicing and the supply of key product components; the cost and availability of components and parts for our products; the risk that possible new tariffs could have a
material adverse effect on our business; our ability to develop commercially viable products; our ability to reduce product and manufacturing costs; our ability to successfully market, distribute and
service our products and services internationally; our ability to improve system reliability for our products; competitive factors, such as price competition and competition from other traditional and
alternative energy companies; our ability to protect our intellectual property; the risk of dependency on information technology on our operations and the failure of such technology; the cost of
complying with current and future federal, state and international governmental regulations; our subjectivity to legal proceedings and legal compliance; the risks associated with potential future
acquisitions; the volatility of our stock price; and other risks and uncertainties described herein, as well as those risks and uncertainties discussed from time to time in our other reports and other
public filings with the SEC.
Although
we presently believe that the plans, expectations and anticipated results expressed in or suggested by the forward-looking statements contained in or incorporated by reference
into this prospectus are reasonable, all forward-looking statements are inherently subjective, uncertain and subject to change, as they involve substantial risks and uncertainties, including those
beyond our control. New factors emerge from time to time, and it is not possible for us to predict the nature, or assess the potential impact, of each new factor on our business. Given these
uncertainties, we caution you not to place undue reliance on these forward-looking statements. We undertake no obligation to update or revise any of our forward-looking statements for events or
circumstances that arise after the statement is made, except as otherwise may be required by law.
The
above list of risks and uncertainties is only a summary of some of the most important factors and is not intended to be exhaustive. Additional information regarding risk factors that
may affect us is included in our Annual Report on Form 10-K for the year ended December 31, 2018. The risk factors contained in our Annual Report are updated by us from time to time in
Quarterly Reports on Form 10-Q, Current Reports on Form 8-K and other filings we make with the SEC.
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USE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we will use the net proceeds received by us from our sale of the securities
described in this prospectus for our working capital and other general corporate purposes, including capital expenditures. We may temporarily invest the net proceeds in a variety of capital
preservation instruments, including investment grade, interest bearing instruments and U.S. government securities, until they are used for their stated purpose.
Unless
otherwise set forth in the applicable prospectus supplement, we will not receive any proceeds in the event that securities are sold by a selling securityholder.
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DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
The following description of our common stock and preferred stock, together with any additional information we include in any applicable
prospectus supplement or any related free writing prospectus, summarizes the material terms and provisions of our common stock and the preferred stock that we may offer under this prospectus. While
the terms we have summarized below will apply generally to any future common stock or preferred stock that we may offer, we will describe the particular terms of any class or series of these
securities in more detail in the applicable prospectus supplement or free writing prospectus. For the complete terms of our common stock and preferred stock, please refer to our amended and restated
certificate of incorporation (as amended), which we refer to herein as our certificate of incorporation, and our amended and restated bylaws, which we refer to herein as our bylaws, copies of which
are filed with the SEC. The terms of these securities may also be affected by the Delaware General Corporation Law, or the DGCL. The summary below and that contained in any applicable prospectus
supplement or any related free writing prospectus are
qualified in their entirety by reference to our certificate of incorporation and our bylaws. See "Where You Can Find Additional Information."
Authorized Capital
Our authorized capital stock consists of 750,000,000 shares of common stock, par value $0.01 per share, and 5,000,000 shares of preferred stock,
par value $0.01 per share.
Common Stock
As of September 30, 2019, 253,121,439 shares of our common stock were issued and outstanding (excluding 861,139 treasury shares). In
addition, as of September 30, 2019, there were: (i) 23,597,871 shares of common stock issuable upon the exercise of stock options at a weighted average exercise price of $2.44 per share;
(ii) 4,333,560 shares of common stock issuable upon the vesting of restricted stock units; (iii) 115,824,142 shares of common stock issuable upon exercise of warrants;
(iv) 2,782,076 shares of common stock issuable upon conversion of our Series C Redeemable Convertible Preferred Stock at a conversion price of $0.2343 per share; (v) 12,237,762
shares of common stock issuable upon conversion of our Series E Convertible Preferred Stock at a conversion price of $2.31 per share; (vi) 43,630,020 shares of common stock issuable upon
conversion of our 5.5% Convertible Senior Notes due March 15, 2023 at a conversion price of $2.29 per share ; (vii) 15,503,876 shares of common stock issuable upon conversion of our 7.5%
Convertible Senior Note due January 2023 at a conversion price of $2.58 per share; and (viii) 8,373,467 shares of our common stock reserved for future issuance under our equity incentive plans.
Additional shares of authorized common stock may be issued, as authorized by our board of directors from time to time, without stockholder approval, except as may be required by applicable securities
exchange requirements.
The
holders of common stock possess exclusive voting rights in us, except to the extent of such rights reserved to holders of our Series C Redeemable Convertible Preferred Stock
and Series E Convertible Preferred Stock and to the extent our board of directors specifies voting power with respect to any other class of securities issued in the future. Each holder of our
common stock is entitled to one vote for each share held of record on each matter submitted to a vote of stockholders, including the election of directors. Stockholders do not have any right to
cumulate votes in the election of directors.
Subject
to the preferences that may be applicable to any then outstanding preferred stock, each holder of our common stock is entitled to share ratably in distributions to stockholders
and to receive ratably such dividends, if any, as may be declared from time to time by our board of directors out of legally
available funds. In the event of our liquidation, dissolution or winding up, holders of our common stock will be entitled to share ratably in the net assets legally available for distribution to
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stockholders
after the payment of all of our debts and other liabilities, subject to the satisfaction of any liquidation preference granted to the holders of any outstanding shares of preferred stock
(including the Series C Redeemable Convertible Preferred Stock and Series E Convertible Preferred Stock).
All
of the outstanding shares of our common stock are, and the shares of common stock issued upon the conversion of any securities convertible into our common stock will be, duly
authorized, fully paid and nonassessable. Holders of our common stock have no preemptive, conversion or subscription rights, and there are no redemption or sinking fund provisions applicable to our
common stock. The rights, preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of the Series C Redeemable
Convertible Preferred Stock and Series E Convertible Preferred Stock as well as the rights of any series of our preferred stock that we may designate and issue in the future.
Our
common stock trades on the NASDAQ Capital Market under the symbol "PLUG."
Preferred Stock
As of September 30, 2019, 2,620 shares of Series C Redeemable Convertible Preferred Stock, par value $0.01 per share
("Series C Preferred Stock"), and 28,269 shares of Series E Convertible Preferred Stock, par value $0.01 per share ("Series E Preferred Stock"), were issued and outstanding. The
Company has authorized Series A Junior Participating Cumulative Preferred Stock, par value $0.01 per share. As of September 30, 2019, there were no shares of Series A Junior
Participating Cumulative Preferred Stock issued and outstanding.
