ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed
with the Securities and Exchange Commission, or the SEC, utilizing a shelf
registration process. Under this shelf registration process, we may offer
shares of our common stock and preferred stock, various series of warrants to
purchase common stock or preferred stock, either individually or in units, in
one or more offerings, up to a total dollar amount of $100,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we offer a type or series of securities under this prospectus,
we will provide a prospectus supplement that will contain more specific
information about the specific terms of the offering. We may also authorize one
or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. Each such prospectus
supplement (and any related free writing prospectus that we may authorize to be
provided to you) may also add, update or change information contained in this
prospectus or in documents incorporated by reference into this prospectus. We
urge you to carefully read this prospectus, any applicable prospectus
supplement and any related free writing prospectus, together with the
information incorporated herein by reference as described under the headings
Where You Can Find Additional Information and Incorporation of Certain
Information by Reference before buying any of the securities being offered.
This
prospectus may not be used to offer or sell securities unless it is accompanied
by a prospectus supplement.
You
should rely only on the information contained or incorporated by reference in
this prospectus, any applicable prospectus supplement and any related free
writing prospectus. We have not authorized anyone to provide you with different
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 assume that the information in this prospectus, any
applicable prospectus supplement or any related free writing prospectus is
accurate only as of the date on the front of the document and that any
information incorporated by reference is accurate only as of the date of the
document incorporated by reference, regardless of the time of delivery of this
prospectus, any applicable prospectus supplement or any related free writing
prospectus, or any sale of a security.
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.
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SUMM
ARY
This
summary highlights selected information from this prospectus or incorporated by
reference in this prospectus, and does not contain all of the information that
you need to consider in making your investment decision. You should carefully
read the entire prospectus, the applicable prospectus supplement and any
related free writing prospectus, including the risks of investing in our
securities referred to under the heading Risk Factors in this prospectus and
contained in the applicable prospectus supplement and any related free writing
prospectus, and in the other documents that are incorporated by reference into
this prospectus. You should also carefully read the information incorporated by
reference into this prospectus, including our financial statements, and the
exhibits to the registration statement of which this prospectus is a part.
Unless otherwise mentioned or unless the context requires
otherwise, throughout this prospectus, any applicable prospectus supplement and
any related free writing prospectus, the words Plug Power, we, us, our,
the company or similar references refer to Plug Power Inc. and its
subsidiaries; and the term securities refers collectively to our common
stock, preferred stock or warrants to purchase common stock or preferred stock,
or any combination of the foregoing securities.
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.
Our Company
We are a leading
provider of alternative energy technology focused on the design, development,
commercialization and manufacture of fuel cell systems for the industrial
off-road (forklift or material handling) market. We have also developed
products for the back-up and stationary power markets worldwide. Effective
April 1, 2010, we were no longer considered a development stage enterprise
since our principal operations began to provide more than insignificant
revenues as we received orders from repeat customers, increased our customer
base and had a significant backlog. Prior to April 1, 2010, we were considered
a development stage enterprise because substantially all of our resources and
efforts were aimed at the discovery of new knowledge that could lead to
significant improvement in fuel cell reliability and durability, and the
establishment, expansion and stability of markets for our products.
We are focused on
proton exchange membrane, or PEM, fuel cell and fuel processing technologies
and fuel cell/battery hybrid technologies, 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 (LPG), natural gas,
propane, methanol, ethanol, gasoline or biofuels. Hydrogen can also be obtained
from the electrolysis of water. Hydrogen can be purchased directly from industrial
gas providers or can be produced on-site at consumer locations.
We concentrate our
efforts on developing, manufacturing and selling our hydrogen-fueled PEM
GenDrive® products on commercial terms for industrial off-road (forklift or
material handling) applications, with a focus on multi-shift high volume
manufacturing and high throughput distribution sites.
We have previously
invested in development and sales activities for low-temperature remote-prime
power GenSys® products and our GenCore® product, which is a hydrogen fueled PEM
fuel cell system to provide back-up power for critical infrastructure. While we
will continue to service and support GenSys and/or GenCore products on a
limited basis, our main focus is our Gendrive product line.
We sell our products
worldwide, with a primary focus on North America, through our direct product
sales force, original equipment manufacturers (OEMs) and their dealer networks.
We sell to business, industrial and government customers.
