SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Securities Exchange Act of 1934
(Amendment (Amendment No. )
Plug Power Inc.
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Letter From Our Chief Executive Officer | ||||
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| May 15, 2023 Dear Fellow Stockholder, For the last 25 years, Plug Power Our customers include some of the Our journey has been a remarkable one, and According to Bloomberg New Energy Finance, the global hydrogen economy could potentially become worth about $10 trillion by 2050, representing 18% of the global energy demand. Among pure-play hydrogen and fuel cell We expect that our hydrogen generation facilities will play a crucial role in the decarbonization of heavy industries, and we have plans to continue rapidly expanding hydrogen | |
| | | | infrastructure. Our first green hydrogen plant in Georgia is expected to commence hydrogen production at the end of the second quarter of 2023. However, this is just the beginning — by 2025, we expect to produce approximately 500 tons of hydrogen per day in the United States. We are also constructing green hydrogen plants in Europe, including significant projects at the Port of Antwerp-Bruges, and establishing a green hydrogen platform for the Iberian Peninsula in collaboration with our partner Acciona in Spain. All our plants will employ Plug Power electrolyzers and Plug Power cryogenic equipment to produce and deliver liquid hydrogen using Plug Power trailers. Throughout the industry, Plug Power’s manufacturing remains a crucial differentiator, and Plug Power continues to bolster its supply chain capabilities through strategic partnerships. Our state-of-the-art facilities in Rochester and Albany, New York are unrivaled. Additionally, we have forged valuable partnerships with suppliers, such as Johnson Matthey, that grant us access to vital product development and manufacturing expertise, as well as essential metals that are crucial to scaling hydrogen infrastructure. At Plug Power, our strategy of scaling our manufacturing helps us significantly reduce our overhead expenses and lower our costs while increasing our margins. Over time, we believe this strategy will accelerate the We believe that our work over the past two years will bear fruit, delivering strong value for our stockholders. Today, Plug Power owns key elements of the broader hydrogen Until then, Plug Power remains committed to becoming the
economy. Thank you for your continued support of our company. Regards, Andrew J. Marsh | |
Latham, New YorkNY 12110
July 9, 2021
The Proxy Statement,statement, with the accompanying formal notice of the meeting, describes the matters expected to be acted upon at the Annual Meeting as well as information on how you can vote your shares and submit questions at the Annual Meeting. Only holders of record of Plug Power’s common stock at the close of business on June 16, 2021April 28, 2023 will be entitled to notice of, and to vote at, the Annual Meeting and any adjournments or postponements thereof.
Latham, New YorkNY 12110
(518) 782-7700
June 27, 2023
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1. The election of two (2) Class III Directors, each to hold office until the Company’s 2026 Annual Meeting of Stockholders and until such director’s successor is duly elected and qualified or until such director’s earlier resignation or removal; 2. The approval of an amendment to the Plug Power Inc. 2021 Stock Option and Incentive Plan, as amended, as described in this proxy statement; 3. The approval of the Plug Power Inc. 2023 Employee Stock Purchase Plan as described in this proxy statement; 4. The approval of the non-binding, advisory vote regarding the compensation of the Company’s named executive officers as described in this proxy statement; 5. The approval of the non-binding, advisory vote regarding the frequency of future non-binding, advisory votes to approve the compensation of the Company’s named executive officers; 6. The ratification of Deloitte & Touche LLP as the Company’s independent registered public accounting firm for 2023; and 7. Such other business as may properly come before |
In light of the COVID-19 pandemic, this year’s Annual Meeting will be held in a virtual-only meeting format. There will not be a physical meeting location, and stockholders will not be able to attend the Annual Meeting in person.
and any adjournments or postponements thereof.
See “
Can I change my vote or revoke my proxy?”June 27, 2023:
By Order of the Board of Directors
Gerard L. Conway, Jr.
Corporate Secretary
| | | | By Order of the Board of Directors | |
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| | | | Gerard L. Conway, Jr. Corporate Secretary | |
July 9, 2021
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This proxy statement contains certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. You can identify forward-looking statements by words such as “believe,” “expect,” “anticipate,” “intend,” “plan,” “aim,” “will,” “may,” “should,” “could,” “would,” “likely,” “estimate,” “predict,” “potential,” “continue,” or other similar expressions. Actual results may differ from those set forth in the forward-looking statements due to a variety of factors, including those contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2022 and the Company’s other filings with the Securities and Exchange Commission (the “SEC”). You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they are made. We undertake no obligation to update or revise any forward-looking statements, unless required by law.
Latham, New YorkNY 12110
(518) 782-7700
2021
June 27, 2023
THE PROXY MATERIALS, AND VOTING YOUR SHARES
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1. The election of two (2) Class III Directors, each to hold office until the Company’s 2026 Annual Meeting of Stockholders and until such director’s successor is duly elected and qualified or until such director’s earlier resignation or removal; 2. The approval of an amendment to the Plug Power Inc. 2021 Stock Option and Incentive Plan, as amended (the “Amended Plan”), as described in this proxy statement; 3. The approval of the Plug Power Inc. 2023 Employee Stock Purchase Plan (the “ESPP”) as described in this proxy statement; 4. The approval of the non-binding, advisory vote regarding the compensation of our named executive officers as described in this proxy statement; 5. The approval of the non-binding, advisory vote regarding the frequency of future non-binding, advisory votes to approve the compensation of our named executive officers; 6. The ratification of Deloitte & Touche LLP as our independent registered public accounting firm for 2023; and 7. Such other business as may properly come before |
Why is the 2021 Annual Meeting a virtual, online meeting?
In light of the COVID-19 pandemic, our Annual Meeting will be a virtual meeting of stockholders where stockholders will participate by accessing a website using the Internet. There will not be a physical meeting location. In light of the public health and safety concerns related to the COVID-19 outbreak, we believe that hosting a virtual meeting will facilitate stockholder attendance and participation at our Annual Meeting by enabling stockholders to safely participate from any location around the world. We have designed the virtual annual meeting to provide the same rights and opportunities to participate as stockholders have at an in-person meeting, including the right to vote and ask questions through the virtual meeting platform.
How can I attend the Annual Meeting?
We will be hosting our Annual Meeting via live webcast only. Any stockholder can attend the Annual Meeting live online at www.virtualshareholdermeeting.com/PLUG2021. The webcast will start at 10:00 a.m., Eastern Time, on July 30, 2021. Stockholders may vote and ask questions while attending the Annual Meeting online. In order to be able to attend the Annual Meeting, you will need the 16-digit control number, which is located on your proxy card. Instructions on how to participate in the Annual Meeting are also posted online at www.proxyvote.com.
any adjournments or postponements thereof.
Can I access As of the NoticeRecord Date, the Company had approximately 600,464,061 shares of Annual Meeting of Stockholders, this Proxy Statement and the 2021 Annual Report on 10-K on the Internet?
Yes, these materials are available on our website and can be accessed at www.proxyvote.com. The information found on, or accessible through, our websitecommon stock outstanding. Cumulative voting is not incorporated into, and does not form a partpermitted with respect to the election of this Proxy Statementdirectors or any other report or document we file with or furnishmatter to be considered at the Securities and Exchange Commission (the “SEC”).
Annual Meeting.
What is the required quorum for the Annual Meeting?
The presence, in person or by proxy, of the holders of a majority of the outstanding shares of Common Stock entitled to voteupon at the Annual Meeting is necessary to constitute a quorum for the transaction of business atMeeting.
submit it with your vote.
Annual MeetingInternet Availability of Proxy Materials has been sent directly to you by us.
Board.
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• By Telephone or Internet — All record holders can vote by touchtone telephone from the United States by dialing (800) 690-6903, or over the Internet at www.proxyvote.com. Please have your notice or proxy card, which will contain your voter control number, |
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Stockholders that own stock in “streethand when voting. “Street name” must demonstrate proof of beneficial ownership to virtually attend the meeting and must obtain a legal proxy fromholders may vote by telephone or Internet if their bank, broker or other nominee to vote atmakes those methods available, in which case the meeting.
Your bank, broker or other nominee will provideenclose the instructions with the Notice of Internet Availability of Proxy Materials they send you. The telephone and Internet voting procedures are designed to authenticate stockholders’ identities, to allow stockholders to vote their shares, and to confirm that their instructions have been recorded properly.
without a nominee issued proxy. Note that a broker letter that identifies you as a stockholder is not the same as a nominee issued proxy.
discretion.
such broker, bank or nominee.
With respect to Proposal 5 (approval of a non-binding, advisory vote regarding the frequency of future non-binding, advisory votes regarding the compensation of the Company’s named executive officers), stockholders may vote for a frequency of one year, two years, or three years, or abstain from voting on the proposal.
Plan as described in this proxy statement;
ESPP as described in this proxy statement;
What if I do not specify how I want my shares voted?
Proposal 1 – FOR the election of each of the three nominees ofset forth above under “
Proposal 2 – FOR the approval of the Fifth Certificate of amendment of the Amended and Restated Certificate of Incorporation of the Company;
Proposal 3 – FOR the approval of the Plug Power Inc. 2021 Stock Option and Incentive Plan;
Proposal 4 – FOR the approval of the non-binding advisory resolution regarding the compensation of the Company’s named executive officers; and
Proposal 5 – FOR the ratification of KPMG LLP as the Company’s independent auditors for 2021.
should vote my shares?
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Virtually attending the Annual Meeting, without voting online during the Annual Meeting, will not revoke your prior Internet vote, telephone vote or proxy submitted by mail, as the case may be.
How are votes withheld from director nominees, abstentions and broker non-votes treated?
Abstentions
Under the engagement agreement with Mackenzie Partners, Inc., we will indemnify and hold MacKenzie Partners, Inc. and all of its directors, officers, employees and agents harmless against all claims, expenses, losses, damages, liabilities and/or judgments of any kind whatsoever that arise out of or relate to the advisory, consulting and proxy solicitation services under the agreement (the “Losses”), except for any Losses that are held in a final judicial decision by a court of competent jurisdiction from which no right of appeal exists to have resulted from willful misconduct or bad faith on the part of MacKenzie Partners, Inc.
the Company’s common stock.
you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. Similarly, if you are a stockholder of record and hold shares in a brokerage account, you will receive a Notice of the Annual Meetingnotice for shares held in your name and a notice or voting instruction card for shares held in “street name.” Please follow the directions provided in the notice for the Annual Meetingcomplete, sign, date, and return each additional notice orproxy card and voting instruction card that you receive in order to ensure thatcast your vote with respect to all of your sharesshares.
available at www.proxyvote.com. Stockholders can elect to receive paper copies in the mail by visiting www.plugpower.com, by writing to Investor Relations at Plug Power Inc., 968 Albany Shaker Road, Latham, New York 12110 or by contacting the Company at (518) 782-7700.