The
Company's certificate of incorporation authorizes its board of directors to classify any unissued shares of preferred stock and to reclassify any previously classified but unissued
shares of any series into other classes or series of stock. We may issue preferred stock from time to time in one or more class or series, with the exact terms of each class or series established by
our board of directors. Prior to the issuance of shares of each class or series of preferred stock, the Company's board of directors will set the terms, preferences, conversion or other rights, voting
powers, restrictions, limitations as to
dividends or other distributions, qualifications and terms or conditions of redemption for each such class or series.
The
preferences and other terms of the preferred stock of each class or series will be fixed by the certificate of designation relating to such class or series. We will incorporate by
reference into the registration statement of which this prospectus is a part the form of any certificate of designation that describes the terms of the series of preferred stock we are offering before
the issuance of the related series of preferred stock. The applicable prospectus supplement will specify the terms of the preferred stock, including, where applicable, the
following:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the purchase price;
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the dividend rate, period and payment date and method of calculation for dividends;
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whether dividends will be cumulative or non-cumulative and, if cumulative, the date from which dividends will accumulate;
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the procedures for any auction and remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or repurchase, if applicable, and any restrictions on our ability to exercise those redemption and repurchase
rights;
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any listing of the preferred stock on any securities exchange or market;
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whether the preferred stock will be convertible into our common stock, and, if applicable, the conversion price, or how it will be calculated,
and the conversion period;
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whether the preferred stock will be exchangeable into debt securities, and, if applicable, the exchange price, or how it will be calculated,
and the exchange period;
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voting rights, if any, of the preferred stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other assignment, if any;
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whether interests in the preferred stock will be represented by depositary shares;
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a discussion of any material United States federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the preferred stock as to dividend rights and rights if we liquidate, dissolve or wind up our affairs;
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any limitations on the issuance of any class or series of preferred stock ranking senior to or on a parity with the series of preferred stock
as to dividend rights and rights if we liquidate, dissolve or wind up our affairs; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the preferred stock.
Unless
otherwise specified in the applicable prospectus supplement, the preferred stock will, with respect to dividend rights and rights upon liquidation, dissolution or winding up of
the Company, rank: (i) senior to all classes or series of the common stock, and to any other class or series of the Company's
stock expressly designated as ranking junior to the preferred stock; (ii) on parity with any class or series of the Company's stock expressly designated as ranking on parity with the preferred
stock; and (iii) junior to any other class or series of the Company's stock expressly designated as ranking senior to the preferred stock.
The
DGCL provides that the holders of preferred stock will have the right to vote separately as a class (or, in some cases, as a series) on an amendment to our certificate of
incorporation if the amendment would change the par value, the number of authorized shares of the class or the powers, preferences or special rights of the class or series so as to adversely affect
the class or series, as the case may be. This right is in addition to any voting rights that may be provided for in the applicable certificate of designation.
Our
board of directors may authorize the issuance of preferred stock with voting or conversion rights that could adversely affect the voting power or other rights of the holders of our
common stock. The issuance of preferred stock, while providing flexibility in connection with possible acquisitions and other corporate purposes, could, among other things, have the effect of
delaying, deferring or preventing a change in our control and may adversely affect the market price of the common stock and the voting and other rights of the holders of common stock. Additionally,
the issuance of preferred stock may have the effect of decreasing the market price of our common stock.
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Series C Redeemable Convertible Preferred Stock
In May 2013, 10,431 shares of Series C Preferred Stock were issued at the original issue price of $248.794 per share, of which 2,620
shares remain outstanding as of September 30, 2019. The Company's board of directors approved the certificate of designation, a copy of which has been previously filed with the SEC and which is
incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, creating the Series C Preferred Stock. The following description of the Series C
Preferred Stock is qualified in its entirety by reference to such certificate of designation and the Company's certificate of incorporation. The Series C Preferred Stock is validly issued,
fully paid and nonassessable.
Ranking. The Series C Preferred Stock ranks, with respect to dividend rights and rights upon the
Company's liquidation, dissolution or winding up, senior to all classes or series of the common stock and to any other class or series of stock expressly designated as ranking junior to the
Series C Preferred Stock, including the Series E Preferred Stock.
Dividends. The Series C Preferred Stock is entitled to receive dividends at a rate of 8% per annum, based upon the original issue
price,
payable in equal quarterly installments, in preference to common stock and other junior securities, in cash or in shares of common stock, at our option. The Series C Preferred Stock is
convertible into shares of our common stock, at a conversion price equal to $0.2343 per share (as of September 30, 2019 and subject to future adjustments), at the holder's option. As of
September 30, 2019, the outstanding shares of our Series C Preferred Stock were convertible into an aggregate of 2,782,076 shares of our common stock. The Series C Preferred Stock
has weighted average anti-dilution protection.
Conversion Rights. The holders of Series C Preferred Stock have the right, at their sole option, to convert the Series C
Preferred
Stock into shares of common stock at a conversion price in effect at the time of conversion; provided that such conversion price shall not be less than $0.1554 per share. The Series C Preferred
Stock may also be automatically converted at the then effective conversion rate upon the election by holders of at least 67% of the outstanding shares of Series C Preferred Stock under certain
circumstances.
Redemption Rights. The Series C Preferred Stock is redeemable by the Company upon the election of either the holders of the
Series C
Preferred Stock or us. If the redemption is at the election of the holders of the Series C Preferred Stock, the redemption price will be the original issue price plus any accrued and unpaid
dividends. If the redemption is at the election of the Company, the redemption price will be a per share price equal to the greater of (i) the original issue price per share plus any accrued
and unpaid dividends and (ii) the fair market value of a single share of Series C Preferred Stock.
Voting Rights. The shares of Series C Preferred Stock vote together with the common stock on an as-converted basis on all matters,
including
the election of directors, except as otherwise required by law. Each share of Series C Preferred Stock is entitled to a number of votes equal to the number of whole shares of common stock into
which such share of Series C Preferred Stock is convertible.
Series E Convertible Preferred Stock
In November 2018, 35,000 shares of Series E Preferred Stock were issued at the initial stated value of $1,000 per share, of which 28,269
shares remain outstanding as of September 30, 2019. The Company's board of directors approved the certificate of designation, a copy of which has been previously filed with the SEC and which is
incorporated by reference as an exhibit to the registration statement of which this prospectus is a part, creating the Series E Preferred Stock. The following description of the Series E
Preferred Stock is qualified in its entirety by reference to such certificate of designation and the Company's certificate of incorporation. The Series E Preferred Stock is validly issued,
fully paid and nonassessable.
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Maturity Date. The Series E Preferred Stock will mature on May 2, 2020, unless extended at the option of the holders of the
Series E Preferred Stock.
