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TABLE OF
CONTENTS
Table of
Contents
As
filed with the Securities and Exchange Commission on
December 2, 2019
Registration
No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLUG
POWER INC.
(Exact name of
registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization) |
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22-3672377
(I.R.S. Employer
Identification Number) |
968
Albany Shaker Road
Latham, New York 12110
(518) 782-7700
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Andrew Marsh
President and Chief Executive Officer
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
(518) 782-7700
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
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With copies to: |
Gerard L. Conway Jr., Esq.
General Counsel
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
(518) 782-7700 |
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Robert P. Whalen, Jr., Esq.
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000 |
Approximate date of commencement of proposed sale to the
public:
From time to time after the effective date of this registration
statement
If
the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check
the following box. o
If
any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, as amended, other than securities
offered only in connection with dividend or interest reinvestment
plans, check the following box. ý
If
this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective registration
statement for the same offering. o
If
this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the
earlier effective registration statement for the same
offering. o
If
this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant to
Rule 462(e) under the Securities Act, check the following
box. ý
If
this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register
additional securities or additional classes of securities pursuant
to Rule 413(b) under the Securities Act, check the following
box. o
Indicate
by check mark whether the registrant is a large accelerated filer,
an accelerated filer, a non-accelerated filer, smaller reporting
company, or an emerging growth company. See the definitions of
"large accelerated filer," "accelerated filer," "smaller reporting
company," and "emerging growth company" in Rule 12b-2 of the
Exchange Act.
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Large accelerated filer o |
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Accelerated filer ý |
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Non-accelerated filer o |
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Smaller reporting company o
Emerging growth company o
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If
an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act. o
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
To Be Registered
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Amount to be
Registered
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Proposed Maximum
Offering Price Per
Unit
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Proposed Maximum
Aggregate Offering
Price(1)
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Amount of
Registration Fee(1)
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Common Stock, par value $0.01 per share
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(2)(3) |
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(2)(3) |
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(2)(3) |
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(5) |
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Preferred Stock, par value $0.01 per
share
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(2)(3) |
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(2)(3) |
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(2)(3) |
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(5) |
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Warrants
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(2)(3) |
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(2)(3) |
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(2)(3) |
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(5) |
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Debt Securities
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(2)(3) |
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(2)(3) |
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(2)(3) |
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(5) |
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Units(4)
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(2)(3) |
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(2)(3) |
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(2)(3) |
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(5) |
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- In accordance with
Rule 415(a)(6) under the Securities Act of 1933, as amended,
or the Securities Act, the securities registered pursuant to this
registration statement include $99,723,150.56 of unsold securities
previously registered on Form S-3 (Registration Statement
No. 333-214737), as filed with the Securities and Exchange
Commission on November 21, 2016 and amended on
December 8, 2016. In connection with the prior registration of
such unsold securities, the registrant paid a registration fee of
$11,557.91 applicable to such unsold securities.
- (2)
- Omitted pursuant to
General Instruction II.E to Form S-3.
- (3)
- An unspecified number
of the securities of each identified class is being registered for
possible issuance from time to time at indeterminate prices.
Separate consideration may or may not be received for securities
that are issuable on exercise, conversion or exchange of other
securities or that are issued in units. In accordance with
Rules 456(b) and 457(r) under the Securities Act, we are
deferring payment of all applicable registration fees.
- (4)
- Any registered
securities may be sold separately or as units with other registered
securities. Units may consist of two or more securities in any
combination, which may or may not be separable from one another.
Because units will consist of securities registered hereunder, no
separate registration fee is required for the units.
- (5)
- Deferred in reliance
upon Rules 456(b) and 457(r) under the Securities
Act.
Table of
Contents
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.
