Item 1.01.
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Entry into a Material Definitive Agreement.
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Agreement and Plan of Merger – United Hydrogen
Group Inc.
On June 18, 2020, Plug Power Hydrogen Holdings,
Inc. (the “Buyer”), a Delaware corporation and wholly-owned and direct subsidiary of Plug Power Inc. (the “Company”),
entered into an Agreement and Plan of Merger (the “UHG Merger Agreement”) with UHG Merger Sub, Inc., a Delaware corporation
and wholly-owned and indirect subsidiary of the Company (“Merger Sub,” and together with the Buyer, the “UHG
Acquiring Parties”), United Hydrogen Group Inc., a Delaware corporation (“UHG”), and Vladimir Prerad, as the
representative of the stockholders of UHG. On June 18, 2020, pursuant to the UHG Merger Agreement, Merger Sub merged with and into
UHG (the “UHG Merger”), with UHG as a surviving corporation in the UHG Merger. At the effective time of the UHG Merger,
each share of common stock of UHG was converted into the right to receive (A) a number of shares of the Company’s common
stock, par value $0.01 (“Common Stock”), equal to approximately $1,679 and (B) a contingent right to a portion of certain
earn-out payments.
Total consideration paid by the
Company in connection with the UHG Merger was approximately $65 million and consisted of: approximately $19.7 million of
Common Stock (or 4,430,076 shares) issued to stockholders of UHG and certain lenders to UHG; the assumption of $16.4 million
of UHG indebtedness by the surviving company and guaranteed by the Company at closing; the payment of approximately $18
million of cash to certain lenders of UHG to satisfy additional indebtedness; the cancellation of a promissory note issued by
UHG and owned by the Company in an amount equal to $8.0 million; a potential earn out and other deferred payments aggregating
$1.5 million (payable in cash, Common Stock or a combination); approximately $1.0 million for certain real property; and
approximately $1 million relating to holdbacks and UHG transaction expenses. The UHG Merger Agreement contains customary
representations, warranties and covenants of Buyer and the UHG Acquiring Parties.
The foregoing description of the UHG Merger
Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the UHG Merger Agreement,
which is filed as Exhibit 2.1 hereto and incorporated herein by reference.
Agreement and Plan of Merger – Giner ELX, Inc.
On June 22, 2020, the Company, Giner ELX,
Inc., a Delaware corporation (the “Giner ELX”), Giner ELX Sub, LLC, a Delaware limited liability company and an indirect
wholly owned subsidiary of the Company (“ELX LLC”), Giner ELX Merger Sub, Inc., a Delaware corporation and a direct
wholly owned subsidiary of ELX LLC (“ELX Merger Sub” and together with ELX LLC and the Company, the “Giner ELX
Acquiring Parties”), and Giner, Inc., as the representative of the Stockholders of Giner ELX, entered into an Agreement and
Plan of Merger (the “Giner ELX Merger Agreement”). On June 22, 2020, pursuant to the Giner ELX Merger Agreement, in
a series of integrated steps, ELX Merger Sub merged with and into Giner ELX, and immediately thereafter, Giner ELX merged with
and into ELX LLC (collectively, the “Giner ELX Merger”), and the separate corporate existences of each of ELX Merger
Sub and Giner ELX thereupon ceased, and ELX LLC survived as an indirect wholly owned subsidiary of the Company.
At the effective time of the Giner ELX
Merger, each share of common stock of Giner ELX was converted into the right to receive (A) a number of shares of Common Stock
equal to approximately $144, plus (B) cash equal to approximately $183 and (C) a contingent right to certain earn-out payments
based on future activity.
Total consideration paid by the
Company in connection with the Giner ELX Merger was approximately $58 million and consisted of: $15.9 million of Common Stock
(or 3,458,254 shares), approximately $20.5 million of cash paid to Giner ELX stockholders; approximately $5 million of cash
was paid in respect of certain indebtedness and certain transaction costs; and a potential earn out and other deferred
payments aggregating $16 million (payable in cash, Common Stock or a combination). In 2024, Giner ELX stockholders are also
eligible to receive up to $10 million of warrants for Common Stock, exercisable for 2-years, based on specified revenue at
ELX LLC exceeding certain targets assumed for 2023.
The Giner ELX Merger Agreement contains
customary representations, warranties and covenants of Giner ELX and the Giner ELX Acquiring Parties.