A
III Director. Mr. Silver and Dr. Song are currently members of our Board and each has been nominated for re-election to serve as a Class III Director.
Jonathan M. Silver | | |||
Age: 65 Director since 2018 Board Committee: Corporate Governance and Nominating; Regulatory Affairs Class III Director: Continuing in Office until the 2023 Annual Meeting | | | Jonathan M. Silver has served as a director of the Company since June 2018 Mr. Silver is a Senior Advisor and Chair, Global Climate Council, at Apollo Global Management, a $550 billion asset manager. At Apollo, he Chairs the firm’s Global Climate Council, the group which supports and guides the firm’s $50 billion investment program in sustainability-related entities. Earlier, he was a Senior Advisor at Guggenheim Partners, a large asset manager and investment bank, where he helped expand the firm’s activities in sustainability. From 2015 to 2019, Mr. Silver served as the Managing Partner of Tax Equity Advisors LLC, an advisory firm managing investments in solar power projects on behalf of large corporations. From 2011 to 2018, he also served as Senior Advisor to a number of clean energy firms, including ICF International, Inc., an energy and environmental consulting firms, NextEra Energy, Inc., the nation’s largest renewable energy provider, and Marathon Capital, LLC, a power industry-focused investment bank. He currently sits on the boards of National Grid (NGG: NSYE), a global utility, EG Acqusition Corporation, and Intellihot Inc., a leading player in the tankless water heating sector. Earlier, he served on the boards of Peridot Acquisition Corp, which merged with Li-Cyle, a leader in battery recycling, Eemax, Inc. and Sol Systems, LLC. From 1999 to 2008, Mr. Silver was the co-founder of Core Capital Partners, a venture capital investor in battery technology, advanced manufacturing, telecommunications and software. From 1990 to 1992, he was a Managing Director, and the Chief Operating Officer of Tiger Management, one of the country’s largest and most successful hedge funds. He has also held senior operating positions, including chief operating officer and executive vice president, in several companies. Mr. Silver began his career in | |
Jonathan M. Silver | | |||
| | | 1982 at McKinsey and Company, a global management consulting firm, working on strategic issues for some of the nation’s largest financial institutions and corporations. Mr. Silver has served as a senior advisor to three U.S. Cabinet Secretaries: Commerce (1992 to 1993), Treasury (1992 to 1994) and Interior (1993 to 1995). He is on the board of Resources for the Future and has been on the boards of the American Federation of Scientists, the Wind Energy Foundation and American Forests. We believe Mr. Silver’s qualifications to sit on our Board include his extensive experience with the alternative energy industry, his high-level experience in government and in energy policy and his deep experience as an investor in and advisor to, both clean energy and clean tech companies and their investors. | |
Kyungyeol Song | | |||
Age: 50 Director since 2021 Board Committee: Merger & Acquisition / Strategy Class III Director: Continuing in Office until the 2023 Annual Meeting | | | Kyungyeol Song has been a director of the Company since February 2021. Dr. Song is an Executive Vice President of SK E&S Co., Ltd. (“SK”) and the Chief Operating Officer at PassKey, Inc., a US-based energy transition business entity of SK. Prior to his current position, Dr. Song served as the Senior Vice President in Energy Solution TF at SK Group Supex Council from February 2019 until August 2020 and was the Head of Quantum Growth TF at SK until 2022. Dr. Song also served as the Director of the McKinsey Energy Center from February 2007 until December 2018. Dr. Song received a Ph.D. in Control and Estimation Theory, Aeronautics and Astronautics from the Massachusetts Institute of Technology, a Master of Science in Aerospace Engineering from Seoul National University, and a Bachelor of Science degree in Aerospace Engineering from Seoul National University. Dr. Song was appointed to the Board by Grove Energy Capital LLC, a stockholder of the Company, pursuant to the Investor Agreement, dated as of February 24, 2021. We believe Dr. Song’s qualifications to sit on our Board include his extensive experience with the renewable energy industry. | |
Andrew J. Marsh | | ||||
Age: 67 Director since 2008 Board Committee: None | | | Andrew J. Marsh joined the Company as President and Chief Executive Officer in April 2008 and has been our director since 2008. As President and Chief Executive Officer, Mr. Marsh plans and directs all aspects of the organization’s policies and objectives, and is focused on building a company that leverages Plug Power’s combination of technological expertise, talented people and focus on sales growth to continue the Company’s leadership stance in the future alternative | |
Andrew J. Marsh | | |||
Class I Director: Continuing in Office until the 2024 Annual Meeting | | | energy economy. Mr. Marsh continues to spearhead hydrogen fuel cell innovations, and his ability to drive revenue growth landed Plug Power on Deloitte’s Technology Fast | |
| board of directors of Gevo, Inc., a publicly traded renewable chemicals and advanced biofuels company. Previously, Mr. Marsh was a co-founder of Valere Power, where he served as chief executive officer and board member from the company’s inception in 2001, through its sale to Eltek ASA in 2007. Under his leadership, Valere grew into a profitable global operation with over 200 employees and $90 million in revenue derived from the sale of DC power products to the telecommunications sector. During Mr. Marsh’s tenure, Valere Power received many awards such as the Tech Titan award as the fastest growing technology company in the Dallas Fort Worth area and the Red Herring Top 100 Innovator Award. Prior to founding Valere, he spent almost 18 years with Lucent Bell Laboratories in a variety of sales and technical management positions. | |||
Mr. Marsh is a prominent voice leading the hydrogen and fuel cell industry. Nationally, he is the Chairman of the Fuel Cell and Hydrogen Energy Association, and | ||||
Southern Methodist University. We believe Mr. Marsh’s qualifications to sit on our Board include his extensive experience with the alternative energy industry, as well as his experience in management positions. | |
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Maureen O. Helmer | | |||
Age: 66 Director since 2004 Board Committees:
| | | Maureen O. Helmer has been a director of the Company since 2004. Ms. Helmer | |
Maureen O. Helmer | | |||
Corporate Governance and Nominating (Chair); Regulatory Affairs Class I Director: Continuing in Office until the 2024 Annual Meeting | | | industrial companies on policy and government affairs issues. In addition to serving as Chair of the New York State Public Service Commission (“PSC”) from 1998 to 2003, Ms. Helmer also served as Chair of the New York State Board on Electric Generation Siting and the Environment. Prior to her appointment as Chair, Ms. Helmer served as Commissioner of the PSC from 1997 until 1998 and was General Counsel to PSC from 1995 through 1997. From 1984 through 1995, Ms. Helmer held several positions in the New York Legislature, including Counsel to the Senate Energy Committee. She also served as a board member of the New York State Energy Research and Development Authority, the New York State Environmental Board and the New York State Disaster Preparedness Commission during her tenure as Chair of the | |
We believe Ms. Helmer’s qualifications to sit on our Board include her long history of experience with energy regulation, policy and government affairs and advising energy and industrial companies. | |
Kavita Mahtani | | |||
Age: 52 Director since 2022 Board Committees: Audit Class I Director: Continuing in Office until the 2024 Annual Meeting | | | Kavita Mahtani is Chief Financial Officer, Americas for London-headquartered HSBC. Based in New York, Ms. Mahtani manages a finance organization across the U.S., Canada, Mexico, and South America. In her role, Ms. Mahtani drives growth and M&A strategy, as well as restructuring and re-engineering efforts alongside the Chief Executive Officer. Prior to joining HSBC, Ms. Mahtani served in several leadership roles during her 13-year tenure with Citigroup, Inc., including Managing Director — Global Head of Asset and Liability Management, Chief Financial Officer, Global Corporate and Investment Banking, and Managing Director — Global Head of Financial Planning and Analysis, among others. Ms. Mahtani has also held roles with Morgan Stanley and Merrill Lynch & Company, Inc. Ms. Mahtani holds a Bachelor of Science degree in Economics from the University of Pennsylvania, The Wharton School, and a Master of Business Administration from the University of Chicago’s Graduate School of Business. | |
Kavita Mahtani | | |||
| | | We believe Ms. Mahtani’s qualifications to sit on our Board include extensive experience with growth strategies, merger and acquisition implementation, and leadership. | |
Gary K. Willis | | |||
Age: 77 Director since 2003 Board Committees: Audit; Compensation (Chair); Regulatory Affairs; Merger & Acquisition / Strategy Class I Director: Continuing in Office until the 2024 Annual Meeting | | | Gary K. Willis has been a director of the Company since 2003. Mr. Willis previously served as the President of the Zygo Corporation (“Zygo”) from February 1992 to 1999 and the Chief Executive Officer from 1993 to 1999. Mr. Willis served as a director of Zygo from 1992 to November 2000, including as Chairman of the board from 1998 to 2000. Mr. Willis also served as a director of Zygo from 2004 to 2014. Zygo, which was acquired in 2014 by Ametek, Inc., was a provider of metrology, optics, optical assembly, and systems solutions to the semiconductor, optical manufacturing, and industrial/automotive markets. Prior to joining Zygo, Mr. Willis served as the President and Chief Executive Officer of The Foxboro Company, a manufacturer of process control instruments and systems. Mr. Willis holds a Bachelor of Science degree in Mechanical Engineering from Worcester Polytechnic Institute. We believe Mr. Willis’ qualifications to sit on our Board include his extensive experience in management and director positions with similar companies, as well as his educational background in mechanical engineering. | |
Jean A. Bua | | ||||
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Age: 64 Director since 2022 Board Committee: Audit (Chair) Class II Director: Continuing in
| | | Jean A. Bua currently is the Executive Vice President, Chief Financial Officer, Chief Accounting Officer and Treasurer of NetScout Systems, Inc. (NASDAQ: NTCT), a provider of real-time operational intelligence and performance analytics for service assurance and cyber security solutions. Prior to NetScout, Ms. Bua served as Executive Vice President, Finance & Treasurer of American Tower Corporation, an operator of wireless and broadcast communications infrastructure, and spent nine years at Iron Mountain, Inc., an information management services company, concluding as Senior Vice President, Chief Accounting Officer and Worldwide Controller. She also previously held senior positions at Duracraft Corp. and Keithley Instruments and was a management consultant at Ernst & Young LLP and an auditor at KPMG LLP. She has led all global financial operations, including M&A analysis, acquisition integration, capital market strategy, financial planning and analysis, international tax, financial systems and compliance for high-growth, transformative public companies. Ms. Bua served as a board member and audit committee chair for Coresite Realty until its acquisition at the end of | |
Jean A. Bua | | |||
| | | 2021. Ms. Bua earned a Bachelor of Science in Business Administration, summa cum laude, from Bryant College and an M.B.A. from the University of Rhode Island. We believe Ms. Bua’s qualifications to sit on our Board include her knowledge of acquisition strategy and implementation, global financial operations, and compliance. | |
Gregory L. Kenausis | | |||
Age: 53 Director since 2013 Board Committee: Audit; Compensation; Merger & Acquisition / Strategy Class II Director: Continuing in Office until the 2025 Annual Meeting | | | Gregory L. Kenausis has been a director of the Company since October 2013. Dr. Kenausis is the founding partner and since 2005 has been the Chief Investment Officer of Grand Haven Capital AG, an investment firm, where he is the head of research and trading activity and is responsible for managing the fund’s operations and structure. He also has worked extensively as a business consultant with a focus on business development and strategy, as well as valuation. Dr. Kenausis earned a bachelor’s degree from Yale University and a doctoral degree from the University of Texas at Austin. We believe Dr. Kenausis’ qualifications to sit on our Board include his background and senior level experience in financial investments, business development and strategy, management and equity capital markets. | |
George C. McNamee | | |||
Chairman Age: 76 Director since 1997 Board Committee: Compensation; Regulatory Affairs; Merger & Acquisition / Strategy Class II Director: Continuing in Office until the | | | George C. McNamee serves as Chairman of the Company’s Board of Directors and has served as such since 1997. He was previously Chairman of First Albany Companies Inc. | |
George C. McNamee | | |||
2025 Annual Meeting | | | Service Award. He served as a NYSE director from 1999 to 2004 and chaired its foundation. In the aftermath of the 1987 stock market crash, he chaired the Group of Thirty Committee to reform the Clearance and Settlement System. Mr. McNamee has been active as a director or trustee of civic organizations including The Albany Academies and Albany Medical Center, whose Finance Committee he chaired for 12 years. He is also a director of several private companies, a Sterling Fellow of Yale University and a Trustee of The American Friends of Eton College. He conceived and co-authored a book on the Chicago Conspiracy Trial. He received his Bachelor of Arts degree from Yale University. We believe Mr. McNamee’s qualifications to sit on our Board include his experience serving on technology company boards, his background in investment banking, which has given him broad exposure to many financing and merger and acquisition issues, and experience with the financial sector and its regulatory bodies. | |
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The Board of Directors has determined that Messes. Bua, Helmer and Harriman, Dr.Mahtani, Drs. Kenausis Dr.and Song and Messrs. McNamee, Willis,Schneider, Silver Roth and SchneiderWillis are independent directors as defined in Rule 5605(a)(2) under the Marketplace Rules of the National Association of Securities Dealers, Inc. (the “NASDAQ“Nasdaq Rules”).