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We were organized
in the State of Delaware on June 27, 1997. We were originally a joint venture
between Edison Development Corporation and Mechanical Technology Incorporated.
In 2007, we acquired all the issued and outstanding equity of Cellex Power
Products, Inc. (Cellex) and General Hydrogen Corporation (General Hydrogen).
Through these acquisitions, and our continued GenDrive product development
efforts, we became the first fuel cell company to offer a complete suite of
Class 1 - sit-down counterbalance trucks, Class 2 stand-up reach trucks and
Class 3 rider pallet trucks products. 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.
Our current and future annual reports on Form 10-K, future quarterly reports on
Form 10-Q, current reports on Form 8-K and other filings with the SEC are
available, free of charge, through our website as soon as reasonably
practicable after we electronically file such materials with, or furnish them
to, the SEC. Our SEC filings can be accessed through the investor relations
section of our website. The information contained on, or accessible through,
our website is not intended to be part of this or any other report we file
with, or furnish to, the SEC. Our common stock trades on the NASDAQ Capital
Market under the symbol PLUG.
The Securities We May Offer
We may
offer shares of our common stock and preferred stock, various series of
warrants to purchase common stock or preferred stock, either individually or in
units, with a total value of up to $100,000,000 from time to time under this
prospectus at prices and on terms to be determined at the time of any offering.
This prospectus provides you with a general description of the securities we
may offer. Each time we offer a type or series of securities under this
prospectus, we will provide a prospectus supplement that will describe the
specific amounts, prices and other important terms of the securities.
The
prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference.
However, no prospectus supplement or free writing prospectus will offer a
security that is not registered and described in this prospectus at the time of
the effectiveness of the registration statement of which this prospectus is a
part.
This
prospectus may not be used to offer or sell securities unless it is accompanied
by a prospectus supplement.
We may sell the securities directly to investors or to
or through agents, underwriters or dealers. We, and our agents or underwriters,
reserve the right to accept or reject all or part of any proposed purchase of
securities. If we do offer securities to or through agents or underwriters, we
will include in the applicable prospectus supplement:
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the names of those agents or underwriters;
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applicable fees, discounts and commissions
to be paid to them;
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details regarding over-allotment options,
if any; and
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the net proceeds to us.
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Common
Stock.
We may issue shares of our
common stock from time to time. Holders of shares of our common stock are
entitled to one vote for each share held of record on all matters to be voted
on by stockholders and do not have cumulative voting rights. Subject to the
preferences that may be applicable to any then outstanding preferred stock, the
holders of our outstanding shares of common stock are entitled to receive
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 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.
Preferred
Stock.
We may issue shares of our
preferred stock from time to time, in one or more series. Our board of
directors will determine the rights, preferences and privileges of the shares
of each wholly unissued series, and any qualifications, limitations or
restrictions thereon, including dividend rights, conversion rights, preemptive
rights, terms of redemption or repurchase, liquidation preferences, sinking
fund terms and the number of shares constituting any series or the designation
of any series. Convertible preferred stock will be convertible into our common
stock or exchangeable for other securities. Conversion may be mandatory or at
your option and would be at prescribed conversion rates.
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If we
sell any series of preferred stock under this prospectus, we will fix the
rights, preferences and privileges of the preferred stock of such series, as
well as any qualifications, limitations or restrictions thereon, in the
certificate of designation relating to that series. We will file as an exhibit
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
any certificate of designation that describes the terms of the series of
preferred stock we are offering before the issuance of that series of preferred
stock. We urge you to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you) related to the
series of preferred stock being offered, as well as the complete certificate of
designation that contains the terms of the applicable series of preferred
stock.
Warrants.
We may issue warrants for the
purchase of common stock and/or preferred stock in one or more series. We may
issue warrants independently or together with common stock and/or preferred
stock, and the warrants may be attached to or separate from these securities.
In this prospectus, we have summarized certain general features of the
warrants. We urge you, however, to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be provided to you)
related to the particular series of warrants being offered, as well as the
complete warrant agreements and warrant certificates that contain the terms of
the warrants. Forms of the warrant agreements and forms of warrant certificates
containing the terms of the warrants 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.
We
will evidence each series of warrants by warrant certificates that we will
issue. Warrants may be issued under an applicable warrant agreement that we
enter into with a warrant agent. We will indicate the name and address of the
warrant agent, if applicable, in the prospectus supplement relating to the
particular series of warrants being offered.