Ranking. Except for the Series C Preferred Stock, the Series E Preferred Stock ranks, with respect to dividend rights and
rights upon
the Company's liquidation, dissolution or winding up, senior to all classes or series of the common stock and to any other class or series of stock expressly designated as ranking junior to the
Series E Preferred Stock. In the event of a liquidation, dissolution or winding up of the Company, the holders of Series E Preferred Stock will be entitled to receive in cash out of the
Company's assets after any amount that is required to be paid to the Series C Preferred Stock and before any amount shall be paid to the holders of any of capital stock ranking junior to the
Series E Preferred Stock, but pari passu with any capital stock then outstanding that ranks pari passu with the Series E Preferred Stock, an amount per share equal to the greater of
(A) 125% of the conversion amount and (B) the amount per share such holder would receive if such holder converted such shares into common stock immediately prior to the date of such
payment.
Dividends. The Series E Preferred Stock is not entitled to receive dividends, except in connection with certain purchase rights
and other
corporate events, as described in the certificate of designation, or in connection with certain distributions of assets, as described in the certificate of designation, or as, when and if declared by
the board of directors acting in its sole and absolute discretion.
Optional Installment Conversion or Redemption by the Company. On the first trading day of each calendar month commencing on May 1,
2019 and
through, and including, April 1, 2020, and on the maturity date (each an "Installment Date"), provided that all conditions set forth in the certificate of designation have been satisfied, the
Company will convert an amount equal to $2,693,000 in stated value of the Series E Preferred Stock (as such amount may be reduced by earlier conversion, redemption or otherwise) into shares of
common stock at the greater of (x) $0.55 and (y) the lowest of (i) the conversion price then in effect and (ii) 85% of the average volume weighted average price, or VWAP,
of the common stock for the three lowest trading days during the seven consecutive trading day period immediately prior to the applicable Installment Date; provided, however, that the Company may
instead, at its option, pay such amount by redeeming shares of Series E Preferred Stock for cash at the applicable redemption price. If the equity conditions are not satisfied, then any holder
of the Series E Preferred Stock may require the Company to redeem the conversion amount at 125% of such designated portion of the conversion amount.
Mandatory Conversion by the Company. The Company has the right, provided that no equity conditions failure exists, to require each
holder of
Series E Preferred Stock to convert all or any number of shares of Series E Preferred Stock held by such holder at the conversion rate if the closing sale price of our common stock
equals at least 175% of the conversion price for twenty consecutive trading days.
Optional Conversion by the Holders. The holders of the Series E Preferred Stock are entitled to convert any whole number of shares
of
Series E Preferred Stock into shares of common stock at the conversion price of $2.31, subject to adjustments.
Maturity Redemption by the Holders. At any time from and after the tenth business day prior to the maturity date, any holder may require
the Company
to redeem all or any number of shares of Series E Preferred Stock held by such holder at a purchase price equal to 105% of the conversion amount.
Redemption/Conversion Option of the Holders upon a Triggering Event. After a triggering event (as described in the certificate of
designation), each
holder will have the right, at such holder's option, to require the Company to redeem and/or convert all or a portion of such holder's Series E Preferred Stock. Any such redemption would be at
a price per share equal to the greater of (i) 120% of the
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conversion
amount and (ii) the product of (A) the conversion rate in effect multiplied by (B) 120% of the greatest closing sale price of the common stock on any trading day during
the period specified in the certificate of designation. Any such triggering event conversion would be at a conversion rate equal to the quotient of (i) 120% of the conversion amount divided by
(ii) the lower of (A) the applicable conversion price in effect on the trading day immediately preceding the notice of conversion and (B) the greater of (1) $0.55 and
(2) 75% of the lowest VWAP of the common stock on any trading day during the period specified in the certificate of designation.
Redemption Right of the Holders Upon a Change of Control. In the event of a fundamental transaction, as described in the certificate of
designation,
generally including, among other transactions, any merger with or into another entity in which the Company is not the surviving entity or the Company's stockholders immediately prior to such merger or
consolidation do not own at least 50% of the outstanding voting securities of the surviving entity, or a sale of all or substantially all of the Company's assets, each holder will have the right, at
such holder's option, to require the Company to redeem all or a portion of such holder's Series E Preferred Stock. Any such change of control redemption would be at a price per share equal to
125% of the greatest of (i) the conversion amount being redeemed, (ii) the product of (A) the conversion amount being redeemed multiplied by (B) the quotient determined by
dividing (1) the greatest closing sale price of the common stock during the period specified in the certificate of designation by (2) the conversion price, and (iii) the product
of (A) the conversion amount being redeemed and (B) the quotient determined by dividing (1) the aggregate cash consideration and the aggregate cash value of any non-cash
consideration per share of common stock to be paid to holders of the common stock upon consummation of such change of control by (2) the conversion price.
Voting Rights. The shares of Series E Preferred Stock have no voting rights, except on matters required by law or under the
certificate of
designation to be submitted to a class vote of the holders of the Series E Preferred Stock.
Delaware Anti-Takeover Law and Provisions of our Certificate of Incorporation and Bylaws
Delaware Anti-Takeover Law. We are subject to Section 203 of the DGCL. Section 203 generally prohibits a public Delaware
corporation
from engaging in a "business combination" with an "interested stockholder" for a period of three years after the date of the transaction in which the person became an interested stockholder,
unless:
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prior to the date of the transaction, the board of directors of the corporation approved either the business combination or the transaction
which resulted in the stockholder becoming an interested stockholder;
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the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares outstanding (a) shares owned by persons who are directors and also officers and (b) shares owned by employee stock plans in
which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
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on or subsequent to the date of the transaction, the business combination is approved by the board and authorized at an annual or special
meeting of stockholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock which is not owned by the interested stockholder.
Section 203
defines a business combination to include:
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any merger or consolidation involving the corporation and the interested stockholder;
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any sale, transfer, pledge or other disposition involving the interested stockholder of 10% or more of the assets of the corporation;
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subject to exceptions, any transaction that results in the issuance or transfer by the corporation of any stock of the corporation to the
interested stockholder; and
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the receipt by the interested stockholder of the benefit of any loans, advances, guarantees, pledges or other financial benefits provided by or
through the corporation.
In
general, Section 203 defines an interested stockholder as any entity or person beneficially owning 15% or more of the outstanding voting stock of the corporation or any entity
or person affiliated with or controlling or controlled by the entity or person.