Table of
Contents
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
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1 |
OUR COMPANY
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2 |
RISK FACTORS
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
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USE OF PROCEEDS
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DESCRIPTION OF COMMON STOCK AND PREFERRED
STOCK
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DESCRIPTION OF WARRANTS
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DESCRIPTION OF DEBT SECURITIES
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DESCRIPTION OF UNITS
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SELLING SECURITYHOLDERS
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PLAN OF DISTRIBUTION
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LEGAL MATTERS
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EXPERTS
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WHERE YOU CAN FIND ADDITIONAL INFORMATION
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INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
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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:
- •
- the title and stated
value;
- •
- the number of shares
we are offering;
- •
- the liquidation
preference per share;
- •
- the purchase
price;
- •
- the dividend rate,
period and payment date and method of calculation for
dividends;
- •
- whether dividends
will be cumulative or non-cumulative and, if cumulative, the date
from which dividends will accumulate;
- •
- the procedures for
any auction and remarketing, if any;
- •
- 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;
- •
- any listing of the
preferred stock on any securities exchange or market;
- •
- 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;
- •
- 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;
- •
- voting rights, if
any, of the preferred stock;
- •
- preemptive rights, if
any;
- •
- restrictions on
transfer, sale or other assignment, if any;
- •
- whether interests in
the preferred stock will be represented by depositary
shares;
- •
- a discussion of any
material United States federal income tax considerations applicable
to the preferred stock;
- •
- the relative ranking
and preferences of the preferred stock as to dividend rights and
rights if we liquidate, dissolve or wind up our affairs;
- •
- 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
- •
- 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:
- •
- 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;
- •
- 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
- •
- 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:
- •
- 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;
- •
- 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
- •
- 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:
- •
- 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;
- •
- provide that the
authorized number of directors may be changed only by resolution of
the board of directors;
- •
- 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;
- •
- divide our board of
directors into three classes;
- •
- 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;
- •
- 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;
- •
- 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
- •
- 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:
- •
- the offering price
and aggregate number of warrants offered;
- •
- the currency for
which the warrants may be purchased;
- •
- 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;
- •
- if applicable, the
date on and after which the warrants and the related securities
will be separately transferable;
- •
- 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;
- •
- 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;
- •
- the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreement and the warrants;
- •
- the terms of any
rights to redeem or call the warrants;
- •
- any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
- •
- the periods during
which, and places at which, the warrants are exercisable;
- •
- the manner of
exercise;
- •
- 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;
- •
- federal income tax
consequences of holding or exercising the warrants;
- •
- the offering price
and aggregate number of warrants offered;
- •
- the terms of the
securities issuable upon exercise of the warrants; and
- •
- 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:
- •
- the title;
- •
- the principal amount
being offered, and if a series, the total amount authorized and the
total amount outstanding;
- •
- any limit on the
amount that may be issued;
- •
- 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;
- •
- the maturity
date;
- •
- 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;
- •
- 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;
- •
- the terms of the
subordination of any series of subordinated debt;
- •
- the place where
payments will be payable;
- •
- restrictions on
transfer, sale or other assignment, if any;
- •
- our right, if any, to
defer payment of interest and the maximum length of any such
deferral period;
- •
- 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;
- •
- 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;
- •
- whether the indenture
will restrict our ability or the ability of our subsidiary
to:
- •
- incur additional
indebtedness;
- •
- issue additional
securities;
- •
- create liens;
- •
- pay dividends or make
distributions in respect of our capital stock or the capital stock
of our subsidiary;
- •
- redeem capital
stock;
- •
- place restrictions on
our subsidiary's ability to pay dividends, make distributions or
transfer assets;
- •
- make investments or
other restricted payments;
- •
- sell or otherwise
dispose of assets;
- •
- enter into
sale-leaseback transactions;
- •
- engage in
transactions with stockholders or affiliates;
- •
- issue or sell stock
of our subsidiary;
- •
- effect a
consolidation or merger;
- •
- whether the indenture
will require us to maintain any interest coverage, fixed charge,