Units.
We may issue, in one or more series,
units consisting of common stock, preferred stock, and/or warrants for the
purchase of common stock and/or preferred stock in any combination. In this
prospectus, we have summarized certain general features of the units. We urge
you, however, to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you) related to the
series of units being offered, as well as the complete unit agreement that
contains the terms of the units. 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 and any
supplemental agreements that describe the terms of the series of units we are
offering before the issuance of the related series of units.
We will
evidence each series of units by unit certificates that we will issue. Units
may be issued under a unit agreement that we enter into with a unit agent. We
will indicate the name and address of the unit agent, if applicable, in the
prospectus supplement relating to the particular series of units being offered.
RISK FACTORS
Investing
in our securities involves a high degree of risk. Before purchasing our
securities, you should carefully consider the risks and uncertainties set forth
under the heading Risk Factors in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2010, filed with the SEC on March 31, 2011,
which is incorporated by reference in this prospectus, as well as any updates
thereto contained in subsequent filings with the SEC or any applicable
prospectus supplement or free writing prospectus. If any of these risks were to
occur, our business, financial condition or results of operations would likely
suffer. In that event, the value of our securities could decline, and you could
lose all or part of your investment. The risks and uncertainties we describe
are not the only ones facing us. Additional risks not presently known to us or
that we currently deem immaterial may also impair our business operations.
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 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. In some cases you can identify these
statements by forward-looking words such as anticipate, believe, could,
continue, estimate, expect, intend, may, should, will, would,
plan, projected or the negative of such words or other similar words or
phrases. We believe that it is important to communicate our future expectations
to our investors. However, there may be events in the future that we are not
able to accurately predict or control and that may cause our actual results to
differ materially from the expectations we describe in our forward-looking
statements. Investors are cautioned not to unduly rely on forward-looking statements
because they involve risks and uncertainties, and actual results may differ
materially from those discussed as a result of various factors, including, but
not limited to: the risk that we continue to incur losses and might never
achieve or maintain profitability, the risk that the additional capital we
expect we will need to raise to fund our operations beyond the first quarter of
2012 may not be available; 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 will not ship, be installed and/or converted to revenue, in whole or in
part; the risk that pending orders may not convert to purchase orders, in whole
or in part; the risk that our continued failure to comply with NASDAQs listing
standards may severely limit our ability to raise additional capital; the cost
and timing of developing, marketing and selling our products and our ability to
raise the necessary capital to fund such costs; the ability to achieve the
forecasted gross margin on the sale of our products; the actual net cash used
for operating expenses may exceed the projected net cash for operating
expenses; the cost and availability of fuel and fueling infrastructures for our
products; market acceptance of our GenDrive 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; our ability to develop commercially viable products; our ability to
reduce product and manufacturing costs; our ability to successfully expand our
product lines; our ability to improve system reliability for our GenDrive
systems; competitive factors, such as price competition and competition from
other traditional and alternative energy companies; our ability to protect our
intellectual property; the cost of complying with current and future federal,
state and international governmental regulations; and other risks and
uncertainties referenced under Risk Factors above and in any applicable
prospectus supplement or free writing prospectus and any documents incorporated
by reference herein or therein. Readers should not place undue reliance on our
forward-looking statements. These forward-looking statements speak only as of
the date on which the statements were made and are not guarantees of future
performance. Except as may be required by applicable law, we do not undertake
or intend to update any forward-looking statements after the date of this
prospectus or the respective dates of documents incorporated herein or therein
that include forward-looking statements.
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RATIO OF COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS TO EARNINGS
Our
ratio of combined fixed charges and preference dividends to earnings for each
of the five most recently completed fiscal years and any required interim
periods will each be specified in a prospectus supplement or in a document that
we file with the SEC and incorporate by reference pertaining to the issuance,
if any, by us of preference securities in the future.
USE OF PROCEEDS
Except
as described in any prospectus supplement or in any related free writing
prospectus that we may authorize to be provided to you, the net proceeds
received by us from our sale of the securities described in this prospectus
will be added to our general funds and will be used for our general corporate purposes.
From time to time, we may engage in additional public or private financings of
a character and amount which we may deem appropriate.