Certificate of Incorporation and Bylaws. Provisions of our certificate of incorporation and bylaws may delay or discourage transactions
involving an
actual or potential change in our control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares or transactions that our
stockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of our common stock. Among other things, our certificate of incorporation
and bylaws:
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permit our board of directors to issue up to 5,000,000 shares of preferred stock, with any rights, preferences and privileges as they may
designate;
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provide that the authorized number of directors may be changed only by resolution of the board of directors;
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provide that all vacancies, including newly created directorships, may, except as otherwise required by law and subject to the rights of the
holders of any series of preferred stock, be filled by the affirmative vote of a majority of directors then in office, even if less than a quorum;
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divide our board of directors into three classes;
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generally require that any action to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders
and not be taken by written consent;
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provide that stockholders seeking to present proposals before a meeting of stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide notice in writing in a timely manner, and also specify requirements as to the form and content of a stockholder's notice;
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do not provide for cumulative voting rights (therefore allowing the holders of a majority of the shares of common stock entitled to vote in any
election of directors to elect all of the directors standing for election, if they should so choose); and
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provide that, except as otherwise required by statute and subject to the rights of the holders of any series of preferred stock, special
meetings of our stockholders may be called only by the board of directors pursuant to a resolution adopted by a majority of the directors then in office.
The
amendment of any of these provisions, with the exception of the ability of our board of directors to issue shares of preferred stock and designate any rights, preferences and
privileges thereto, would require approval by the holders of at least two-thirds of our then outstanding common stock.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock and preferred stock is Broadridge Corporate Issuer Solutions, Inc. The transfer
agent and registrar's address is 1717 Arch Street, Suite 1300, Philadelphia, Pennsylvania, 19103.
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DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of common stock, preferred stock and/or debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or debt securities, and the warrants may be attached to or separate from these securities. The following description, together with the
additional information we include in any applicable prospectus supplement or any related free writing prospectus, summarizes the material terms and provisions of the warrants that we may offer under
this prospectus and the related warrant agreements and warrant certificates. While the terms we have summarized below will apply generally to any future warrants that we may offer, we will describe
the particular terms of any series of warrants in more detail in the applicable prospectus supplement or free writing prospectus. The terms of any warrants offered under that prospectus supplement or
free writing prospectus may differ from the terms described below. The following description and any description of the warrants in a prospectus supplement or free writing prospectus may not be
complete and is subject to and qualified in its
entirety by reference to the terms and provisions of the warrant agreement and warrant certificate, which we will file with the SEC in connection with an issuance of the warrants.
General
We will evidence each series of warrants by warrant certificates that we will issue under a separate warrant agreement. We will enter into the
warrant agreement with a warrant agent. We will indicate the name and address of the warrant agent in the applicable prospectus supplement relating to a particular series of warrants.
We
will describe in the applicable prospectus supplement the terms of the series of warrants, including:
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the offering price and aggregate number of warrants offered;
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the currency for which the warrants may be purchased;
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if applicable, the designation and terms of the securities with which the warrants are issued and the number of warrants issued with each such
security or each principal amount of such security;
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if applicable, the date on and after which the warrants and the related securities will be separately transferable;
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in the case of warrants to purchase debt securities, the principal amount of debt securities purchasable upon exercise of one warrant and the
price at, and currency in which, this principal amount of debt securities may be purchased upon such exercise;
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in the case of warrants to purchase common stock or preferred stock, the number of shares of common stock or preferred stock, as the case may
be, purchasable upon the exercise of one warrant and the price at which these shares may be purchased upon such exercise;
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the effect of any merger, consolidation, sale or other disposition of our business on the warrant agreement and the warrants;
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the terms of any rights to redeem or call the warrants;
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any provisions for changes to or adjustments in the exercise price or number of securities issuable upon exercise of the warrants;
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the periods during which, and places at which, the warrants are exercisable;
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the manner of exercise;
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the dates on which the right to exercise the warrants will commence and expire;
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the manner in which the warrant agreement and warrants may be modified;
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federal income tax consequences of holding or exercising the warrants;
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the offering price and aggregate number of warrants offered;
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the terms of the securities issuable upon exercise of the warrants; and
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any other specific terms, preferences, rights or limitations of or restrictions on the warrants.
Prior
to the exercise of their warrants, holders of warrants will not have any of the rights of holders of the securities purchasable upon such exercise, including the right to receive
dividends, if any, or, payments upon our liquidation, dissolution or winding up or to exercise voting rights, if any.
Exercise of Warrants
Each warrant will entitle the holder to purchase the securities that we specify in the applicable prospectus supplement at the exercise price
that we describe in the applicable prospectus supplement. Unless we otherwise specify in the applicable prospectus supplement, holders of the warrants may exercise the warrants at any time up to the
specified time on the expiration date that we set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate representing the warrants to be exercised together with specified information, and paying the
required amount to the warrant agent in immediately available funds, as provided in the applicable prospectus supplement. We will set forth on the reverse side of the warrant certificate and in the
applicable prospectus supplement the information that the holder of the warrant will be required to deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed and duly executed at the corporate trust office of the warrant agent or any other office indicated in
the applicable prospectus supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the warrants represented by the warrant certificate are exercised,
then we will issue a new warrant certificate for the remaining amount of warrants. If we so indicate in the applicable prospectus supplement, holders of the warrants may surrender securities as all or
part of the exercise price for warrants.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the warrants and warrant agreements will be governed by and construed in
accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant agent will act solely as our agent under the applicable warrant agreement and will not assume any obligation or relationship of
agency or trust with any holder of any warrant. A single bank or trust company may act as warrant agent for more than one issue of warrants. A warrant agent will have no duty or responsibility in case
of any default by us under the applicable warrant agreement or warrant, including any duty or responsibility to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the holder of any other warrant, enforce by appropriate legal action its right to exercise, and receive the securities purchasable
upon exercise of, its warrants.
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DESCRIPTION OF DEBT SECURITIES
We may issue senior debt securities from time to time, in one or more series, as either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will apply generally to any future debt securities we may offer under this prospectus, we will describe the particular terms of any debt
securities offered through that prospectus supplement or free writing prospectus. The terms of any debt securities we offer under a prospectus supplement or free writing prospectus may differ from the
terms we describe below. Unless the context requires otherwise, whenever we refer to the "indentures," we also are referring to any supplemental indentures that specify the terms of a particular
series of debt securities.
We
will issue any senior debt securities under the senior indenture that we will enter into with the trustee named in the senior indenture. We will issue any subordinated debt securities
under the subordinated indenture that we will enter into with the trustee named in the subordinated indenture. We have filed forms of these documents as exhibits to the registration statement, of
which this prospectus is a part, and supplemental indentures and forms of debt securities containing the terms of the debt securities being offered will be filed as exhibits to the registration
statement of which this prospectus is a part or will be incorporated by reference from reports that we file with the SEC.
The
indentures will be qualified under the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. We use the term "trustee" to refer to either the trustee under the senior
indenture or the trustee under the subordinated indenture, as applicable.
The
following summaries of material provisions of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety by
reference to, all of the provisions of the indenture applicable to a particular series of debt securities. We urge you to read the applicable prospectus supplement or free writing prospectus and any
related free writing prospectuses related to the debt securities that we may offer under this prospectus, as well as the complete applicable indenture that contains the terms of the debt securities.