Investor Agreement
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The positions
tenure on the Board. Longer-serving directors bring valuable experience and a deep understanding of our complex business and industry, along with a historical perspective of our long-term successes, challenges and business cycles, and how these past experiences may inform our current strategy. Newer directors are also critical to the advancement of our strategy, bringing new skills and experiences and contributing fresh perspectives. Over the past year, the Board has been keenly focused on the recruitment of exceptional director candidates to replace departing directors. The Board focused on director candidates whose skills and experience no only enhanced the Board but also made them highly qualified to serve on our Audit Committee.
The Chief Financial Officermatters, including compliance with applicable federal securities laws. Additionally, in January 2023, the Board established two additional standing Board committees: the Merger & Acquisition / Strategy Committee and the General Counsel reportRegulatory Affairs Committee. The Regulatory Affairs Committee is responsible for the oversight of the Company’s compliance programs and activities to help ensure the Company complies with all laws, rules and regulations applicable to the Company and its operations, and the Merger & Acquisition / Strategy Committee is responsible for assisting the Board in fulfilling its oversight responsibilities relating to the Company’s long-term strategy, risks and opportunities relating to such strategy, and strategic decisions regarding ongoing risk management activities atacquisitions, investments, joint ventures and divestitures by the regularly scheduled, quarterlyCompany.
Board Diversity Matrix (As of April 17, 2023) | | ||||||||||||||||||
Total Number of Directors | | | 10 | | |||||||||||||||
| | | Female | | | Male | | | Did Not Disclose Gender | | |||||||||
Part I: Gender Identity | | ||||||||||||||||||
Directors | | | | | 3 | | | | | | 6 | | | | | | 1 | | |
Part II: Demographic Background | | ||||||||||||||||||
Asian | | | | | 1 | | | | | | 1 | | | | | | | | |
White | | | | | 1 | | | | | | 5 | | | | | | | | |
Did Not Disclose Demographic Background | | | | | | | | | | | 2 | | | | | | | | |
On January 18, 2023, the Board established two additional standing Board committees: the Merger & Acquisition / Strategy Committee and the Regulatory Affairs Committee.
2022.
proxy statement.
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The Audit Committee reviewed and discussed with management of the Company and KPMGDeloitte & Touche LLP the Company’s audited consolidated financial statements for the fiscal year ended December 31, 2020,2022, including management’s assessment of the effectiveness of the Company’s internal controls over financial reporting as of December 31, 2020.
On March 16, 2021, the Company and the Audit Committee concluded that, because of errors identified in the Company’s previously issued financial statements, the Company’s audited consolidated financial statements as of and for the years ended December 31, 2019 and 2018 and its unaudited quarterly consolidated financial statements as of and for each of the quarterly periods ended March 31, 2020 and 2019, June 30, 2020 and 2019, September 30, 2020 and 2019 and December 31, 2019 were restated. These errors were identified after the Company reported its 2020 fourth quarter and year end results on February 25, 2021. The Company determined that these errors were the result of a material weakness in internal control over financial reporting which are described in Part II, Item 9A, “Controls and Procedures” in the Annual Report on Form 10-K for the year ended December 31, 2020 (the “Form 10-K”).
Management performed an assessment of the effectiveness of our internal control over financial reporting and concluded that our internal control over financial reporting was not effective as of December 31, 2020. Management identified the following deficiency in internal control over financial reporting as of December 31, 2020: the Company did not maintain a sufficient complement of trained, knowledgeable resources to execute its responsibilities with respect to internal control over financial reporting for certain financial statement accounts and disclosures. As a consequence, the Company did not conduct an effective risk assessment process that was responsive to changes in the Company’s operating environment and did not design and implement effective process-level controls activities in the following areas:
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As reported in the Form 10-K and the Form 10-Q for the quarter ended March 31, 2021, the Company continues to take steps to remediate this material weakness and will continue to take further steps until such remediation is complete. These steps include the following:
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The Company also intends to deploy new tools and tracking mechanisms to help enhance and maintain the appropriate documentation surrounding its classification of operating expenses.
The Company will report regularly to the Audit Committee on the progress and results of the remediation plan, including the identification, status, and resolution of internal control deficiencies.
As the Company works to improve its internal control over financial reporting, the Company may modify its remediation plan and may implement additional measures as it continues to review, optimize and enhance its financial reporting controls and procedures in the ordinary course. The material weakness will not be considered remediated until the remediated controls have been operating for a sufficient period of time and can be evidenced through testing that they are operating effectively. The material weakness has not been remediated as of March 31, 2021. For more information about the restatement, including impacts on the Company’s financial statements, and the Company’s remediation plan, see the Form 10-K that is available at www.proxyvote.com.
Additionally, the Audit Committee has discussed with KPMGDeloitte & Touche LLP other matters required to be discussed under professional standards. The Audit Committee has also discussed related party transactions, the critical accounting policies used in the preparation of the Company’s annual consolidated financial statements, alternative treatments of financial information within GAAPU.S. generally accepted accounting principles (“GAAP’) that KPMGDeloitte & Touche LLP discussed with management, if any, and the ramifications of using such alternative treatments and other written communications between KPMGDeloitte & Touche LLP and management.
KPMG
Kimberly A. Harriman
Maureen O. Helmer
Kavita Mahtani
Gary K. Willis
2020 | 2019 | |||||||
Audit Fees | $ | 3,911,900 | $ | 1,064,325 | ||||
Audit-Related Fees | $ | 30,000 | $ | 30,000 | ||||
Tax Fees | — | — | ||||||
All Other Fees | — | — | ||||||
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Total | $ | 3,941,900 | $ | 1,094,325 |
fiscal year ended December 31, 2022:
| | | 2022 | | | 2021 | | ||||||
Audit Fees | | | | $ | 4,201,429 | | | | | $ | 3,945,000 | | |
Audit-Related Fees | | | | $ | 94,000 | | | | | $ | 35,000 | | |
Tax Fees | | | | $ | 492,819 | | | | | | — | | |
All Other Fees | | | | | — | | | | | | — | | |
Total | | | | $ | 4,788,248 | | | | | $ | 3,980,000 | | |
consolidated financial statements; (3) “tax fees” are fees for tax compliance, tax advice, and tax planning; and (4) “all other fees” are fees for any services not included in the first three categories.
until the appointment of Deloitte & Touche LLP and pre-approved all audit and audit-related services provided to the Company by Deloitte & Touche LLP for the fiscal year ended December 31, 2022.
proxy statement.
proxy statement.
proxy statement.
to the ethical conduct of our business and our long-standing commitment to honesty, fair dealing and full compliance with all laws affecting our business. In the event that we amend or waive certain provisions of our code of conduct in a manner that requires disclosure under applicable rules, we intend to provide such required disclosure on our website in accordance with applicable SEC and NASDAQNasdaq Rules. Our code of ethics is available on our website at www.plugpower.com under the Investor Relations.Relations section. Our website is not incorporated into or a part of this Proxy Statement.
proxy statement.
During 2020, pursuant
During 2020, under the Plan, each non-employee director was paid an annual retainer of $40,000 ($85,000 for any non-employee Chairman) for his or her services. Committee members received additional annual retainers for their service on committees of the Board in accordance with the following table:
Committee | Chairman ($) | Member ($) | ||||||
Audit Committee | 20,000 | 15,000 | ||||||
Compensation Committee | 15,000 | 5,000 | ||||||
Corporate Governance and Nominating Committee | 10,000 | 5,000 |
These additional payments for service on a committee are due to the workload and broad-based responsibilities of the committees. The total amount of the annual retainer is paid in a combination of 50% cash and 50% Common Stock, provided that the director may elect to receive a greater portion (up to 100%) of the total retainer in Common Stock. All Common Stock issued for the annual retainers is fully vested at the time of issuance and is valued at its fair market value on the date of issuance. Non-employee directors are also reimbursed for their direct expenses associated with their attendance at Board meetings.