PLAN OF DISTRIBUTION
We may
sell the securities from time to time pursuant to underwritten public
offerings, negotiated transactions, block trades or a combination of these
methods. We may sell the securities to or through underwriters or dealers,
through agents, or directly to one or more purchasers. We may distribute
securities from time to time in one or more transactions:
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at a fixed price or prices, which may be
changed;
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at market prices prevailing at the time of
sale;
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at prices related to such prevailing market
prices; or
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Each
time we offer and sell securities, we will provide a prospectus supplement that
will set forth the terms of the offering of the securities, including:
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the name or names of the underwriters, if
any;
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the purchase price of the securities and
the proceeds we will receive from the sale;
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any over-allotment options under which
underwriters may purchase additional securities;
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any agency fees or underwriting discounts
and other items constituting agents or underwriters compensation;
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any public offering price;
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any discounts or concessions allowed or
reallowed or paid to dealers; and
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any securities exchange or market on which
the securities may be listed.
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If
underwriters are used in the sale, they will acquire the securities for their
own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to the conditions set forth in the applicable
underwriting agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Subject to certain conditions, the underwriters will be
obligated to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any over-allotment option. Any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may change from time to time. We may use underwriters with whom
we or they have a material relationship. The prospectus supplement, naming the
underwriter, will describe the nature of any such relationship.
We may
sell securities directly or through agents we or they designate from time to
time. The prospectus supplement will name any agent involved in the offering
and sale of securities and any commissions we will pay to them. Unless the
prospectus supplement states otherwise, any agent will be acting on a
best-efforts basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain purchasers to
purchase securities from us or them at the public offering price set forth in
the prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. The prospectus
supplement will set forth the conditions to these contracts and any commissions
we must pay for solicitation of these contracts.
We may
provide agents and underwriters with indemnification against civil liabilities,
including liabilities under the Securities Act, or contribution with respect to
payments that the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions with, or
perform services for, us in the ordinary course of business.
All
securities we may offer, other than common stock, will be new issues of
securities with no established trading market. Any underwriters may make a
market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any
underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Over-allotment involves sales in
excess of the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum price. Syndicate-covering or other
short-covering transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after the
distribution is completed, to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a stabilizing or covering
transaction to cover short positions. Those activities may cause the price of
the securities to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of the activities at any time.
Any
underwriters that are qualified market makers on the NASDAQ Capital Market may
engage in passive market making transactions in the common stock on the NASDAQ
Capital Market in accordance with Regulation M under the Exchange Act,
during the business day prior to the pricing of the offering, before the
commencement of offers or sales of the common stock. Passive market makers must
comply with applicable volume and price limitations and must be identified as
passive market makers. In general, a passive market maker must display its bid
at a price not in excess of the highest independent bid for such security; if
all independent bids are lowered below the passive market makers bid, however,
the passive market makers bid must then be lowered when certain purchase
limits are exceeded. Passive market making may stabilize the market price of
the securities at a level above that which might otherwise prevail in the open
market and, if commenced, may be discontinued at any time.
In
compliance with guidelines of the Financial Industry Regulatory Authority, or
FINRA, the maximum consideration or discount to be received by any FINRA member
or independent broker dealer may not exceed 8% of the aggregate amount of the
securities offered pursuant to this prospectus and any applicable prospectus
supplement.
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DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 245,000,000
shares of common stock, $0.01 par value per share, and 5,000,000 shares of
preferred stock, $0.01 par value per share. As of March 31, 2011, there were
132,784,673 shares of our common stock outstanding and no shares of preferred
stock outstanding.
The
following summary description of our capital stock is based on the provisions
of our amended and restated certificate of incorporation and amended and
restated bylaws and the applicable provisions of the Delaware General
Corporation Law. This information is qualified entirely by reference to the
applicable provisions of our amended and restated certificate of incorporation,
amended and restated bylaws and the Delaware General Corporation Law. For
information on how to obtain copies of our amended and restated certificate of
incorporation and amended and restated bylaws, which are exhibits to the
registration statement of which this prospectus is a part, see Where You Can
Find Additional Information and Incorporation of Certain Information by
Reference.
Common Stock
Holders
of shares of our common stock are entitled to one vote for each share held of
record on all matters to be voted on by stockholders, including the election of
directors. Our amended and restated certificate of incorporation and amended
and restated bylaws do not provide for cumulative voting rights. Because of
this, the holders of a majority of our common stock entitled to vote in any
election of directors can elect all of the directors standing for election.