Except as we may otherwise indicate, the terms of the senior indenture and the subordinated indenture are identical.
General
We will describe in the applicable prospectus supplement or free writing prospectus the terms of the series of debt securities being offered,
including:
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the title;
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the principal amount being offered, and if a series, the total amount authorized and the total amount outstanding;
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any limit on the amount that may be issued;
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whether or not we will issue the series of debt securities in global form, and, if so, the terms and who the depository will be;
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the maturity date;
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whether and under what circumstances, if any, we will pay additional amounts on any debt securities held by a person who is not a United States
person for tax purposes, and whether we can redeem the debt securities if we have to pay such additional amounts;
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the annual interest rate, which may be fixed or variable, or the method for determining the rate and the date interest will begin to accrue,
the dates interest will be payable and the regular record dates for interest payment dates or the method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place where payments will be payable;
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restrictions on transfer, sale or other assignment, if any;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, the conditions upon which, and the price at which, we may, at our option, redeem the series of debt securities
pursuant to any optional or provisional redemption provisions and the terms of those redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory sinking fund or analogous fund provisions or
otherwise, to redeem, or at the holder's option, to purchase, the series of debt securities and the currency or currency unit in which the debt securities are payable;
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whether the indenture will restrict our ability or the ability of our subsidiary to:
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incur additional indebtedness;
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issue additional securities;
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create liens;
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pay dividends or make distributions in respect of our capital stock or the capital stock of our subsidiary;
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redeem capital stock;
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place restrictions on our subsidiary's ability to pay dividends, make distributions or transfer assets;
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make investments or other restricted payments;
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sell or otherwise dispose of assets;
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enter into sale-leaseback transactions;
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engage in transactions with stockholders or affiliates;
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issue or sell stock of our subsidiary;
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effect a consolidation or merger;
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-
whether the indenture will require us to maintain any interest coverage, fixed charge, cash flow-based, asset-based or other financial ratios;
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-
a discussion of certain material or special United States federal income tax considerations applicable to the debt securities;
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information describing any book-entry features;
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provisions for a sinking fund purchase or other analogous fund, if any;
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the applicability of the provisions in the indenture on discharge;
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whether the debt securities are to be offered at a price such that they will be deemed to be offered at an "original issue discount" as defined
in paragraph (a) of Section 1273 of the Internal Revenue Code of 1986, as amended;
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-
the denominations in which we will issue the series of debt securities, if other than denominations of $1,000 and any integral multiple
thereof;
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-
the currency of payment of debt securities if other than U.S. dollars and the manner of determining the equivalent amount in U.S. dollars; and
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-
any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities, including any additional events of
default or covenants provided with respect to the debt securities, and any terms that may be required by us or advisable under applicable laws or regulations or advisable in connection with the
marketing of the debt securities.
Conversion or Exchange Rights
We will set forth in the applicable prospectus supplement or free writing prospectus the terms on which a series of debt securities may be
convertible into or exchangeable for our common stock, our preferred stock or other securities (including securities of a third-party). We will include provisions as to whether conversion or exchange
is mandatory, at the option of the holder or at our option. We may include provisions pursuant to which the number of shares of our common stock, our preferred stock or other securities (including
securities of a third-party) that the holders of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale
Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the
indentures will not contain any covenant that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all of our assets. However, any
successor to or acquirer of such assets must
assume all of our obligations under the indentures or the debt securities, as appropriate. If the debt securities are convertible into or exchangeable for other securities of ours or securities of
other entities, the person with whom we consolidate or merge or to whom we sell all of our property must make provisions for the conversion of the debt securities into securities that the holders of
the debt securities would have received if they had converted the debt securities before the consolidation, merger or sale.
Events of Default Under the Indenture
Unless we provide otherwise in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, the
following are events of default under the indentures with respect to any series of debt securities that we may issue:
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-
if we fail to pay interest when due and payable and our failure continues for 90 days and the time for payment has not been extended;
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-
if we fail to pay the principal, premium or sinking fund payment, if any, when due and payable at maturity, upon redemption or repurchase or
otherwise, and the time for payment has not been extended;
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-
if we fail to observe or perform any other covenant contained in the debt securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure continues for 90 days after we receive notice from the trustee or holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur.
We
will describe in each applicable prospectus supplement or free writing prospectus any additional events of default relating to the relevant series of debt securities.
If
an event of default with respect to debt securities of any series occurs and is continuing, other than an event of default specified in the last bullet point above, the trustee or the
holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series, by notice to us in writing, and to the trustee if notice is given by such holders, may declare
the unpaid principal, premium, if any, and accrued interest, if any, due and payable immediately. If an event of default specified in the last bullet point above occurs with respect to us, the unpaid
principal, premium, if any, and accrued interest, if any, of each issue of debt securities then outstanding shall be due and payable without any notice or other action on the part of the trustee or
any holder.
The
holders of a majority in principal amount of the outstanding debt securities of an affected series may waive any default or event of default with respect to the series and its
consequences, except defaults or events of default regarding payment of principal, premium, if any, or interest, unless we have cured the default or event of default in accordance with the indenture.
Any waiver shall cure the default or event of default.
Subject
to the terms of the indentures, if an event of default under an indenture shall occur and be continuing, the trustee will be under no obligation to exercise any of its rights or
powers under such indenture at the request or direction of any of the holders of the applicable series of debt securities, unless such holders have offered the trustee reasonable indemnity or security
satisfactory to it against any loss, liability or expense. The holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of that series, provided
that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture; and
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subject to its duties under the Trust Indenture Act, the trustee need not take any action that might involve it in personal liability or might
be unduly prejudicial to the holders not involved in the proceeding.
A
holder of the debt securities of any series will have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek other remedies
if:
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the holder has given written notice to the trustee of a continuing event of default with respect to that series;
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the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series have made written request, and such
holders have offered reasonable indemnity to the trustee or security satisfactory to it against any loss, liability or expense or to be incurred in compliance with instituting the proceeding as
trustee; and
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the trustee does not institute the proceeding, and does not receive from the holders of a majority in aggregate principal amount of the
outstanding debt securities of that series other conflicting directions within 90 days after the notice, request and offer.
These
limitations do not apply to a suit instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt securities, or
other defaults that may be specified in the applicable prospectus supplement or free writing prospectus.
We
will periodically file statements with the trustee regarding our compliance with specified covenants in the indentures.