The Compensation Committee regularly reviews non-employee director compensation in comparison to our industry peer group, and considers growth in our market capitalization and sales, and other relevant factors including periodic independent market assessments. The Plan was amended by the Board in September 2020, effective as of January 1, 2021, to provide for (i) an increase in the annual retainer payable for service on the Board, and (ii) an increase in the value of the stock option and restricted stock awards granted to non-employee
directors upon initial election to the Board and annually. The adjustments to the annual retainer and equity grants were designed to be competitive with our 2020 peer group.
Effective January 1, 2021, pursuant to the Plan, upon initial election or appointment to the Board, each non-employee director (other than Dr. Song) will receivereceives an initial, one-time award of a non-qualified stock option to purchase a number of shares equal to $225,000 divided by the closing price of our Common Stockcommon stock on the grant date, with an exercise price equal to the fair market value of our Common Stockcommon stock on the grant date and that becomes fully vested and exercisablevests in full on the first anniversary of the grant date, subject to continued service through such date. EachThe initial award expires ten (10) years from the grant date. Notwithstanding the foregoing, all shares of our common stock subject to such non-qualified stock option will become fully vested and exercisable subject to the non-employee director’s continued service relationship through the consummation of a “sale event,” as defined in the 2021 Plan, immediately prior to the consummation of such sale event. In addition, pursuant to the Director Compensation Plan, each year of a non-employee director’s tenure, thea director (other than Dr. Song) will receiveSong and any director receiving an initial award upon initial election or appointment to the Board) receives an equity grant comprised of (i) a non-qualified stock option forto purchase a number of shares equal to $112,500 divided by the closing price of our Common Stockcommon stock on the date of the grant and (ii) a number of shares of restricted Common Stockcommon stock equal to $112,500 divided by the closing price of our Common Stockcommon stock on the grant date. The stock option portion of the grant will haveexpires ten (10) years from the grant date and has an exercise price equal to the fair market value of our Common Stockcommon stock on the grant datedate. The stock option and become fully vested and exercisable onrestricted common stock vest in full upon the earlier of the first anniversary of the grant date or the date of the next annual meeting which is at least fifty (50) weeks after the immediately preceding year’s annual meeting, subject to continued service through such date. TheNotwithstanding the foregoing, all such shares of restricted Common Stock grantcommon stock and stock options will become fully vested, onsubject to the first anniversarynon-employee director’s continued service relationship through the consummation of a sale event, immediately prior to the grant date.
Effective January 1, 2021, underconsummation of such sale event.
Committee | Chairman ($) | Member ($) | ||||||
Audit Committee | 20,000 | 15,000 | ||||||
Compensation Committee | 15,000 | 5,000 | ||||||
Corporate Governance and Nominating Committee | 10,000 | 5,000 |
Committees | | | Chair ($) | | | Member ($) | | ||||||
Audit Committee | | | | | 20,000 | | | | | | 15,000 | | |
Compensation Committee | | | | | 15,000 | | | | | | 5,000 | | |
Corporate Governance and Nominating Committee | | | | | 10,000 | | | | | | 5,000 | | |
Committees | | | Chair ($) | | | Member ($) | | ||||||
Audit Committee | | | | | 25,000 | | | | | | 20,000 | | |
Compensation Committee | | | | | 20,000 | | | | | | 10,000 | | |
Corporate Governance and Nominating Committee | | | | | 15,000 | | | | | | 10,000 | | |
Merger & Acquisition / Strategy Committee | | | | | 15,000 | | | | | | 10,000 | | |
Regulatory Affairs Committee | | | | | 15,000 | | | | | | 10,000 | | |
Name | Fees Earned or Paid in Cash(1)($) | Stock Awards(2) ($) | Option Awards(3) ($) | Total($) | ||||||||||||
Gary K. Willis | 70,000 | 62,500 | 36,145 | 168,645 | ||||||||||||
George C. McNamee | 90,000 | 62,500 | 36,145 | 188,645 | ||||||||||||
Gregory L. Kenausis | 60,000 | 62,500 | 36,145 | 158,645 | ||||||||||||
Johannes M. Roth | 50,000 | 62,500 | 36,145 | 148,645 | ||||||||||||
Maureen O. Helmer | 65,000 | 62,500 | 36,145 | 163,645 | ||||||||||||
Jonathan Silver | 45,000 | 62,500 | 36,145 | 143,645 | ||||||||||||
Lucas P. Schneider | 45,000 | 62,500 | 36,145 | 143,645 |
|
Name | | | Fees Earned or Paid in Cash(1)($) | | | Stock Awards(2) ($) | | | Option Awards(3) ($) | | | Total($) | | ||||||||||||
Jean A. Bua | | | | | 57,144 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 241,330 | | |
Maureen O. Helmer | | | | | 85,000 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 269,186 | | |
Gregory L. Kenausis | | | | | 76,430 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 260,616 | | |
Kavita Mahtani | | | | | 53,572 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 237,758 | | |
George C. McNamee | | | | | 130,000 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 314,186 | | |
Lucas P. Schneider | | | | | 65,000 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 249,186 | | |
Jonathan M. Silver | | | | | 65,000 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 249,186 | | |
Kyungyeol Song(4) | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Gary K. Willis | | | | | 90,000 | | | | | | 112,494 | | | | | | 71,692 | | | | | | 274,186 | | |
|
|
Meeting, with the exception of Jean A. Bua.
the name and address of recordFor a discussion of the stockholder;
a representation that the securityholder is a record holder of the Company’s stock entitled to vote in the election of directors, or if the securityholder is not a record holder, evidence of ownership in accordance with Rule 14a-8(b)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”);
the name, age, business and residential address, educational background, current principal occupation or employment, and principal occupation or employmentrequirements for the preceding five (5) full fiscal yearssubmission of the proposedstockholder proposals or director candidate;
a description of the qualifications and background of the proposed director candidate which addresses the minimum qualifications and other criteria for membership on the Board approved by the Corporate Governance and Nominating Committee from time to time;
a description of all arrangements or understandings between the securityholder and the proposed director candidate;
the consent of the proposed director candidate (i) to be named in the proxy statement relating to the annual meeting of stockholders and (ii) to serve as a director if elected at such annual meeting; and
any other information regarding the proposed director candidate that is required to be included in a proxy statement filed pursuant to the rules of the SEC.
Board Membership Criteria
•
•
Nominating Committee will primarily apply the criteria set forth in our Corporate Governance Guidelines.corporate governance guidelines. These criteria include the candidate’s integrity, business acumen, age, experience, commitment, diligence, conflicts of interest, and the ability to act in the interests of all shareholders.stockholders. Our Guidelinescorporate governance guidelines specify that the value of diversity on the Board should be considered by the Corporate Governance and Nominating Committee in the director identification and nomination process. The Corporate Governance and Nominating Committee seeks nominees with a broad diversity of experience, professions, skills, geographic representation, and backgrounds. The Corporate Governance and Nominating Committee does not assign specific weights to particular criteria and no particular criterion is necessarily applicable to all prospective nominees. The Company believes that the backgrounds and qualifications of the directors, considered as a group, should provide a significant composite mix of experience, knowledge, and abilities that will allow the Board to fulfill its responsibilities. Nominees are not discriminated against on the basis of race, religion, national origin, sexual orientation, disability, or any other basis proscribedprotected by law. For a more comprehensive discussion of our Corporate Governance and Nominating Committee’s current policy with regard to the consideration of director candidates, please refer to “Policies“Policies Governing Director Nominations.”
People
Weelectrolyzers that help global customers adopt green hydrogen, to developing end-to-end green hydrogen solutions, we believe our hydrogen solution ecosystem will help the economy transition from one that is fossil fuel-driven to one that is better for a livable planet. Our commitment to the environment is reflected not only through the impacts of our products in making a positive impact inoperation but to our commitment to resource efficiency, responsible design, materials management, and recycling. This year, we plan to track greenhouse gas emissions, and have agreed to add electric vehicles to our fleet, both of which will help us cut our own emissions as we scale our green hydrogen business. Our mission is to consistently increase our supply chain responsibility and manage our products at the communities where we live and work. From organizations dedicated to health, housing and development and children and families in need — we strive to empower the local community through philanthropic efforts. We also encourage our employees to donate to charitable organizationsend of their choice.
Education
We are active in educational engagementlifecycles so that we can displace diesel and seekother fossil fuels with the accelerated use of green hydrogen as we transition to broaden the educational opportunities of students in our communities who demonstrate a passion for scienceglobal net-zero economy.
Sustainability
Inclusion
Diversity and Inclusion
We invest in the long-term development and engagement of our employees by aspiring to have an increasingly diverse workforce, inclusive environment, training and development programs and a culture where our people can thrive. We are committed to providing and supporting a work environment that promotes equality of opportunity among our employees.productive workplace free from discrimination or harassment. We strive for our workforce to be truly representative of all sections of society and for each employee to feel respected and able to perform at his or her best. In the United States, 23.6%as of December 31, 2022, 32.8% of our employeeworkforce population iswas considered diverse and 14.9%17.03% was female.
Environmental, further enhanced by policies related to various aspects of employment, including, but not limited to, recruiting, hiring, job assignment, compensation, access to benefits, selection for training, use of facilities, and participation in Company-sponsored employee activities.
As a leader in innovative solutions and services that drive technology advancements in the fuel cell industry, Plug Power is committed to responsible business — for our people and for the environment. This responsibility extends from our operations, to our diverse eco-system of partners, and to our customers. We are committed to continued integration and improvement of environmental, health and safety (EHS) management practices into our business.
To demonstrate our commitment, Plug Power strives to:
Care for our people and the environment by considering design for EHS principles from a life cycle perspective, in our product design and development, operations and supply chain;
Protect our employees, community, and the environment by committing to pollution prevention, as well as to creating an injury-free workplace and safety-based culture. We promote a healthy lifestyle and encourage employee health and wellness and work-life balance;
Engage suppliers to advance sustainability efforts;
Comply with applicable EHS legal and other customer requirements. We also engage with our stakeholders to understand their needs and expectations;
Set goals and objectives to address the most significant EHS impacts and risks resulting from our business operations, services and products; and
Regularly monitor and evaluate our EHS performance results to demonstrate continual improvement.