cash flow-based, asset-based or other financial ratios;
- •
- a discussion of
certain material or special United States federal income tax
considerations applicable to the debt securities;
- •
- information
describing any book-entry features;
- •
- provisions for a
sinking fund purchase or other analogous fund, if any;
- •
- 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;
- •
- the denominations in
which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple thereof;
- •
- 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
- •
- 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:
- •
- 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;
- •
- 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;
- •
- 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:
- •
- the direction so
given by the holder is not in conflict with any law or the
applicable indenture; and
- •
- 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:
- •
- the holder has given
written notice to the trustee of a continuing event of default with
respect to that series;
- •
- 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
- •
- 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:
- •
- to fix any ambiguity,
defect or inconsistency in the indenture;
- •
- to comply with the
provisions described above under "Description of Our Debt
Securities—Consolidation, Merger or Sale;"
- •
- to comply with any
requirements of the SEC in connection with the qualification of any
indenture under the Trust Indenture Act;
- •
- 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;
- •
- 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 Securities—General," 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;
- •
- to evidence and
provide for the acceptance of appointment hereunder by a successor
trustee;
- •
- to provide for
uncertificated debt securities and to make all appropriate changes
for such purpose;
- •
- 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
- •
- 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:
- •
- extending the stated
maturity of the series of debt securities;
- •
- 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
- •
- 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:
- •
- register the transfer
or exchange of debt securities of the series;
- •
- replace stolen, lost
or mutilated debt securities of the series;
- •
- maintain paying
agencies;
- •
- hold monies for
payment in trust;
- •
- recover excess money
held by the trustee;
- •
- compensate and
indemnify the trustee; and
- •
- 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:
- •
- 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:
- •
- 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
27
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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.
28
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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
29
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Plug
Power Inc.

December 2, 2019
Table of
Contents
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of
Issuance and Distribution.
The following
table sets forth the estimated costs and expenses, other than
underwriting discounts and commissions, payable by the registrant
in connection with the offering of the securities being registered.
All the amounts shown are estimates, except for the SEC
registration fee.
|
|
|
|
|
SEC registration fee
|
|
$ |
|
(1) |
NASDAQ Capital Market listing fee
|
|
$ |
|
(2) |
Rating agency fee
|
|
$ |
|
(2) |
Accounting fees and expenses
|
|
$ |
|
(2) |
Legal fees and expenses
|
|
$ |
|
(2) |
Trustee/issuing and paying agent fees and
expenses
|
|
$ |
|
(2) |
Transfer agent fees and expenses
|
|
$ |
|
(2) |
Printing and miscellaneous expenses
|
|
$ |
|
(2) |
Total
|
|
$ |
|
(2) |
- (1)
- Deferred in
accordance with Rules 456(b) and 457(r).
- (2)
- The estimated amounts
of fees and expenses to be incurred in connection with any offering
of securities pursuant to this registration statement will be
determined from time to time and reflected in the applicable
prospectus.
Item 15. Indemnification of
Directors and Officers.
In accordance
with Section 145 of the Delaware General Corporation Law,
Article VII of our amended and restated certificate of
incorporation (as amended), or our certificate of incorporation,
provides that no director of Plug Power Inc., or Plug Power,
shall be personally liable to Plug Power or its stockholders for
monetary damages for breach of fiduciary duty as a director, except
for liability (1) for any breach of the director's duty of
loyalty to Plug Power or its stockholders, (2) for acts or
omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (3) in respect of unlawful
dividend payments or stock redemptions or repurchases, or
(4) for any transaction from which the director derived an
improper personal benefit. In addition, our certificate of
incorporation provides that if the Delaware General Corporation Law
is amended to authorize the further elimination or limitation of
the liability of directors, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so
amended.
Article V
of our by-laws provides for indemnification by Plug Power of its
directors, officers and certain non-officer employees under certain
circumstances against expenses, including reasonable attorneys'
fees, judgments, penalties, fines and amounts reasonably paid in
settlement that are incurred by such directors, officers or
non-officer employees or on such director's, officer's or
non-officer employee's behalf in connection with any threatened,
pending or completed legal proceeding or any claim, issue or matter
therein, which such director, officer or non-officer employee is,
or is threatened to be made, a party to or participant in by reason
of the fact that such person is or was a director, officer or
non-officer employee, if such director, officer or non-officer
employee acted in good faith and in a manner such director, officer
or non-officer employee reasonably believed to be in or not opposed
to the best interests of Plug Power and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her
conduct was unlawful.