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Modification of Indenture; Waiver
Subject to the terms of the indenture for any series of debt securities that we may issue, we and the trustee may change an indenture without
the consent of any holders with respect to the following specific matters:
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to fix any ambiguity, defect or inconsistency in the indenture;
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-
to comply with the provisions described above under "Description of Our Debt SecuritiesConsolidation, Merger or Sale;"
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-
to comply with any requirements of the SEC in connection with the qualification of any indenture under the Trust Indenture Act;
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to add to, delete from or revise the conditions, limitations, and restrictions on the authorized amount, terms, or purposes of issue,
authentication and delivery of debt securities, as set forth in the indenture;
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-
to provide for the issuance of and establish the form and terms and conditions of the debt securities of any series as provided under
"Description of Our Debt SecuritiesGeneral," to establish the form of any certifications required to be furnished pursuant to the terms of the indenture or any series of debt securities,
or to add to the rights of the holders of any series of debt securities;
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to evidence and provide for the acceptance of appointment hereunder by a successor trustee;
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to provide for uncertificated debt securities and to make all appropriate changes for such purpose;
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to add to our covenants such new covenants, restrictions, conditions or provisions for the benefit of the holders, to make the occurrence, or
the occurrence and the continuance, of a default in any such additional covenants, restrictions, conditions or provisions an event of default or to surrender any right or power conferred to us in the
indenture; or
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series.
In
addition, under the indentures, the rights of holders of a series of debt securities may be changed by us and the trustee with the written consent of the holders of at least a
majority in aggregate principal amount of the outstanding debt securities of each series that is affected. However, subject to the terms of the indenture for any series of debt securities that we may
issue or as otherwise provided in the prospectus supplement or free writing prospectus applicable to a particular series of debt securities, we and the trustee may make the following changes only with
the consent of each holder of any outstanding debt securities affected:
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-
extending the stated maturity of the series of debt securities;
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-
reducing the principal amount, reducing the rate of or extending the time of payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or
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-
reducing the percentage of debt securities, the holders of which are required to consent to any amendment, supplement, modification or waiver.
Discharge
Each indenture provides that, subject to the terms of the indenture and any limitation otherwise provided in the prospectus supplement or free
writing prospectus applicable to a particular series of
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debt
securities, we can elect to be discharged from our obligations with respect to one or more series of debt securities, except for specified obligations, including obligations
to:
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register the transfer or exchange of debt securities of the series;
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-
replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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recover excess money held by the trustee;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
In
order to exercise our rights to be discharged, we must deposit with the trustee money or government obligations sufficient to pay all the principal of, any premium and interest on,
the debt securities of the series on the dates payments are due.
Form, Exchange and Transfer
We will issue the debt securities of each series only in fully registered form without coupons and, unless we otherwise specify in the
applicable prospectus supplement or free writing prospectus, in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series in
temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository Trust Company or another depository named by us and identified in a
prospectus supplement or free writing prospectus with respect to that series.
At
the option of the holder, subject to the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement or free writing
prospectus, the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series, in any authorized denomination and of like tenor and
aggregate principal amount.
Subject
to the terms of the indentures and the limitations applicable to global securities set forth in the applicable prospectus supplement or free writing prospectus, holders of the
debt securities may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed thereon duly executed if so required by us or the
security registrar, at the office of the security registrar or at the office of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder
presents for transfer or exchange, we will make no service charge for any registration of transfer or exchange, but we may require payment of any taxes or other governmental charges.
We
will name in the applicable prospectus supplement or free writing prospectus the security registrar, and any transfer agent in addition to the security registrar, that we initially
designate for any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer
agent acts, except that we will be required to maintain a transfer agent in each place of payment for the debt securities of each series. If we elect to redeem the debt securities of any series, we
will not be required to:
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-
issue, register the transfer of, or exchange any debt securities of that series during a period beginning at the opening of business
15 days before the day of mailing of a notice of redemption of any debt securities that may be selected for redemption and ending at the close of business on the day of the mailing; or
-
-
register the transfer of or exchange any debt securities so selected for redemption, in whole or in part, except the unredeemed portion of any
debt securities we are redeeming in part.
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Information Concerning the Trustee
The trustee, other than during the occurrence and continuance of an event of default under an indenture, undertakes to perform only those duties
as are specifically set forth in the
applicable indenture. Upon an event of default under an indenture, the trustee must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Subject
to this provision, the trustee is under no obligation to exercise any of the powers given it by the indentures at the request of any holder of debt securities unless it is
offered reasonable security and indemnity against the costs, expenses and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will make payment of the interest on any
debt securities on any interest payment date to the person in whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record date
for the interest.
We
will pay principal of and any premium and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless we otherwise
indicate in the applicable prospectus supplement or free writing prospectus, we will make interest payments by check that we will mail to the holder or by wire transfer to certain holders. Unless we
otherwise indicate in the applicable prospectus supplement or free writing prospectus, we will designate the corporate trust office of the trustee as our sole paying agent for payments with respect to
debt securities of each series. We will name in the applicable prospectus supplement or free writing prospectus any other paying agents that we initially designate for the debt securities of a
particular series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All
money we pay to a paying agent or the trustee for the payment of the principal of or any premium or interest on any debt securities that remains unclaimed at the end of two years
after such principal, premium or interest has become due and payable will be repaid to us, and the holder of the debt security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities will be governed by and construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
Ranking of Debt Securities
The subordinated debt securities will be subordinate and junior in priority of payment to certain of our other indebtedness to the extent
described in a prospectus supplement or free writing prospectus. The subordinated indenture does not limit the amount of subordinated debt securities that we may issue. It also does not limit us from
issuing any other secured or unsecured debt.
The
senior debt securities will rank equally in right of payment to all our other senior unsecured debt. The senior indenture does not limit the amount of senior debt securities that we
may issue. It also does not limit us from issuing any other secured or unsecured debt.
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DESCRIPTION OF UNITS
We may issue units comprised of shares of common stock, shares of preferred stock, debt securities and warrants in any combination. We may issue
units in such amounts and in as many distinct series as we wish. This section outlines certain provisions of the units that we may issue. If we issue units, they will be issued under one or more unit
agreements to be entered into between us and a bank or other financial institution, as unit agent. The specific terms of any series of units offered will be described in the applicable prospectus
supplement or free writing prospectus. The specific terms of any series of units may differ from the general description of terms presented below.
We
will file as exhibits to the registration statement of which this prospectus is a part, or will incorporate by reference from reports that we file with the SEC, the form of unit
agreement that describes the terms of the series of units we are offering, and any supplemental agreements, before the
issuance of the related series of units. The following summaries of material terms and provisions of the units are subject to, and qualified in their entirety by reference to, all the provisions of
the unit agreement and any supplemental agreements applicable to a particular series of units. We urge you to read any prospectus supplement related to any series of units we may offer, as well as the
complete unit agreement and unit certificate that contain the terms of the units.
General
Each unit that we may issue will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the
holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time before a specified date. The applicable prospectus supplement may describe:
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-
the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those
securities may be held or transferred separately;
-
-
any provisions of the governing unit agreement;
-
-
the price or prices at which such units will be issued;
-
-
the applicable United States federal income tax considerations relating to the units;
-
-
any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units; and
-
-
any other terms of the units and of the securities comprising the units.