Plug Power leadership has developed and endorses this EHS Policy. In this capacity, leadership is responsible for communicating this policy to our stakeholders, as well as for its effective implementation. All Plug Power employees, suppliers and contractors are expected to uphold this policy and adhere to relevant company EHS policies, procedures and requirements.
Climate Change Policy
Climate change is a serious environmental, social and economic threat that calls for immediate and collaborative action among all sectors of society. Plug Power acknowledges its role in addressing this global issue and is committed to minimizing its greenhouse gas (GHG) emissions by:
Taking actions to measure, track, reduce and report our climate footprint, which includes direct and indirect emissions resulting from our operations and our value chain by subscribing to the principles of the Task Force on Climate-related Financial Disclosures (TCFD);
Determining appropriate targets for reducing GHG emissions for comparable companies;
Determining appropriate targets for total water consumption;
Identifying the risks of its business activities on the environment;
Adopting a hazardous waste policy;
Determining the portion of energy derived from renewable and non-renewable sources;
Considering factors in product design and development that enhance energy efficiency and promote smarter energy use;
Administering a commute alternatives program that provides employees incentives to commute by carpool, bike and transit where feasible; and
Partnering with organizations that are working to address climate change.
Plug Power leadership takes ownership and monitors our performance in reducing GHG emissions and mitigating climate change by factoring this into our organization’s strategies.
Sustainability and Safety
We are committed to providing a safe and healthfulhealthy working environment for our employees, which includes maintainingfocusing on being in compliance with all applicable federal, state, and local laws, rules, and regulations relating to workplace safety and conditions. We strive for zero work-related injuries or illnesses. ToAs part of our commitment, we hired a Vice President of Environmental Health & Safety and expanded our global environmental health and safety leadership. We believe that end,having this leadership team in place alongside other experienced environmental health and safety professionals enables us to foster a culture of safety excellence and create an environment where our team is accountable for their own safety and the safety of others. We have also recently deployed an environmental health and safety software management which we plan to use to report, notify and track inspections, job safety analyses and incidents, if any. In addition, we purchased a learning management system with a suite of several hundred environmental health and safety courses, which has allowed for a one-stop location where employees can access all available environmental, health and safety trainings in a multitude of languages. We have also implemented written programs, includingergonomic solutions to assist in increasing productivity and decreasing muscle fatigue and the severity of work-related musculoskeletal system diseases.
Contacting the Board of Directors
Cautionary Note Regarding Forward-Looking Statements
This Proxy Statement contains certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 that are subject to risks and uncertainties. You can identify forward-looking statements by words such as “believe,” “expect,” “anticipate,” “intend,” “plan,” “aim,” “will,” “may,” “should,” “could,” “would,” “likely,” “estimate,” “predict,” “potential,” “continue” or other similar expressions. Actual results may differ from those set forth in the forward-looking statements due to a variety of factors, including those contained in the Company’s Annual Report on Form 10-K for the year ended December
Executive Officers | | | Age | | | Position | |
Andrew J. Marsh | | 67 | | | President, Chief Executive Officer and Director | | |
Paul B. Middleton | | 55 | | Chief Financial Officer and Executive Vice President | | ||
| |||||||
Gerard L. Conway, Jr. | | 58 | | | General Counsel, Corporate Secretary and | | |
| |||||||
Jose Luis Crespo | | 53 | | | General Manager, Applications and Executive Vice President | | |
Martin D. Hull | | 55 | | | Corporate Controller and Chief Accounting Officer | | |
David Mindnich | | | 45 | | | Executive Vice President, Global Manufacturing | |
Keith C. Schmid | | | 60 | | | Executive Vice President, Special Projects | |
Sanjay K. Shrestha | | | 49 | | | General Manager, Energy Solutions, Chief Strategy Officer, and Executive Vice President | |
Plug Powerthe Company as Senior Vice President and Chief Financial Officer and Executive Vice President in 2014. Prior to Plug Power, Mr. Middleton worked at Rogers Corp., a global manufacturer and distributor of specialty polymer composite materials and components, from 2001 to 2014. During his tenure at Rogers Corp., Mr. Middleton served in many senior financial leadership roles, including Corporate Controller and Principal Accounting Officer, Treasurer and Interim Chief Financial Officer. Prior to Rogers Corp., Mr. Middleton managed all financial administration for the tools division of Coopers Industries from 1997 to 2001. Mr. Middleton holds a Master of Science in Accounting and a BBA from the University of Central Florida. Additionally, he is a Certified Public Accountant.
Gerard L. Conway, Jr. has served as General Counsel and Corporate Secretary of Plug Power since September 2004 and, since March 2009, has also served as Senior Vice President of Plug Power. In that capacity, Mr. Conway is responsible for advising the Company on legal issues such as corporate law, securities, contracts, strategic alliances and intellectual property. He also serves as the Compliance Officer for securities matters affecting the Company. During his tenure at Plug Power, Mr. Conway served as Vice President of Government Relations from 2005 to June 2008 and in that capacity he advocated on energy issues, policies, legislation and regulations on the state, federal, national and international levels on behalf of the Company and the alternative energy sector. Prior to his appointment to his current position, Mr. Conway served as Associate General Counsel and Director of Government Relations for the Company beginning in July 2000. Prior to joining Plug Power, Mr. Conway spent four years as an Associate with Featherstonhaugh, Conway, Wiley & Clyne, LLP, where he concentrated in government relations, business and corporate law. Mr. Conway has more than 20 years of experience in general business, corporate real estate and government relations. Mr. Conway holds a Bachelor of Arts degree in English and Philosophy from Colgate University and a Juris Doctorate from Boston University School of Law.
Sanjay K. Shresthajoined the Company as Chief Strategy Officer and Executive Vice President in 2019.April 2019, and was appointed as General Manager, Energy Solutions in January 2021. Prior to joining Plug Power, Mr. Shrestha served as the Chief Investment Officer of Sky Solar Holdings, which owned and operated solar projects in Japan, Europe and the Americas, and President of Sky Capital America, which owned and operated solar projects in North and South America, since 2015. Under his leadership, Sky Capital America built and acquired over 100MW of operating solar assets and secured a pipeline over 100MW. He also sourced various types of financing solutions to support this growth, including project debt, construction equity and long-term equity. Before global solar IPP,Sky Capital America, he led the renewables investment banking effort at FBR Capital Markets (now known as B. Riley Financial, Inc.) since 2013. During 2014, and under his leadership, the
Jose Luis Crespo joined the Company as Vice President of Business and International Sales in 2014. He was promoted to Vice President of Global Sales in January of 2015 and in 2016 he was also named General Manager for Hypulsion, the Company’s wholly owned European subsidiary. Prior to joining the Company, Mr. Crespo served as Vice President of International Value Stream at Smiths Power, a supplier of power distribution, conditioning, protection and monitoring solutions for data centers, wireless communications and other critical or high-value electrical systems, from 2009 to 2013. Mr. Crespo holds a Master in Business Administration from the University of Phoenix and a degree in Telecommunications Engineering from the Engineering University of Madrid, Spain.
Martin D. Hull joined Plug Power as Corporate Controller and Chief Accounting Officer in April 2015. Prior to that, he was a principal and director with the certified public accounting firm of Marvin and Company, P.C. from November 2012 to March 2015. Prior to that, Mr. Hull was with KPMG LLP, serving as partner from October 2004 to September 2012, and has a total of 24 years of public accounting experience. Mr. Hull holds a Bachelor of Business Administration with a concentration in Accounting from the University of Notre Dame.
| | | With Plug Power Since: | |
Andrew J. Marsh, our President and Chief Executive Officer and a Director | | | 2008 | |
Paul B. Middleton, our Chief Financial Officer and Executive Vice President | | | 2014 | |
Gerard L. Conway, Jr., our General Counsel, Corporate Secretary, and Executive Vice President | | | 2000 | |
Jose Luis Crespo, our General Manager, Applications and Executive Vice President | | | 2014 | |
Dirk Ole Hoefelmann, our Former General Manager, Electrolyzers and Executive Vice President | | | 2021 | |
Keith Schmid, our Executive Vice President, Special Projects | | | 2013 | |
Sanjay K. Shrestha, our General Manager, Energy Solutions, Chief Strategy Officer, and Executive Vice President | | | 2019 | |
Andrew J. Marsh, our President and Chief Executive Officer and a Director;
Paul B. Middleton, our Chief Financial Officer and Senior Vice President;
Sanjay K. Shrestha, our Chief Strategy Officer;
Keith C. Schmid, our Chief Operating Officer and Senior Vice President; and
Jose Luis Crespo, our Vice President-Global Sales.
While the discussion in this section is focused on our named executive officers, many of our executive compensation programs apply broadly across our executive ranks. The following discussion should be read together with the compensation tables and related disclosures set forth below.
that follow.
Our Response to the Covid-19 Pandemic
Like all companies, Plug Power was impacted by the Covid-19 pandemic. We rose to the challenge and our response is reflective of our culture and our commitment to our employees, to our customers and to society. Below are a few highlights:
We prioritized the health and wellbeing of our employees and their families while continuing to deliver for our customers.
As restrictions and shutdowns were announced in countries around the world, we implemented new and imaginative ways for our employees to work at our facilities and remotely.
We enabled our employees to remain focused on delivering for our customers by providing personal and financial “peace of mind” by assuring job security and not implementing salary reductions or furloughs.
Our world-class engineers built ventilator prototypes to address the severe country-wide shortages.
We deployed members of our engineering, manufacturing and logistics teams to design and 3D print thousands of face shields that were donated to healthcare facilities and communities.
Our resourceful buyers sourced and coordinated personal protective equipment (PPE) distribution to hospitals.
We facilitated the critical delivery operations of our customers providing essential services in the food, retail and cleaning supplies industries.
We engaged in corporate philanthropy by making donations to several charitable organizations, including The United Way and The No Neighbor Hungry Campaign.
The Covid-19 pandemic has highlighted the importance of innovative technology-driven solutions and imaginative human capital management to address an unprecedented crisis; it has also revealed just how interconnected we are as a society. We are proud of our Company’s response, and we are grateful for the extraordinary contribution of our employees to the success of Plug Power.
2020 Business and Strategic Highlights
2020 was an exceptional year for
| 2022 Financial Highlights | | ||||||
| $701M | | | $(194M) | | | 524% | |
| 2022 Net Revenue | | | 2022 Gross Profit (Loss) | | | 5-Year Total Stockholder Return | |
| + $199M | | | + 6% | | | | |
| YoY Improvement | | | YoY Improvement | | | | |
Strong financial performance•
Deployed more than 9,800three megawatt stationary fuel cell units powering electric vehicles in 2020 and built over 27 hydrogen stations.