Subject to the preferences that may be applicable to any then outstanding
preferred stock, the holders of our outstanding shares of common stock are
entitled to receive 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 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. 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
shares of any series of our preferred stock that we may designate and issue in
the future.
Preferred Stock
Pursuant
to our amended and restated certificate of incorporation, our board of
directors has the authority, without further action by the stockholders (unless
such stockholder action is required by applicable law or NASDAQ rules), to
designate and issue up to 5,000,000 shares of preferred stock in one or more
series, to establish from time to time the number of shares to be included in
each such series, to fix the rights, preferences and privileges of the shares
of each wholly unissued series, and any qualifications, limitations or
restrictions thereon, and to increase or decrease the number of shares of any
such series, but not below the number of shares of such series then
outstanding.
We
will fix the rights, preferences and privileges of the preferred stock of each
such series, as well as any qualifications, limitations or restrictions
thereon, in the certificate of designation relating to that series. We will
file as an exhibit 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 any certificate of designation that describes the terms of the
series of preferred stock we are offering before the issuance of that series of
preferred stock. This description will include:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the dividend rate, period and payment date
and method of calculation for dividends;
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whether dividends will be cumulative or
non-cumulative and, if cumulative, the date from which dividends will
accumulate;
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the procedures for any auction and
remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or
repurchase, if applicable, and any restrictions on our ability to exercise
those redemption and repurchase rights;
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any listing of the preferred stock on any
securities exchange or market;
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whether the preferred stock will be
convertible into our common stock, and, if applicable, the conversion price,
or how it will be calculated, and the conversion period;
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whether the preferred stock will be
exchangeable into debt securities, and, if applicable, the exchange price, or
how it will be calculated, and the exchange period;
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voting rights, if any, of the preferred
stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other
assignment, if any;
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whether interests in the preferred stock
will be represented by depositary shares;
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a discussion of any material United States
federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the
preferred stock as to dividend rights and rights if we liquidate, dissolve or
wind up our affairs;
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any limitations on the issuance of any
class or series of preferred stock ranking senior to or on a parity with the
series of preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
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any other specific terms, preferences,
rights or limitations of, or restrictions on, the preferred stock.
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The
General Corporation Law of the State of Delaware, the state of our
incorporation, 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 amended and restated 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.
8
Delaware Anti-Takeover Law and Provisions of our
Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws
Delaware Anti-Takeover Law
. We are subject to Section 203 of the Delaware
General Corporation Law. Section 203 generally prohibits a public Delaware
corporation from engaging in a business combination with an interested
stockholder for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
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prior to the date of the transaction, the
board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder;
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the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding (a) shares owned by persons who are directors and
also officers and (b) shares owned by employee stock plans in which
employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer; or
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on or subsequent to the date of the
transaction, the business combination is approved by the board and authorized
at an annual or special meeting of stockholders, and not by written consent,
by the affirmative vote of at least 66- 2/3% of the outstanding voting stock
which is not owned by the interested stockholder.
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Section 203
defines a business combination to include:
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any merger or consolidation involving the corporation
and the interested stockholder;
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any sale, transfer, pledge or other
disposition involving the interested stockholder of 10% or more of the assets
of the corporation;
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subject to exceptions, any transaction that
results in the issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder; and
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the receipt by the interested stockholder
of the benefit of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation.
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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.
Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws
. Provisions of our amended and restated certificate
of incorporation and amended and restated 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 amended
and restated certificate of incorporation and amended and restated bylaws:
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permit our board of directors to issue up to
5,000,000 shares of preferred stock, with any rights, preferences and
privileges as they may designate;
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provide that the authorized number of
directors may be changed only by resolution of the board of directors;
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provide that all vacancies, including newly
created directorships, may, except as otherwise required by law and subject
to the rights of the holders of any series of preferred stock, be filled by
the affirmative vote of a majority of directors then in office, even if less
than a quorum;
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divide our board of directors into three
classes;
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require that any action to be taken by our
stockholders must be effected at a duly called annual or special meeting of
stockholders and not be taken by written consent;
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provide that stockholders seeking to
present proposals before a meeting of stockholders or to nominate candidates
for election as directors at a meeting of stockholders must provide notice in
writing in a timely manner, and also specify requirements as to the form and
content of a stockholders notice;
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do not provide for cumulative voting rights
(therefore allowing the holders of a majority of the shares of common stock
entitled to vote in any election of directors to elect all of the directors
standing for election, if they should so choose); and
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provide that special meetings of our
stockholders may be called only by the chairman of the board, our chief
executive officer, our president or by the board of directors pursuant to a
resolution adopted by a majority of the total number of authorized directors.