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In addition, we
have entered into indemnification agreements with each of our
directors and executive officers. The indemnification agreements
require, among other matters, that we indemnify our directors and
executive officers to the fullest extent permitted by law and
advance to the directors and executive officers all related
expenses, subject to reimbursement if it is subsequently determined
that indemnification is not permitted. Under these agreements, we
must also indemnify and advance all expenses incurred by directors
and executive officers seeking to enforce their rights under the
indemnification agreements.
Item 16. Exhibits.
|
|
|
|
Exhibit
Number |
|
Description of the Document |
|
1.1 |
* |
Form of Underwriting
Agreement. |
|
|
|
|
|
4.1 |
|
Amended and Restated Certificate of Incorporation of
Plug Power Inc. (filed as Exhibit 3.1 to the registrant's
Annual Report on Form 10-K for the period ended
December 31, 2008 and incorporated by reference
herein). |
|
|
|
|
|
4.2 |
|
Certificate of Amendment to Amended and Restated
Certificate of Incorporation of Plug Power Inc. (filed as
Exhibit 3.3 to the registrant's Annual Report on
Form 10-K for the period ended December 31, 2008 and
incorporated by reference herein). |
|
|
|
|
|
4.3 |
|
Second Certificate of Amendment of Amended and
Restated Certificate of Incorporation of Plug Power Inc.
(filed as Exhibit 3.1 to the registrant's Current Report on
Form 8-K on May 19. 2011 and incorporated by reference
herein). |
|
|
|
|
|
4.4 |
|
Third Certificate of Amendment of Amended and
Restated Certificate of Incorporation of Plug Power Inc.
(filed as Exhibit 3.1 to the registrant's Current Report on
Form 8-K on July 25, 2014 and incorporated by reference
herein). |
|
|
|
|
|
4.5 |
|
Certificate of Correction to Third Certificate of Amendment of
Amended and Restated Certificate of Incorporation of Plug
Power Inc. (filed as Exhibit 3.9 to the registrant's
Annual Report on Form 10-K for the year ended
December 31, 2016 and incorporated by reference
herein). |
|
|
|
|
|
4.6 |
|
Fourth Certificate of Amendment of Amended and
Restated Certificate of Incorporation of Plug Power Inc.
(filed as Exhibit 3.1 to the registrant's Current Report on
Form 8-K on June 30, 2017 and incorporated by reference
herein). |
|
|
|
|
|
4.7 |
|
Third Amended and Restated By-laws of Plug
Power Inc. (filed as Exhibit 3.2 to the registrant's
Current Report on Form 8-K on November 2, 2009 and
incorporated by reference herein). |
|
|
|
|
|
4.8 |
|
Certificate of Designations, Preferences and Rights
of a Series of Preferred Stock of Plug Power Inc. classifying
and designating the Series A Junior Participating Cumulative
Preferred Stock. (filed as Exhibit 3.1 to the registrant's
Registration Statement on Form 8-A on June 24, 2009 and
incorporated by reference herein). |
|
|
|
|
|
4.9 |
|
Certificate of Designations, Preferences and Rights