The Company has agreed, (A) within 60 days
after the closing of the Giner ELX Merger and (B) within as promptly as reasonably practicable following the time any earn-out
shares are issued and in any event within 60 days of each such issuance, to file with the Securities and Exchange Commission either
a prospectus supplement to the Company’s existing shelf registration statement or a registration statement (the “Resale
Registration Statement”) registering the resale of certain shares of Common Stock issued to the Giner ELX stockholders (the
“Resale Holders”) in the Giner ELX Merger. The Company has agreed to use its commercially reasonable efforts to have
the Resale Registration Statement declared effective as soon as reasonably practicable after the fling thereof. The Resale Holders
have agreed, with limited exception, not to (i) offer, pledge, sell, lend, or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock issued in the Giner ELX Merger or (ii) 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 issued in the Giner ELX Merger, within 60
days after the closing of the Giner ELX Merger.
Generate Loan Amendments
On June 18, 2020, the Company and its subsidiaries,
Emerging Power Inc., a Delaware corporation (“Emerging”), and Emergent Power Inc., a Delaware corporation (“Emergent”),
entered into a Seventh Amendment (the “Seventh Amendment”) to the Loan and Security Agreement, dated as of March 29,
2019, as amended (the “Loan Agreement”), with Generate PPL SPV I, LLC, as assignee of Generate Lending, LLC, a Delaware
limited liability company (“Generate”). The Seventh Amendment amends the Loan Agreement to, among other things, (i)
permit the acquisition of UHG by the Company, including the payment of certain earn-out payments in connection therewith, (ii)
permit the acquisition from United Hydrogen, Inc. of certain real estate used by UHG, (iii) permit the guarantee, amendment and
extension of certain of the existing debt of UHG, subject to the subordination thereof to the indebtedness under the Loan Agreement,
(iv) add additional change of control triggers related to ownership by the Company of UHG and of Plug Power Hydrogen Holdings,
Inc., a subsidiary of the Company and the direct parent of UHG, (v) add an additional covenant restricting certain capital expenditures
made by the Company from and after the date that is twelve months following the date of the Seventh Amendment, which restrictions
include a $20 million per year cap on certain capital expenditures (other than maintenance capital expenditures, capital
expenditures financed with the cash proceeds of permitted indebtedness or equity issuances and other permitted investments) and
(vi) add an additional event of default triggered by the revocation, invalidation, or cessation any subordination agreement purporting
to provide indebtedness under the Loan Agreement priority over other certain other debt of the Company and its subsidiaries.
On June 22, 2020, the Company, Emerging
and Emergent entered into an Eighth Amendment (the “Eighth Amendment”) to the Loan Agreement with Generate. The Eighth
Amendment amends the Loan Agreement to, among other things, (i) permit the acquisition of Giner ELX by the Company, including the
payment of certain earn-out payments in connection therewith, (ii) add additional change of control triggers related to ownership
by the Company of Giner and ELX LLC, (iii) amend the amortization schedule of the term loans and to provide for the further amendment
of the amortization schedule concurrently with any additional borrowings by the Company under the Loan Agreement, and (iv) provide
for Generate’s agreement to lend to the Company $50 million in incremental term loans between July 16, 2020 and December
31, 2020 in the following amounts: (a) on July 16, 2020, if the 7.50% Convertible Senior Notes due 2023 issued by Plug Power, with
a stated maturity date of January 5, 2023 (the “2023 Notes”) have been paid in full, including upon conversion, on
or prior to July 15, 2020, $25 million and, if the 2023 Notes have not been paid in full on or prior to July 15, 2020, the lesser
of $25 million and $200 million minus the amount of secured debt of the Company outstanding on July 15, 2020; (b) on October 16,
2020, if the 2023 Notes have been paid in full, including upon conversion, on or prior to October 15, 2020, $25 million and, if
the 2023 Notes have not been paid in full on or prior to October 15, 2020, the lesser of $12.5 million and $200 million minus the
amount of secured debt of the Company outstanding on July 15, 2020; (c) on December 16, 2020, if the 2023 Notes have not been paid
in full on or prior to October 15, 2020, the lesser of $12.5 million and $200 million minus the amount of secured debt of the Company
outstanding on December 15, 2020; and (d) on December 31, 2020, $50 million minus the amount under the preceding clauses (a) and
(b). Generate’s agreement to lend, and the Company’s agreement to request, those incremental term loans are subject
to customary terms and conditions, including that no default or event of default exist and other conditions consistent with the
conditions precedent to term loans that Generate has already made under the Loan Agreement.
The foregoing descriptions of the Seventh
Amendment and the Eighth Amendment do not purport to be complete and are qualified in their entirety by reference to the full text
of the Seventh Amendment and Eighth Amendment, copies of which will be filed as exhibits to the Company’s Quarterly Report
on Form 10-Q for the quarter ended June 30, 2020.