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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 66- 2/3% of our then outstanding common stock.
Shareholder Rights Plan
On June 22, 2009, we adopted a shareholder rights plan, the
purpose of which is, among other things, to enhance our Boards ability to
protect stockholder interests and to ensure that stockholders receive fair
treatment in the event any coercive takeover attempt of the company is made in
the future. The shareholder rights plan could make it more difficult for a
third party to acquire, or could discourage a third party from acquiring, the
company or a large block of our common stock. The following summarizes material
terms of the shareholder rights plan and the associated preferred share
purchase rights. This description is subject to the detailed provisions of,
and is qualified by reference to, the shareholder rights agreement which has
been filed as an exhibit to our Registration Statement on Form 8-A dated June
24, 2009, as previously filed with the Commission.
Each
outstanding share of our common stock evidences one preferred share purchase
right. Under the terms of the shareholder rights agreement, each preferred
share purchase right entitles the registered holder to purchase from us one
ten-thousandth of a share (each, a unit) of our Series A Junior Participating
Cumulative Preferred Stock, par value $0.01 per share, at a cash exercise price
of $6.50 per unit, subject to adjustment. Initially, the preferred
share purchase rights are not exercisable and are attached to and trade
with all shares of common stock. The preferred share
purchase rights will separate from the common stock and will become
exercisable upon the earlier of:
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the close of
business on the tenth calendar day following the first public announcement
that a person or group of affiliated or associated persons has acquired
beneficial ownership of 15% or more of the outstanding shares of common
stock, other than as a result of repurchases of stock by the company or
certain inadvertent actions by a stockholder, or
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the close of
business on the tenth business day (or such later day as the Board of
Directors may determine) following the commencement of a tender offer or
exchange offer that could result upon its consummation in a person or group
becoming the beneficial owner of 15% or more of the outstanding shares of
common stock.
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With respect to any
person who beneficially owned 15% or more of the outstanding shares of common
stock as of June 23, 2009, such person's share ownership will not cause the preferred share purchase rights to be exercisable
unless:
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such person
acquires beneficial ownership of shares of common stock representing more
than an additional 0.5% of the outstanding shares of common stock held by
such person as of June 23, 2009; or
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if after June 23,
2009 such person reduces its beneficial ownership of shares of common stock
and such person subsequently acquires beneficial ownership of more than an
additional 0.5% of the common stock.
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In the event that a
person or group of affiliated or associated persons has acquired beneficial
ownership of 15% or more of the outstanding shares of common stock, proper
provision will be made so that each holder of a preferred
share purchase right (other than an acquiring person or its associates
or affiliates, whose preferred share purchase rights
shall become null and void) will thereafter have the right to receive (a
subscription right) upon exercise, in lieu of a number of units, that number
of shares of common stock of the company (or, in certain circumstances,
including if there are insufficient shares of common stock to permit the
exercise in full of the preferred share purchase
rights, units of preferred stock, other securities, cash or property, or
any combination of the foregoing) having a market value of two times the
exercise price of the preferred share purchase rights.
In the event that, at
any time following the dated that a person or group of affiliated or associated
persons has acquired beneficial ownership of 15% or more of the outstanding
shares of common stock:
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we consolidate
with, or merge with and into, any other person, and we are not the continuing
or surviving corporation,
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any person
consolidates with the company, or merges with and into the company and we are
the continuing or surviving corporation of such merger and, in connection
with such merger, all or part of the shares of common stock are changed into
or exchanged for stock or other securities of any other person or cash or any
other property, or
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50% or more of our
assets or earning power is sold, mortgaged or otherwise transferred, each
holder of a preferred share purchase right
(other than an acquiring person or its associates or affiliates, whose preferred share purchase rights shall become null
and void) will thereafter have the right to receive (a merger right), upon
exercise, common stock of the acquiring company having a market value equal
to two times the exercise price of the preferred
share purchase rights. The holder of a preferred
share purchase right will continue to have this merger right whether
or not such holder has exercised its subscription right. Preferred share purchase rights that are or were
beneficially owned by an acquiring person may (under certain circumstances
specified in the shareholder rights agreement) become null and void.