The
provisions described in this section, as well as those described under "Description of Common Stock and Preferred Stock," "Description of Warrants" and "Description of Debt
Securities" will apply to the securities included in each unit, to the extent relevant and as may be updated in any prospectus supplements.
Issuance in Series
We may issue units in such amounts and in as many distinct series as we wish. This section summarizes terms of the units that apply generally to
all series. Most of the financial and other specific terms of a particular series of units will be described in the applicable prospectus supplement.
Unit Agreements
We will issue the units under one or more unit agreements to be entered into between us and a bank or other financial institution, as unit
agent. We may add, replace or terminate unit agents from
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time
to time. We will identify the unit agreement under which each series of units will be issued and the unit agent under that agreement in the applicable prospectus supplement.
The
following provisions will generally apply to all unit agreements unless otherwise stated in the applicable prospectus supplement:
Modification without Consent
We and the applicable unit agent may amend any unit or unit agreement without the consent of any
holder:
-
-
to cure any ambiguity, including modifying any provisions of the governing unit agreement that differ from those described below;
-
-
to correct or supplement any defective or inconsistent provision; or
-
-
to make any other change that we believe is necessary or desirable and will not adversely affect the interests of the affected holders in any
material respect.
We
do not need any approval to make changes that affect only units to be issued after the changes take effect. We may also make changes that do not adversely affect a particular unit in
any material respect, even if they adversely affect other units in a material respect. In those cases, we do not need to obtain the approval of the holder of the unaffected unit; we need only obtain
any required approvals from the holders of the affected units.
Modification with Consent
We may not amend any particular unit or a unit agreement with respect to any particular unit unless we obtain the consent of the holder of that
unit, if the amendment would:
-
-
impair any right of the holder to exercise or enforce any right under a security included in the unit if the terms of that security require the
consent of the holder to any changes that would impair the exercise or enforcement of that right; or
-
-
reduce the percentage of outstanding units or any series or class the consent of whose holders is required to amend that series or class, or
the applicable unit agreement with respect to that series or class, as described below.
Any
other change to a particular unit agreement and the units issued under that agreement would require the following approval:
-
-
If the change affects only the units of a particular series issued under that agreement, the change must be approved by the holders of a
majority of the outstanding units of that series; or
-
-
If the change affects the units of more than one series issued under that agreement, it must be approved by the holders of a majority of all
outstanding units of all series affected by the change, with the units of all the affected series voting together as one class for this purpose.
These
provisions regarding changes with majority approval also apply to changes affecting any securities issued under a unit agreement, as the governing document.
In
each case, the required approval must be given by written consent.
Unit Agreements Will Not Be Qualified under Trust Indenture Act
No unit agreement will be qualified as an indenture, and no unit agent will be required to qualify as a trustee, under the Trust Indenture Act.
Therefore, holders of units issued under unit agreements will not have the protections of the Trust Indenture Act with respect to their units.
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Mergers and Similar Transactions Permitted; No Restrictive Covenants or Events of Default
The unit agreements will not restrict our ability to merge or consolidate with, or sell our assets to, another corporation or other entity or to
engage in any other transactions. If at any time we merge or consolidate with, or sell our assets substantially as an entirety to, another corporation or other entity, the successor entity will
succeed to and assume our obligations under the unit agreements. We will then be relieved of any further obligation under these agreements.
The
unit agreements will not include any restrictions on our ability to put liens on our assets, nor will they restrict our ability to sell our assets. The unit agreements also will not
provide for any events of default or remedies upon the occurrence of any events of default.
Governing Law
Unless we provide otherwise in the applicable prospectus supplement, the unit agreements and the units will be governed by and construed in
accordance with the laws of the State of New York.
Form, Exchange and Transfer
We will issue each unit in global (i.e., book-entry) form only. Units in book-entry form will be
represented by a global security registered in the name of a depositary, which will be the holder of all the units represented by the global security. Those who own beneficial interests in a unit will
do so through participants in the depositary's system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We will
describe book-entry securities, and other terms regarding the issuance and registration of the units in the applicable prospectus supplement.
Each
unit and all securities comprising the unit will be issued in the same form.
If
we issue any units in registered, non-global form, the following will apply to them.
The
units will be issued in the denominations stated in the applicable prospectus supplement. Holders may exchange their units for units of smaller denominations or combined into fewer
units of larger denominations, as long as the total amount is not changed.
-
-
Holders may exchange or transfer their units at the office of the unit agent. Holders may also replace lost, stolen, destroyed or mutilated
units at that office. We may appoint another entity to perform these functions or perform them ourselves.
-
-
Holders will not be required to pay a service charge to transfer or exchange their units, but they may be required to pay for any tax or other
governmental charge associated with the transfer or exchange. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder's proof of legal
ownership. The transfer agent may also require an indemnity before replacing any units.
-
-
If we have the right to redeem, accelerate or settle any units before their maturity, and we exercise our right as to less than all those units
or other securities, we may block the exchange or transfer of those units during the period beginning 15 days before the day we mail the notice of exercise and ending on the day of that
mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any unit selected for early settlement, except that we will continue to
permit transfers and exchanges of the unsettled portion of any unit being partially settled. We may also block the transfer or exchange of any unit in this manner if the unit includes securities that
are or may be selected for early settlement.
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Only
the depositary will be entitled to transfer or exchange a unit in global form, since it will be the sole holder of the unit.
Payments and Notices
In making payments and giving notices with respect to our units, we will follow the procedures as described in the applicable prospectus
supplement.
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SELLING SECURITYHOLDERS
Selling securityholders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us common
stock, preferred stock, warrants, debt securities or units, as applicable, in various private transactions. Such selling securityholders may be parties to registration rights agreements with us, or we
otherwise may have agreed or may agree in the future to register their securities for resale. The initial purchasers of our securities, as well as their transferees, pledgees, donees or successors,
all of whom we refer to as "selling securityholders," may from time to time offer and sell the securities pursuant to this prospectus and any applicable prospectus supplement.
The
selling securityholders may offer for sale all or some portion of the securities that they hold. To the extent that any of the selling securityholders are broker or dealers, they are
deemed to be, under interpretations of the SEC, "underwriters" within the meaning of the Securities Act.
The
applicable prospectus supplement will set forth the name of each of the selling securityholders and the number and classes of our securities beneficially owned by such selling
securityholders that are covered by such prospectus supplement. The applicable prospectus supplement will also disclose whether any of the selling securityholders has held any position or office with,
has been employed by or otherwise has had a material relationship with us during the three years prior to the date of the prospectus supplement.
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PLAN OF DISTRIBUTION
We, or selling securityholders, may sell the securities domestically or abroad to one or more underwriters for public offering and sale by them
or may sell the securities to investors directly or through dealers or agents, or through a combination of methods. Any underwriter, dealer or agent involved in the offer and sale of the securities
will be named in the applicable prospectus supplement.