of a Series of Preferred Stock of Plug Power Inc. classifying
and designating the Series C Redeemable Convertible Preferred
Stock (filed as Exhibit 3.1 to the registrant's Current Report
on Form 8-K on May 20, 2013 and incorporated by reference
herein). |
|
|
|
|
II-2
Table of
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|
|
|
|
Exhibit
Number |
|
Description of the Document |
|
4.10 |
|
Certificate of Designations, Preferences and Rights
of a Series of Preferred Stock of Plug Power Inc. classifying
and designating the Series E Convertible Preferred (filed as
Exhibit 3.1 to the registrant's Current Report on
Form 8-K on November 2, 2018 and incorporated by
reference herein). |
|
|
|
|
|
4.11 |
|
Form of Common Stock Certificate of Plug
Power Inc. (filed as Exhibit 4.1 to the registrant's
Registration Statement on Form S-1/A (File
Number 333-86089) on October 1, 1999 and incorporated by
reference herein). |
|
|
|
|
|
4.12 |
* |
Form of Preferred
Stock Certificate of Plug Power Inc. |
|
|
|
|
|
4.13 |
* |
Form of Certificate
of Designations, Preferences and Rights of a Series of Preferred
Stock of Plug Power Inc. |
|
|
|
|
|
4.14 |
* |
Form of Common Stock
Warrant Agreement and Warrant Certificate. |
|
|
|
|
|
4.15 |
* |
Form of Preferred
Stock Warrant Agreement and Warrant Certificate. |
|
|
|
|
|
4.16 |
|
Form of Indenture for Senior
Debt Securities. |
|
|
|
|
|
4.17 |
|
Form of Indenture for
Subordinated Debt Securities. |
|
|
|
|
|
4.18 |
* |
Form of Unit
Agreement and Unit Certificate. |
|
|
|
|
|
4.19 |
|
Securities Purchase Agreement, dated as of
May 8, 2013, between Plug Power Inc. and Air Liquide
Investissements d'Avenir et de Demonstration (filed as
Exhibit 10.1 to the registrant's Current Report on
Form 8-K on May 8, 2013 and incorporated by reference
herein). |
|
|
|
|
|
4.20 |
|
Registration Rights Agreement, dated as of
May 16, 2013, between Plug Power Inc. and Air Liquide
Investissements d'Avenir et de Demonstration. (filed as
Exhibit 10.1 to the registrant's Current Report on
Form 8-K on May 20, 2013 and incorporated by reference
herein). |
|
|
|
|
|
4.21 |
|
Warrant to Purchase Common Stock, issued
April 4, 2017, between Plug Power Inc. and
Amazon.com NV Investment Holdings LLC (filed as
Exhibit 4.1 to the registrant's Current Report on
Form 8-K on April 5, 2017 and incorporated by reference
herein). |
|
|
|
|
|
4.22 |
|
Transaction Agreement, dated as of April 4,
2017, between Plug Power Inc. and Amazon.com, Inc. (filed
as Exhibit 10.1 to the registrant's Current Report on
Form 8-K on April 5, 2017 and incorporated by reference
herein). |
|
|
|
|
|
4.23 |
|
Warrant to Purchase Common Stock, issued
July 20, 2017, between Plug Power Inc. and Wal-Mart
Stores, Inc. (filed as Exhibit 4.1 to the registrant's
Current Report on Form 8-K on July 21, 2017 and
incorporated by reference herein). |
|
|
|
|
|
4.24 |
|
Transaction Agreement, dated as of July 20,
2017, between Plug Power Inc. and Wal-Mart Stores, Inc.