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The preferred share purchase rights may be redeemed in
whole, but not in part, at a price of $0.001 per preferred
share purchase right (payable in cash, common stock or other consideration
deemed appropriate by the Board of Directors) by the Board of Directors only
until the earlier of:
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the time at which
any person becomes an acquiring person; or
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the expiration date
of the shareholder rights agreement.
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Immediately upon the
action of the Board of Directors ordering redemption of the preferred share purchase rights, the preferred share purchase rights will terminate and
thereafter the only right of the holders of preferred
share purchase rights will be to receive the redemption price.
The shareholder rights agreement requires an independent
committee of the Board of Directors to review at least once every three years
whether maintaining the shareholder rights agreement continues
to be in the best interests of our stockholders.
The shareholder rights agreement may be amended by the
Board of Directors in its sole discretion at any time prior to the time at
which any person becomes an acquiring person. After such time the Board of
Directors may, subject to certain limitations set forth in the shareholder rights agreement, amend the shareholder rights agreement only to cure any
ambiguity, defect or inconsistency, to shorten or lengthen any time period, or
to make changes that do not adversely affect the interests of preferred share purchase rights holders (excluding
the interests of an acquiring person or its associates or affiliates). In
addition, the Board of Directors may at any time prior to the time at which any
person becomes an acquiring person, amend the shareholder
rights agreement to lower the threshold at which a person becomes an
acquiring person to not less than the greater of:
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the sum of 0.001%
and the largest percentage of the outstanding common stock then owned by any
person, and
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10%.
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Until a preferred share purchase right is exercised, the
holder will have no rights as a stockholder of the company (beyond those as an
existing stockholder), including the right to vote or to receive dividends.
While the distribution of the preferred share
purchase rights will not be taxable to stockholders or to the company,
stockholders may, depending upon the circumstances, recognize taxable income in
the event that the preferred share purchase rights
become exercisable for units, other securities of the company, other
consideration or for common stock of an acquiring company.
The preferred share purchase rights will expire at the
close of business on June 23, 2019, unless previously redeemed or exchanged by
the company.
Transfer Agent and
Registrar
The
transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company, LLC. The transfer agent and registrars
address is 59 Maiden Lane, New York, New York 10038. The transfer agent and
registrar for any series of preferred stock that we may offer under this
prospectus will be named and described in the prospectus supplement for that
series.
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DESCRIPTION OF
WARRANTS
We may
issue warrants for the purchase of common stock and/or preferred stock in one
or more series. We may issue warrants independently or together with common
stock and/or preferred stock, and the warrants may be attached to or separate
from these securities. While the terms summarized below will apply generally to
any warrants that we may offer, we will describe the particular terms of any
series of warrants in more detail in the applicable prospectus supplement. The
terms of any warrants offered under a prospectus supplement may differ from the
terms described 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 warrant agreement, including a
form of warrant certificate, that describes the terms of the particular series
of warrants we are offering before the issuance of the related series of
warrants. The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their entirety by
reference to, all the provisions of the warrant agreement and warrant
certificate applicable to the particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we may offer
under this prospectus, as well as any related free writing prospectuses, and
the complete warrant agreements and warrant certificates that contain the terms
of the warrants.
General
We
will describe in the applicable prospectus supplement the terms of the series
of warrants being offered, including:
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the offering price and aggregate number of
warrants offered;
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the currency for which the warrants may be
purchased;
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if applicable, the designation and terms of
the securities with which the warrants are issued and the number of warrants
issued with each such security or each principal amount of such security;
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if applicable, the date on and after which
the warrants and the related securities will be separately transferable;
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the number of shares of common stock or
preferred stock, as the case may be, purchasable upon the exercise of one
warrant and the price at which these shares may be purchased upon such
exercise;
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the effect of any merger, consolidation,
sale or other disposition of our business on the warrant agreements and the
warrants;
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the terms of any rights to redeem or call
the warrants;
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any provisions for changes to or
adjustments in the exercise price or number of securities issuable upon
exercise of the warrants;
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the dates on which the right to exercise
the warrants will commence and expire;
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the manner in which the warrant agreements
and warrants may be modified;
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the terms of the securities issuable upon
exercise of the warrants; and
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any other specific terms, preferences,
rights or limitations of or restrictions on the warrants.