Raised approximately $1.5 billion in proceeds from equity and debt offerings in 2020, including executing
Ended the year with
Completed the strategic acquisitions of United Hydrogen Group, Inc. and Giner ELX, Inc., positioning the Company as a fully verticallylarge scale green hydrogen generation company.
Announced strategic partnerships with Brookfield Energy, Apex Clean Energy and ACCIONA to source renewable electricity and build liquid
Continued to make strides within
Released multiple new ProGen engine models, including the 125kW (on and off-road applications) and 1kW (robotics and drone applications) units.
Continued to make progress with the Company’s partner, Lightning Systems, to build “middle-mile” delivery vehicles, producing the first electric, fuel cell-powered class-6 truck.
Signed a memorandum of understanding with Linde to deploy pilot class-6 and class-8 vehicles on road in 2021.
Collaborated with Gaussin to bring a commercial suite of ProGen-powered Gaussin transportation vehicles to market in 2021 as a solution to decarbonize the logistics ecosystem.
Released the GenSure HP product designed for large-scale back-up power applications, including data centers, energy storage systems and microgrids, including manufacturing production of the GenSure HP product line commencing in December of 2020.
In addition, the Company made significant progress in solidifying its global leadership position in green hydrogen solutions by executing term sheetsDeveloped opportunity pipeline for a joint venture in France with Groupe Renault, a top automotive player,number of new product platforms like liquification, hydrogen distribution, and a joint venture in Asia with a subsidiary of SK Holdings to bringonsite hydrogen solutions to Korea, China and Vietnam, which joint ventures were announced in January 2021.
generation.
NASDAQ Clean Edge Green Energy CELS Index (CELS) and the Russell 2000 Index (RUT)RUT Index on December 31, 20152017 and the reinvestment of all dividends, if any.
Index | 2015 | 2016 | 2017 | 2018 | 2019 | 2020 | ||||||||||||||||||
Plug Power Inc. | $ | 100.00 | $ | 56.87 | $ | 111.85 | $ | 58.77 | $ | 149.76 | $ | 1,607.11 | ||||||||||||
NASDAQ Clean Edge Green Energy Index | $ | $ | 96.38 | $ | 126.05 | $ | 109.45 | $ | 152.61 | $ | 434.93 | |||||||||||||
Russell 2000 Index | $ | 100.00 | $ | 119.48 | $ | 135.18 | $ | 118.72 | $ | 146.15 | $ | 173.86 |
The
Index | | | 2017 | | | 2018 | | | 2019 | | | 2020 | | | 2021 | | | 2022 | | ||||||||||||||||||
Plug Power Inc. | | | | $ | 100.00 | | | | | $ | 52.54 | | | | | $ | 133.90 | | | | | $ | 1,436.86 | | | | | $ | 1,196.19 | | | | | $ | 524.15 | | |
NASDAQ Clean Edge Green Energy Index | | | | $ | 100.00 | | | | | $ | 86.83 | | | | | $ | 121.07 | | | | | $ | 345.03 | | | | | $ | 334.51 | | | | | $ | 224.35 | | |
Russell 2000 Index | | | | $ | 100.00 | | | | | $ | 87.82 | | | | | $ | 108.11 | | | | | $ | 128.61 | | | | | $ | 146.21 | | | | | $ | 114.70 | | |
•
pay for performance in orderpay-for-performance to provide incentives and accountability for our executive officers in working toward the achievement of our objectives. Accordingly, we have designed our incentive compensation programs with the goal of ensuring that actual pay varies above or below targeted compensation opportunity based on achievement of challenging performance goals and demonstration of meaningful individual commitment and contribution.
| ||
Base salary reflects received base salary in fiscal 2020.
Key elements of our compensation programs include the following:
| Compensation Element | | | Purpose | | | Features | |
|
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Base salary | | | To attract and retain experienced and highly skilled executives. | | | Fixed component of pay to provide financial stability, based on responsibilities, experience, individual contributions and peer company data. There were no base salary increases for our named executive officers during 2022. | | |
| Annual cash incentive bonuses | | | To promote and reward the achievement of key short-term strategic and business goals of the | | | Variable component of pay based on annual corporate quantitative and qualitative goals. We set rigorous goals | |
| Long-term equity incentive compensation | | | To encourage executives and other employees to focus on long-term Company performance; to drive long-term stockholder value; to promote retention; to reward outstanding Company and individual performance. | | | Typically subject to multi-year vesting based on performance achievement and continued For 2022, only Mr. Hoefelmann received an annual equity award. | |
Executive Compensation Practices
| ||||
What We Do | | | What We Don’t Do | |
| ✓ | |||
✓ Offer market-competitive benefits for executives that are consistent with the rest of our employees | ||||
✓ Consult with an independent | | | × Allow hedging or pledging of equity × Allow for re-pricing of stock options without stockholder approval × Provide excessive perquisites × Provide supplemental executive retirement plans × Provide any excise tax gross-ups | |
| What We Do | | | What We Don’t Do | |
| compensation consultant on compensation levels and practices | ||||
✓ Maintain robust stock ownership guidelines | |||||
✓ Have a clawback policy that applies to cash and equity incentive compensation | |||||
✓ Hold an annual say-on-pay vote | | ||||
× Provide single-trigger severance arrangements | |
NASDAQNasdaq Rules. In making its recommendations regarding executive compensation, our Compensation Committee annually reviews the performance of our executives with our Chief Executive Officer, and our Chief Executive Officer makes recommendations to our Compensation Committee with respect to the appropriate base salary, annual incentive bonuses and performance measures, and grants of long-term equity incentive awards for each of our executives other(other than himself.himself). The Chairman of the Compensation Committee makes recommendations to the Compensation Committee with respect to the Chief Executive Officer’s compensation. The Compensation Committee makes its determination regarding executive compensation and then makes a recommendation to the Board for approval. The Board discusses the Compensation Committee’s recommendations and ultimately approves the compensation of the executive officers.employeesexecutives to achieve short and long-term results that are in the best interests of our stockholders, and a long-term commitment to our Company.stockholders.
Independent Compensation Consultant
Our Compensation Committee has analyzed whether the work of RadfordFW Cook raised any conflict of interest, taking into account relevant factors in accordance with SEC guidelines.guidelines and Nasdaq Rules. Based on its analysis, our Compensation Committee determined that the engagement of RadfordFW Cook does not create any conflict of interest pursuant to the SEC guidelines and NASDAQNasdaq Rules.
In evaluating
Our 2020 peer group was selected based on a balance of the following criteria:
size-appropriate companies that operate in similar industries;
companies against which we believe we compete for executive talent; and
public companies based in the United States whose compensation and financial data are available in proxy statements or through widely available compensation surveys.
It is important to note that while any one individual peer company will not be fully reflective of Plug Power’s size, business model and industry, the peer group, as a whole, aims to reasonably represent Plug Power’s competitive market for executive talent, business characteristics, and business stage.
Based on these criteria, our peer group for 2020, as approved by our Compensation Committee, was comprised of the following 22 companies:
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Based on data compiled by Radford at the time of the peer group review, our revenues and market capitalization margin were at the 12th and 49th percentiles, respectively, in relation to the peer group.
As an additional reference, our Compensation Committee also uses data from the Radford Global Technology executive compensation survey (the “Radford Survey”) to evaluate the competitive market generally when formulating its recommendation for the total direct compensation packages for our executive officers. The Radford Survey provides compensation market intelligence and is widely used within the technology industry.
Due Furthermore, due to the nature of our business, we also compete for executive talent with companies outside our peer group, including public companies that are larger and more established than we are or that possess greater resources than we do, and with smaller private companies that may be able to offer greater compensation potential.
Our talent competitors run the spectrum from market leading alternative technology companies, to deep pocketed legacy fossil fuel companies who are now embracing hydrogen, to the next generation of ambitious startups with the potential to be green unicorns who can offer lucrative incentive compensation packages.
| AeroVironment, Inc. | | | FuelCell Energy, Inc. | | | Rogers Corp. | |
| Ambarella International, L.P. | | | Generac Holdings Inc. | | | Semtech Corp. | |
| Ballard Power Systems, Inc. | | | Inphi Corp. | | | Silicon Laboratories, Inc. | |
| Bloom Energy Corp. | | | Lattice Semiconductor Corp. | | | SolarEdge Technologies, Inc. | |
| Brooks Automation, Inc. Solutions | | | MACOM Technology Holdings, Inc. | | | SunPower Corp. | |
| Chart Industries, Inc. | | | MaxLinear, Inc. | | | Sunrun Inc. | |
| Cree, Inc. | | | Monolithic Power Systems, Inc. | | | | |
| Enphase Energy, Inc. | | | Power Integrations, Inc. | | | | |
Looking ahead to 2021—Our peer group for 2021, as approved by our Compensation Committee, is comprised of the following 22 companies:
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Our revenues and market capitalization margin were at the 23rd and 100th percentiles, respectively, in relation to the peer group.
Role of Stockholder Say-on-Pay
We pay careful attention to any feedback we receive from our stockholders about our executive compensation program. At our 2020 Annual Meeting of Stockholders, we conducted our annual non-binding, advisory vote on the compensation of our named executive officers, commonly referred to as a “say-on-pay” vote, in accordance with the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. Approximately 81% of the votes cast by stockholders on this proposal were cast in support of the compensation paid to our named executive officers. Although the results of the say-on-pay vote are advisory and not binding on the Company, the Board or the Compensation Committee, we value the opinions of our stockholders and take the results of the say-on- pay vote into account when making decisions regarding the compensation of our named executive officers.
Our Executive Compensation Program
The primary components of our executive compensation program are base salary, annual cash incentive bonuses and long-term equity incentive compensation. Consistent with the emphasis we place on pay-for- performance, annual performance-based bonuses and long-term equity incentive compensation in the form of stock options, premium priced stock options and restricted stock constitute a significant portion of our total executive compensation.
Within the context of the overall objectives of our compensation programs, our Compensation Committee and Board of Directors determined the specific amounts of compensation to be paid to each of our executives in 2020 based on a number of factors, including:
Our executives’ and Company performance during 2020 in general and as measured against pre- established performance goals;
The nature, scope and level of our executives’ responsibilities;
Our executives’ effectiveness in leading the Company’s initiatives to increase customer and stockholder value, productivity and revenue growth;
The individual experience and skills of, and expected contributions from, our executives;
Our executive’s contribution to the Company’s commitment to corporate responsibility, including our executive’s success in creating a culture of unyielding integrity and compliance with applicable law and the Company’s ethics policies;
The amounts of compensation being paid to our other executives;
Our executives’ contribution to our business performance and financial results;
Our executives’ historical compensation at our Company; and
Any contractual commitments we have made to our executives regarding compensation.