Underwriters
may offer and sell the securities at: (i) a fixed price or prices, which may be changed, (ii) market prices prevailing at the time of sale, (iii) prices
related to the prevailing market prices at the time of sale or (iv) negotiated prices. We also may, from time to time, authorize underwriters acting as our agents to offer and sell the
securities upon the terms and conditions as are set forth in the applicable prospectus supplement. In connection with the sale of securities, underwriters may be deemed to have received compensation
from us in the form of underwriting discounts or commissions and may also receive commissions from purchasers of securities for whom they may act as agent. Underwriters may sell securities to or
through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as
agent.
Any
underwriting compensation paid by us to underwriters, dealers or agents in connection with the offering of securities, and any discounts, concessions or commissions allowed by
underwriters to participating dealers, will be set forth in the applicable prospectus supplement. Dealers and agents participating in the distribution of the securities may be deemed to be
underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions under the
Securities Act. Underwriters, dealers and agents may be entitled, under agreements entered into with us and our operating partnership, to indemnification against and contribution toward civil
liabilities, including liabilities under the Securities Act. We will describe any indemnification agreement in the applicable prospectus supplement.
Unless
we specify otherwise in the applicable prospectus supplement, any series of securities issued hereunder will be a new issue with no established trading market (other than the
common stock, which is listed on the Nasdaq Capital Market). If the Company sells any shares of the common stock pursuant to a prospectus supplement, such shares will be listed on the Nasdaq Capital
Market, subject to official notice of issuance. We may elect to list any other securities issued hereunder on any exchange, but we are not obligated to do so. Any underwriters or agents to or through
whom such securities are sold by us or our operating partnership for public offering and sale may make a market in such securities, but such underwriters or agents will not be obligated to do so and
may discontinue any market making at any time without notice. We cannot assure you as to the liquidity of the trading market for any such securities.
If
indicated in the applicable prospectus supplement, we may authorize underwriters or other persons acting as our agents to solicit offers by institutions or other suitable purchasers
to purchase the securities from us at the public offering price set forth in the prospectus supplement, pursuant to delayed delivery contracts providing for payment and delivery on the date or dates
stated in the prospectus supplement. These purchasers may include, among others, commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable
institutions. Delayed delivery contracts will be subject to the condition that the purchase of the securities covered by the delayed delivery contracts will not at the time of delivery be prohibited
under the laws of any jurisdiction in the United States to which the purchaser is subject. The underwriters and agents will not have any responsibility with respect to the validity or performance of
these contracts.
To
facilitate the offering of the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain, or otherwise affect the price of the
securities. This may include
over-allotments or short sales of the securities, which involves the sale by persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would
cover the
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over-allotments
or short positions by making purchases in the open market or by exercising their over-allotment option. In addition, these persons may stabilize or maintain the price of the securities
by bidding for or purchasing securities in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may be reclaimed if securities sold
by them are repurchased in connection with stabilization transactions. The effect of these transactions may be to stabilize or maintain the market price of the securities at a level above that which
might otherwise prevail in the open market. These transactions may occur on the Nasdaq Capital Market or any other market where our securities may be traded, and may be discontinued at any time.
The
underwriters, dealers and agents and their affiliates may be customers of, engage in transactions with and perform services for us and our operating partnership in the ordinary
course of business.
LEGAL MATTERS
The validity of the securities being offered by this prospectus will be passed upon by Goodwin Procter LLP, Boston, Massachusetts.
EXPERTS
The consolidated financial statements of Plug Power Inc. and subsidiaries as of December 31, 2018 and 2017, and for each of the
years in the three-year period ended December 31, 2018, and management's assessment of the effectiveness of internal control over financial reporting as of December 31, 2018, have been
incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as
experts in accounting and auditing. The audit report covering the 2018
consolidated financial statements refers to a change to the accounting for leases due to the adoption of Accounting Standards Codification Topic 842, Leases.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information regarding registrants that file electronically with the SEC at www.sec.gov. In addition, we maintain a website that contains information
about us at www.plugpower.com. The information found on, or otherwise accessible through, this website is not incorporated into, and does not form a part of, this prospectus or any other report
or document we file with or furnish to the SEC.
We
have filed with the SEC a registration statement on Form S-3, of which this prospectus is a part, including exhibits, schedules and amendments filed with, or incorporated by
reference in, this registration statement, under the Securities Act, with respect to the securities registered hereby. This prospectus and any accompanying prospectus supplement do not contain all of
the information set forth in the registration statement and exhibits and schedules to the registration statement. For further information with respect to our Company and the securities registered
hereby, reference is made to the registration statement, including the exhibits to the registration statement. Statements contained in this prospectus and any accompanying prospectus supplement as to
the contents of any contract or other document referred to, or incorporated by reference in, this prospectus and any accompanying prospectus supplement are not necessarily complete and, where that
contract is an exhibit to the registration statement, each statement is qualified in all respects by the exhibit to which the reference relates.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you
by referring you to those documents instead of having to repeat the information in this prospectus. The information incorporated by reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and supersede this information. We incorporate by reference the documents listed below that we have filed with the
SEC:
-
-
our Annual Report on
Form 10-K for the year ended December 31, 2018, filed with the SEC on March 13, 2019;
-
-
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019,
filed with the SEC on May 8, 2019,
August 9, 2019 and
November 8, 2019, respectively;
-
-
our Definitive Proxy Statement on Schedule 14A filed with the SEC on
April 5, 2019 (solely to the extent specifically incorporated by
reference into the Annual Report on Form 10-K for the year ended
December 31, 2018);
-
-
our Current Report on Form 8-K filed with the SEC on
March 20, 2019,
April 3, 2019 (except for information contained therein which is furnished
rather than filed), May 15, 2019,
June 10, 2019,
June 21, 2019,
September 9, 2019 and
December 2, 2019;
-
-
the section entitled "Description of
Registrant's Securities to be Registered" contained in our Registration Statement on Form 8-A, filed pursuant to Section 12(b) of the Exchange Act, on October 1, 1999;
and
-
-
all documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this
prospectus and prior to the termination of the offering of the underlying securities (excluding any portions of such documents that are deemed "furnished" to the SEC pursuant to applicable rules and
regulations).
We
will furnish without charge to each person, including any beneficial owner, to whom a prospectus is delivered, on written or oral request of such person, a copy of any or all of the
documents incorporated by reference in this prospectus (not including exhibits to such documents, unless such exhibits are specifically incorporated by reference in this prospectus or into such
documents). You should direct any requests for documents to:
Plug
Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
Attention: General Counsel
Telephone: (518) 782-7700
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Table of Contents
$1,500,000,000
Common Stock
PROSPECTUS SUPPLEMENT
Morgan Stanley
, 2021
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