(filed as Exhibit 10.1 to the registrant's Current Report on
Form 8-K on July 21, 2017 and incorporated by reference
herein). |
|
|
|
|
|
4.25 |
|
Indenture, dated as of March 27, 2018, between
Plug Power Inc., and Wilmington Trust, National Association,
as trustee (filed as Exhibit 4.1 to the registrant's Current
Report on Form 8-K on March 28, 2018 and incorporated by
reference herein). |
|
|
|
|
|
4.26 |
|
Form of Call Option Transaction Confirmation (filed
as Exhibit 10.1 to the registrant's Current Report on
Form 8-K on March 28, 2018 and incorporated by reference
herein). |
|
|
|
|
|
4.27 |
|
Forward Stock Purchase Transaction Confirmation,
dated as of March 22, 2018, between Plug Power Inc. and
Morgan Stanley & Co, LLC (filed as Exhibit 10.1
to the registrant's Current Report on Form 8-K on
March 28, 2018 and incorporated by reference
herein). |
II-3
Table of
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|
|
|
|
Exhibit
Number |
|
Description of the Document |
|
4.28 |
|
Securities Purchase Agreement, dated as of
November 1, 2018, by and among Plug Power Inc. and the
buyers listed on the Schedule of Buyers therein (filed as
Exhibit 10.1 to the registrant's Current Report on
Form 8-K on November 2, 2018 and incorporated by
reference herein). |
|
|
|
|
|
4.29 |
|
Registration Rights Agreement, dated
November 2, 2018, by and among Plug Power Inc. and the
buyers party thereto (filed as Exhibit 10.2 the registrant's
Current Report on Form 8-K on November 2, 2018 and
incorporated by reference herein). |
|
|
|
|
|
4.30 |
|
Form of Securities Purchase Agreement, dated as of
March 20, 2019, by and between Plug Power Inc., and the
purchaser party thereto (filed as Exhibit 10.1 to the
registrant's Current Report on Form 8-K on March 20, 2019
and incorporated by reference herein). |
|
|
|
|
|
4.31 |
|
Third Amended and Restated 2011 Stock Option and
Incentive Plan (filed as Exhibit 10.1 to the registrant's
Current Report on Form 8-K on May 15, 2019 and
incorporated by reference herein). |
|
|
|
|
|
4.32 |
|
Note Purchase Agreement, dated September 6,
2019, by and between the Company and HT Investments MA LLC
(filed as Exhibit 10.1 to the registrant's Current Report on
Form 8-K on September 9, 2019 and incorporated by
reference herein). |
|
|
|
|
|
4.33 |
|
$40,000,000 Senior Convertible Note due 2023 (filed
as Exhibit 10.2 to the registrant's Current Report on
Form 8-K on September 9, 2019 and incorporated by
reference herein). |
|
|
|
|
|
5.1 |
|
Opinion of Goodwin
Procter LLP. |
|
|
|
|
|
23.1 |
|
Consent of KPMG LLP,
independent registered public accounting firm. |
|
|
|
|
|
23.2 |
|
Consent of Goodwin
Procter LLP (included in Exhibit 5.1). |
|
|
|
|
|
24.1 |
|
Power of Attorney
(included on signature page). |
|
|
|
|
|
25.1 |
† |
Form T-1
Statement of Eligibility of Trustee for Senior Indenture under the
Trust Indenture Act of 1939. |
|
|
|
|
|
25.2 |
† |
Form T-1
Statement of Eligibility of Trustee for Subordinated Indenture
under the Trust Indenture Act of 1939. |
- *
- To be filed, if
necessary, subsequent to the effectiveness of this registration
statement by an amendment to this registration statement or
incorporated by reference pursuant to a Current Report on
Form 8-K in connection with an offering of securities.
- †
- To be filed pursuant
to Section 305(b)(2) of the Trust Indenture Act of
1939.
Item 17. Undertakings.
- (a)
- The undersigned
registrant hereby undertakes:
- (1)
- To file, during any
period in which offers or sales are being made, a post-effective
amendment to this registration statement:
- (i)
- To include any
prospectus required by Section 10(a)(3) of the Securities Act
of 1933, as amended, or the Securities Act;
- (ii)
- To reflect in the
prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
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forth in the
registration statement. Notwithstanding the foregoing, any increase
or decrease in the volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Securities and Exchange Commission, or
the Commission, pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
- (iii)
- To include any
material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material
change to such information in the registration
statement;
provided,
however, that paragraphs (a)(1)(i),
(1)(ii) and (1)(iii) of this section do not apply if the
information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished
to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934, as
amended, or the Exchange Act, that are incorporated by reference in
the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration
statement.
- (2)
- That, for the purpose
of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
- (3)
- To remove from
registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination
of the offering.