Each of the primary elements of our executive compensation is discussed in detail below and the compensation paid to our named executive officers in 20202022 is discussed under each element. In the descriptions below, we have identified particular compensation objectives whichthat we have designed our executive compensation programs to serve; however, we have designed our compensation programs to complement each other and to collectively serve all of our executive compensation objectives described above. Accordingly, whether or not specifically mentioned below, we believe that, as a part of our overall executive compensation, each element to a greater or lesser extent serves each of our objectives.
2022 Base Salary
Name | | | 2021 Base Salary ($)(1) | | | 2022 Base Salary ($)(1) | | | Increase (%) | | |||||||||
Andrew J. Marsh | | | | | 750,000 | | | | | | 750,000 | | | | | | — | | |
Paul B. Middleton | | | | | 400,000 | | | | | | 400,000 | | | | | | — | | |
Gerard L. Conway, Jr. | | | | | 400,000 | | | | | | 400,000 | | | | | | — | | |
Jose Luis Crespo | | | | | 400,000 | | | | | | 400,000 | | | | | | — | | |
Name | | | 2021 Base Salary ($)(1) | | | 2022 Base Salary ($)(1) | | | Increase (%) | | |||||||||
Dirk Ole Hoefelmann | | | | | 400,000 | | | | | | 400,000 | | | | | | — | | |
Keith Schmid | | | | | 400,000 | | | | | | 400,000 | | | | | | — | | |
Sanjay K. Shrestha | | | | | 400,000 | | | | | | 400,000 | | | | | | — | | |
Name | 2019 Base Salary ($) | 2020 Base Salary ($)(1) | Increase (%) | |||||||||||
Andrew J. Marsh | 600,000 | 676,442 | 12.7 | % | • Mr. Marsh’s last salary increase was in 2014 | |||||||||
Paul B. Middleton | 375,000 | 387,188 | 3.3 | % | • Mr. Middleton’s last salary increase was in 2014 | |||||||||
Sanjay K, Shrestha | 306,538 | 338,222 | 10.3 | % | • Mr. Shrestha’s first salary hire in 2019 to reflect additional responsibilities in connection with leadership of our Energy Solutions Business | |||||||||
Keith C. Schmid | 391,000 | 393,317 | 2.5 | % | • Mr. Schmid’s last salary increase was in 2015 | |||||||||
Jose Luis Crespo | 220,000 | 227,692 | 3.5 | % | • Mr. Crespo’s last salary increase was in 2014 |
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his employment terminated effective April 1, 2023.
below sets forth, for each named executive officer,For 2022, the threshold, target and stretch annual bonus opportunity both as a percentagefor each of theour named executive officer’s year-endofficers for 2022 was 100% of base salary, with threshold set at 65% of base salary and in dollars.
Name | 2020 Threshold Annual Bonus (%) | 2020 Threshold Annual Bonus ($) | 2020 Target Annual Bonus (%) | 2020 Target Annual Bonus ($) | 2020 Stretch Annual Bonus (%) | 2020 Stretch Annual Bonus ($) | ||||||||||||||||||
Andrew J. Marsh | 65 | % | 487,500 | 100 | % | 750,000 | 135 | % | 1,012,500 | |||||||||||||||
Paul B. Middleton | 65 | % | 253,500 | 100 | % | 390,000 | 135 | % | 526,500 | |||||||||||||||
Sanjay K. Shrestha | 65 | % | 243,750 | 100 | % | 375,000 | 135 | % | 506,250 | |||||||||||||||
Keith C. Schmid | 65 | % | 260,000 | 100 | % | 400,000 | 135 | % | 540,000 | |||||||||||||||
Jose Luis Crespo | 100 | % | 230,000 | 200 | % | 460,000 | 400 | % | 920,000 |
At the beginningstretch set at 135% of each yearbase salary.
Company Metric | | | Weighting | | | Rationale for Metric | |
Revenue | | | 30% | | | Revenue is an important measure of topline performance. | |
Gross Margin | | | 30% | | | Gross Margin is a measure of the Company’s profitability, based on net sales less the cost of goods sold, including the cost of carrying inventory. | |
Key Strategic Initiatives | | | 40% | | | Key strategic initiatives reflect our successful execution of events that are critical for our continued growth and long-term success. For 2022, the Compensation Committee established the following five strategic initiatives, of which four were achieved: × Green Hydrogen — Commission over 70 tons per day and start construction for >130 tons per day of new green hydrogen by year end ✓ Build bookings and agreements over $2.5 billion in 2022 ✓ Identify transformative opportunities and partnerships that can dramatically impact Plug Power ✓ Develop/mobilize global sourcing strategy with roadmap for centers of excellence and capacity outline to deliver a five-year strategic plan ✓ Service roadmap relating to certain pricing goals and fuel cells deployment at material handling sites | |
2020 Annual Incentive Goals | Relative Weighting | Actual Achievement for 2020 (as a % of target) | Weighted Performance | |||||||||
Gross Billings | ||||||||||||
Threshold: $230 Million | ||||||||||||
Target: $310 Million | 35 | % | 126 | % | 44 | % | ||||||
Stretch: $341 Million | ||||||||||||
Adjusted Operating EBITDA | ||||||||||||
Threshold: $27 Million | ||||||||||||
Target: $36 Million | 35 | % | 108 | % | 38 | % | ||||||
Stretch: $48.5 Million | ||||||||||||
Key Strategic Initiatives | ||||||||||||
Threshold: Three | ||||||||||||
Target: Four | 30 | % | 135 | % | 40.5 | % | ||||||
Stretch: Five | ||||||||||||
2020 Company Goal Achievement | 100 | % | 122.5 | % |
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| | | | Weight | | | Threshold | | | Target | | | Stretch | | | Actual Performance | | | Weighted Performance % | |
| Payout % | | | | | | 65% | | | 100% | | | 135% | | | | | | | |
| Revenue | | | 30% | | | $850 million | | | $925 million | | | $965 million | | | $701 million | | | 0% | |
| Gross Margin | | | 30% | | | $32 million | | | $50 million | | | $60 million | | | $(194 million) | | | 0% | |
| Key Strategic Initiatives | | | 40% | | | 3 | | | 4 | | | 5 | | | 4 | | | 40% | |
| Earned Payout as a Percentage of Target: 16% | |
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After completionNotwithstanding the partial achievement of the fiscal year, initiallypre-determined corporate metrics, after review and discussion of the Chief Executive Officeroverall global market and other members of management, as appropriate, make a recommendation tothe Company’s actual financial performance, the Compensation Committee for each executive’s bonus amount based the level of attainment of each of the Company goals (with the exception of the Chief Executive Officer himself whose level of attainment is evaluated by the Compensation Committee directly).
The Compensation Committee determined the 2020 annual cash incentive awards fornot to pay bonuses to the named executive officers using the following framework:
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New multi-site customer in material handling
Commencing development of the Rochester Innovation Center
Launching large scale green hydrogen platform
Establishing pilot program with three large fuel cell electric vehicles’ customers
Establishing a strategic relationship with a large original equipment manufacturer/fuel provider
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The Board, after review and discussion and recommendation from the Compensation Committee, determined the final level of attainment for each of the performance goals and the amount of each executive’s annual incentive bonus. The actual cash incentive bonus amounts paid to our2022.
Name | 2020 Target Bonus ($) | 2020 Financial/ Strategic Performance Achievement (%) | 2020 Recognition for Personal Contribution (%) | 2020 Actual Bonus Payment ($) | 2020 Bonus Payment (% of 2020 Target Bonus Opportunity) | |||||||||||||||
Andrew J. Marsh | 750,000 | 122.5 | % | 77.5 | % | 1,500,000 | 200 | % | ||||||||||||
Paul B. Middleton | 390,000 | 122.5 | % | 77.5 | % | 780,000 | 200 | % | ||||||||||||
Sanjay K. Shrestha | 375,000 | 122.5 | % | 77.5 | % | 750,000 | 200 | % | ||||||||||||
Keith C. Schmid | 400,000 | 122.5 | % | 77.5 | % | 800,000 | 200 | % | ||||||||||||
Jose Luis Crespo | 460,000 | 122.5 | % | 77.5 | % | 920,000 | 200 | % |
Long-Term Equity Incentive Compensation
Historically,2022, we have granted long-term equity incentive awards only to Mr. Hoefelmann in the form of 100,000 restricted shares of common stock options and restricted stockan option to executives as partpurchase 100,000 shares of our total compensation package. In 2020, we chose to use a combinationcommon stock, all of stock options, premium priced stock options, and restricted stock. Consistent with our emphasis on pay-for-performance, these awards represent a significant portionwhich were forfeited upon his termination of total executive compensation. Based on the stage of our Company’s development and the incentives we aim to provide to our executives, we have chosen to use either stock options or a combination of stock options and restricted stock for our long-term equity incentive awards. Our decisions regarding the amount and type of long-term equity incentive compensation and relative weighting of these awards among total executive compensation are based on our understanding of market practices of similarly situated companies and our negotiations with our executives in connection with their initial employment or promotion by our Company.
Stock option awards and premium priced stock option awards provide our executive officers with the right to purchase shares of Common Stock at a fixed exercise price typically for a period of up to ten years. Stock options generally vest over three years, beginning with one-third vesting on the first anniversary of the grant date, one-third vesting on the second anniversary of the grant date and the final one-third vesting on the third anniversary of the grant date, subject to continued service to the Company and acceleration in certain circumstances. Stock option awards are made pursuant to our Third Amended and Restated 2011 Stock Option and Incentive Plan (the “2011 Plan”). Except as may otherwise be provided in the applicable stock option award agreement, stock option awards become fully exercisable upon a “change of control” (as defined in the 2011 Plan). The exercise price of each stock option is equal to, or, in the case of premium priced stock options, in excess of, the closing price of Common Stock on the NASDAQ Capital Market as of the option grant date.
Restricted stock awards provide our executive officers with a long-term incentive alternative to the stock option awards. Restricted stock awards generally vest in equal annual installments over three years from the date of grant, subject to continued employment with the Company.