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Before
exercising 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
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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.
DESCRIPTION OF UNITS
We may
issue, in one more series, units consisting of common stock, preferred stock,
and/or warrants for the purchase of common stock and/or preferred stock in any
combination. While the terms we have summarized below will apply generally to
any units that we may offer under this prospectus, we will describe the
particular terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a prospectus
supplement may differ from the terms described 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 the
applicable prospectus supplements related to the particular series of units
that we may offer under this prospectus, as well as any related free writing
prospectuses and the complete unit agreement and any supplemental agreements
that contain the terms of the units.
General
Each
unit 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.
We
will describe in the applicable prospectus supplement the terms of the series
of units being offered, including:
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the designation and terms of the units and
of the securities comprising the units, including whether and under what
circumstances those securities may be held or transferred separately;
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any provisions of the governing unit
agreement that differ from those described below in this section; and
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any provisions for the issuance, payment,
settlement, transfer or exchange of the units or of the securities comprising
the units.
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The
provisions described in this section, as well as those described under
Description of Capital Stock and Description of Warrants will apply to each
unit and to any common stock, preferred stock or warrant included in each
unit, respectively.
Issuance in Series
We may
issue units in such amounts and in such numerous distinct series as we
determine.
Enforceability of
Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and
will not assume any obligation or relationship of agency or trust with any
holder of any unit. A single bank or trust company may act as unit agent for
more than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by
appropriate legal action its rights as holder under any security included in
the unit.
Title
We,
and any unit agent and any of their agents, may treat the registered holder of
any unit certificate as an absolute owner of the units evidenced by that
certificate for any purpose and as the person entitled to exercise the rights
attaching to the units so requested, despite any notice to the contrary.
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,
2010 and 2009, and for each of the years in the three-year period ended
December 31, 2010, and managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2010 have been incorporated
by reference herein and in the Registration Statement in reliance upon the
reports of KPMG LLP, independent registered public accounting firm, incorporated
by reference herein, and upon authority of said firm as experts in accounting
and auditing.
The audit report
covering the December 31, 2010 consolidated financial statements refers to a
change in the method of accounting for revenue arrangements with
multiple-deliverables entered into or substantially modified after January 1,
2010.
WHERE YOU CAN FIND
ADDITIONAL INFORMATION
This
prospectus is part of a registration statement that we have filed with the SEC.
Certain information in the registration statement has been omitted from this
prospectus in accordance with the rules of the SEC. We are a public
company and file proxy statements, annual, quarterly and special reports and
other information with the SEC. The registration statement, such reports and
other information can be inspected and copied at the Public Reference
Room of the SEC located at 100 F Street, N.E., Washington D.C. 20549.
Copies of such materials, including copies of all or any portion of the
registration statement, can be obtained from the Public Reference Room of
the SEC at prescribed rates. You can call the SEC at 1-800-SEC-0330 to obtain
information on the operation of the Public Reference Room. Such materials may
also be accessed electronically by means of the SECs home page on the
Internet
(www.sec.gov)
.
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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:
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our Annual Report on Form 10-K for the
year ended December 31, 2010, filed on March 31, 2011;
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our Current Report on Form 8-K filed
on February 2, 2011; and
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the section entitled
Description of Registrants Securities to be Registered contained in our
Registration Statement on Form 8-A, filed pursuant to Section 12(b) of the
Exchange Act on June 24, 2009.
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We also incorporate by reference into this prospectus
all documents (other than current reports furnished under Item 2.02 or
Item 7.01 of Form 8-K and exhibits filed on such form that are related to
such items) that are filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial
filing of the registration statement of which this prospectus is a part and
prior to effectiveness of the registration statement, or (ii) after the
date of this prospectus until we sell all of the shares covered by this prospectus
or the sale of shares by us pursuant to this prospectus is terminated.
You
may access our Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q, Current Reports on Form 8-K and amendments to any of these
reports, free of charge on the SECs website. You may also access the documents
incorporated by reference on our website at
www.plugpower.com
. Other
than the foregoing documents incorporated by reference, the information
contained in, or that can be accessed through, our website is not part of this
prospectus.
In
addition, 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). Such requests may be directed to Corporate Secretary, Plug
Power Inc., 968 Albany-Shaker Road, Latham, New York, 12110, or call (518)
782-7700.
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