- (4)
- That, for the purpose
of determining liability under the Securities Act to any
purchaser:
- (i)
- Each prospectus filed
by the registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration
statement; and
- (ii)
- Each prospectus
required to be filed pursuant to Rule 424(b)(2), (b)(5), or
(b)(7) as part of a registration statement in reliance on
Rule 430B relating to an offering made pursuant to
Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the
Securities Act shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the
first contract of sale of securities in the offering described in
the prospectus. As provided in Rule 430B, for liability
purposes of the issuer and any person that is at that date an
underwriter, such date shall be deemed to be a new effective date
of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in
a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed
incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such effective
date, supersede or modify any statement that was made in the
registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
- (5)
- The undersigned
registrant hereby undertakes that, for the purpose of determining
liability of the registrant under the Securities Act to any
purchaser in the initial distribution of the
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securities, the
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
- (i)
- Any preliminary
prospectus or prospectus of the undersigned registrant relating to
the offering required to be filed pursuant to Rule 424;
- (ii)
- Any free writing
prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned
registrant;
- (iii)
- The portion of any
other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its
securities provided by or on behalf of the undersigned registrant;
and
- (iv)
- Any other
communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
- (b)
- The undersigned
registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's
annual report pursuant to Section 13(a) or 15(d) of the
Exchange Act (and, where applicable, each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the
Exchange Act) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of the
securities at that time shall be deemed to be the initial
bona fide offering
thereof.
- (c)
- The undersigned
registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act
in accordance with the rules and regulations prescribed by the
Commission under Section 305(b)(2) of the Act.
- (d)
- Insofar as
indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to existing provisions or arrangements
whereby the registrant may indemnify a director, officer or
controlling person of the registrant against liabilities arising
under the Securities Act, or otherwise, the registrant has been
advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
for the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
II-6
Table of
Contents
SIGNATURES
Pursuant to the
requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Latham, State of New York, on December 2, 2019.
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PLUG POWER INC. |
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By:
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/s/ ANDREW MARSH
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Name: |
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Andrew Marsh |
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Title: |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears
below hereby severally constitutes and appoints Andrew Marsh, Paul
B. Middleton and Gerard L. Conway, Jr., and each of them, as his
true and lawful attorneys in fact and agents, with full power of
substitution and resubstitution, for him and in his name, place,
and stead, in any and all capacities, to sign any and all
amendments (including post effective amendments, exhibits thereto
and other documents in connection therewith) to this registration
statement and any subsequent registration statement filed by the
registrant pursuant to Rule 462(b) of the Securities Act of
1933, as amended, which relates to this registration statement, and
to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys in fact and agents, and each of them,
full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys in
fact and agents, or any of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the
requirements of the Securities Act of 1933, as amended, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
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/s/ ANDREW MARSH
Andrew Marsh |
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President, Chief Executive Officer and Director (Principal
Executive Officer) |
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December 2, 2019 |
/s/ PAUL B. MIDDLETON
Paul B. Middleton |
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Chief Financial Officer (Principal Financial
Officer) |
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December 2, 2019 |
/s/ MARTIN D. HULL
Martin D. Hull |
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Corporate Controller and Chief Accounting Officer
(Principal Accounting Officer) |
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December 2, 2019 |
/s/ MAUREEN O. HELMER
Maureen O. Helmer |
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Director |
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December 2, 2019 |
II-7
Table of
Contents
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/s/ GREGORY L. KENAUSIS
Gregory L. Kenausis |
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Director |
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December 2, 2019 |
/s/ GEORGE C. MCNAMEE
George C. McNamee |
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Director |
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December 2, 2019 |
/s/ JOHANNES MINHO ROTH
Johannes Minho Roth |
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Director |
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December 2, 2019 |
/s/ LUCAS P. SCHNEIDER
Lucas P. Schneider |
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Director |
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December 2, 2019 |
/s/ JONATHAN SILVER
Jonathan Silver |
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Director |
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December 2, 2019 |
/s/ GARY K. WILLIS
Gary K. Willis |
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Director |
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December 2, 2019 |
II-8
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