We consider a number of factors in determining the number of shares subject to stock options and the number of shares of restricted stock, if any, to grant to our executives, including:
the number of shares subject to, and exercise price of, outstanding options, both vested and unvested, held by our named executive officers and the number of shares subject to unvested restricted stock awards held by our named executive officers;
the vesting schedule of the unvested stock options and restricted stock awards held by our named executive officers; and
the amount and percentage of our total equity held by our named executive officers.
The table below sets forth information regarding stock options and premium priced stock options (reflecting a 17.5% premium above the grant date exercise price) granted to our named executive officers in 2020:
Name | Number of Shares Subject to Premium Priced Stock Options (#) | Exercise Price Per Share of 17.5% Premium Priced Stock Options ($) | Number of Shares Subject to Non- Premium Priced Stock Options) (#) | Exercise Price Per Share of Non-Premium Priced Stock Options ($) | ||||||||||||
Andrew J. Marsh | 275,000 | 15.51 | 275,000 | 13.20 | ||||||||||||
Paul B. Middleton | 100,000 | 15.51 | 100,000 | 13.20 | ||||||||||||
Sanjay K. Shrestha | 112,500 | 15.51 | 112,500 | 13.20 | ||||||||||||
Keith C. Schmid | 100,000 | 15.51 | 100,000 | 13.20 | ||||||||||||
Jose Luis Crespo | — | — | 175,000 | 13.20 |
The table below sets forth information regarding restricted stock awards granted to our named executive officers in 2020:
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Broad-Based Benefits
Relationship of Executive Compensation to Risk
and Pledging
account; (iv) pledging Company securities as collateral for a loan (or modifying an existing pledge); or (v) donating or making any other transfer of Company securities without consideration when the donating employee, director, or executive officer is not permitted to trade, unless the donee agrees not to sell the shares until the donating employee, director, or executive officer is permitted to sell.
Generally, Section 162(m)
Pursuant to the Tax Cuts and Jobs Act of 2017, for taxable years beginning after December 31, 2017, the remuneration of a public corporation’s principal financial officer is also subject to the deduction limit. In addition, subject to certain transition rules (which apply to remuneration provided pursuant to written binding contracts which were in effect on November 2, 2017 and which are not subsequently materially modified), for taxable years beginning after December 31, 2017, the exemption from the deduction limit for “performance-based compensation” is no longer available. Consequently, for fiscal years beginning after December 31, 2017, all remuneration in excess of $1 million paid to a specified executive will not be deductible.
In designing our executive compensation program and determining the compensation of our executive officers, including our named executive officers, the Compensation Committee considers a variety of factors, including the potential impact of the Section 162(m) deduction limit. However, the Compensation Committee will not necessarily limit executive compensation to that which is or may be deductible under Section 162(m) of the Code. The Compensation Committee will consider various alternatives to preserving the deductibility of compensation payments and benefits to the extent consistent with its compensation goals. The Compensation Committee believes that our stockholders’ interests are best served if its discretion and flexibility in awarding compensation is not restricted, even though some compensation awards may result in non-deductible compensation expense.
Taxation of “Parachute” Payments
Sections 280G and 4999 of the Code provide that executive officers and directors who hold significant equity interests and certain other service providers may be subject to significant additional taxes if they receive payments or benefits in connection with a change in control of the Company that exceed certain prescribed limits, and that the Company (or a successor) may forfeit a deduction on the amounts subject to this additional tax. We have not agreed to provide any executive officer, including any named executive officers, or director with a “gross- up” or other reimbursement payment for any tax liability that the executive officer or director might owe as a result of the application of Sections 280G or 4999 of the Code.
Accounting for Stock-Based Compensation
In general, the Board and the Compensation Committee design compensation to attract, retain and motivate a superior executive team, reward individual performance, relate compensation to Company goals and objectives and align the interests of the executive officers with those of the Company’s stockholders. The Board and the Compensation Committee rely upon their judgment about each individual—and not on rigid guidelines or formulas, or short-term changes in business performance—in determining the amount and mix of compensation elements for each senior executive officer. Key factors affecting such judgments include: the executive’s performance compared to the goals and objectives established for the executive at the beginning of the year; the nature, scope and level of the executive’s responsibilities; the executive’s contribution to the Company’s financial results; the executive’s effectiveness in leading the Company’s initiatives to increase customer value, productivity and revenue growth; and the executive’s contribution to the Company’s commitment to corporate responsibility, including the executive’s success in creating a culture of unyielding integrity and compliance with applicable law and the Company’s ethics policies.
(Chair)
George C. McNamee
Johannes M. Roth
Compensation Committee Interlocks and Insider Participation
2020
Name and Principal Position | Year | Salary ($) | Bonus ($)(1) | Stock Awards ($)(2) | Option Awards ($)(3) | Non-Equity Incentive Plan Compensation ($)(4) | All Other Compensation ($) | Total ($) | ||||||||||||||||||||||||||||||||
Andrew J. Marsh | ||||||||||||||||||||||||||||||||||||||||
President, Chief Executive Officer and Director | 2020 | 676,442 | 581,250 | 7,260,000 | 4,178,075 | (5) | 918,750 | 15,555 | (6)(7) | 13,630,072 | ||||||||||||||||||||||||||||||
2019 | 600,000 | — | 1,449,500 | 999,700 | (8) | 631,200 | 15,170 | 3,695,570 | ||||||||||||||||||||||||||||||||
2018 | 600,000 | — | 980,000 | 775,000 | 300,000 | 14,920 | 2,669,920 | |||||||||||||||||||||||||||||||||
Paul B. Middleton | ||||||||||||||||||||||||||||||||||||||||
Chief Financial Officer and Senior Vice President | 2020 | 387,188 | 302,250 | 2,640,000 | 1,519,300 | (9) | 477,750 | 15,555 | (6)(7) | 5,342,043 | ||||||||||||||||||||||||||||||
2019 | 375,000 | — | 557,500 | 384,500 | (10) | 394,500 | 15,170 | 1,726,670 | ||||||||||||||||||||||||||||||||
2018 | 375,000 | — | 392,000 | 310,000 | 187,500 | 14,920 | 1,279,420 | |||||||||||||||||||||||||||||||||
Sanjay K. Shrestha | ||||||||||||||||||||||||||||||||||||||||
Chief Strategy Officer | 2020 | 338,222 | 290,625 | 2,970,000 | 1,709,213 | (11) | 459,375 | 15,361 | (6)(12) | 5,782,796 | ||||||||||||||||||||||||||||||
2019 | (13) | 306,538 | — | 346,500 | 249,150 | 300,000 | 9,033 | 1,211,221 | ||||||||||||||||||||||||||||||||
Keith C. Schmid | ||||||||||||||||||||||||||||||||||||||||
Chief Operating Officer and Senior Vice President | 2020 | 393,317 | 310,000 | 2,640,000 | 1,519,300 | (9) | 490,000 | 15,555 | (6)(7) | 5,368,172 | ||||||||||||||||||||||||||||||
2019 | 391,000 | — | 557,500 | 384,500 | (10) | 411,332 | 15,170 | 1,759,502 | ||||||||||||||||||||||||||||||||
2018 | 391,000 | — | 490,000 | 387,500 | 195,500 | 14,920 | 1,478,920 | |||||||||||||||||||||||||||||||||
Jose Luis Crespo | ||||||||||||||||||||||||||||||||||||||||
Vice President-Global Sales | 2020 | 227,692 | 356,501 | 2,310,000 | 1,368,150 | 563,500 | 15,026 | (6)(14) | 4,840,869 | |||||||||||||||||||||||||||||||
2019 | 220,000 | — | 446,000 | 307,600 | (5) | 505,340 | 14,668 | 1,493,608 | ||||||||||||||||||||||||||||||||
2018 | 220,000 | — | 392,000 | 310,000 | 220,000 | 14,691 | 1,156,691 |
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Name and Principal Position | | | Year | | | Salary ($) | | | Bonus ($) | | | Stock Awards ($)(1) | | | Option Awards ($)(2) | | | Non-Equity Incentive Plan Compensation ($)(3) | | | All Other Compensation ($) | | | Total ($) | | ||||||||||||||||||||||||
Andrew J. Marsh President, Chief Executive Officer and Director | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 750,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,555(6) | | | | | | 766,555 | | | ||
| | | 2021 | | | | | | 750,000 | | | | | | — | | | | | | — | | | | | | 50,800,000 | | | | | | 682,500 | | | | | | 15,805 | | | | | | 52,248,305 | | | ||
| | | 2020 | | | | | | 676,442 | | | | | | 581,250 | | | | | | 7,260,000 | | | | | | 4,178,075 | | | | | | 918,750 | | | | | | 15,555 | | | | | | 13,630,072 | | | ||
Paul B. Middleton Chief Financial Officer and Executive Vice President | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,555(6) | | | | | | 416,555 | | | ||
| | | 2021 | | | | | | 392,692 | | | | | | — | | | | | | — | | | | | | 25,400,000 | | | | | | 364,000 | | | | | | 15,805 | | | | | | 26,172,497 | | | ||
| | | 2020 | | | | | | 387,188 | | | | | | 302,250 | | | | | | 2,640,000 | | | | | | 1,519,300 | | | | | | 477,750 | | | | | | 15,555 | | | | | | 5,342,043 | | | ||
Gerard L. Conway, Jr. General Counsel, Corporate Secretary and Executive Vice President | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,555(6) | | | | | | 416,555 | | | ||
| | | 2021 | | | | | | 363,462 | | | | | | — | | | | | | — | | | | | | 22,860,000 | | | | | | 364,000 | | | | | | 15,743 | | | | | | 23,603,205 | | | ||
| | | 2020 | | | | | | 345,481 | | | | | | 203,437 | | | | | | 2,310,000 | | | | | | 1,329,388 | | | | | | 321,563 | | | | | | 15,429 | | | | | | 4,525,298 | | | ||
Jose Luis Crespo General Manager, Applications and Executive Vice President | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,555(6) | | | | | | 416,555 | | | ||
| | | 2021 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | 16,510,000 | | | | | | 364,000 | | | | | | 15,805 | | | | | | 17,289,805 | | | ||
| | | 2020 | | | | | | 227,692 | | | | | | 356,501 | | | | | | 2,310,000 | | | | | | 1,368,150 | | | | | | 563,500 | | | | | | 15,026 | | | | | | 4,840,869 | | | ||
Dirk Ole Hoefelmann(4) Former General Manager, Electrolyzers and Executive Vice President | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 400,000 | | | | | | — | | | | | | 1,862,000 | | | | | | 1,242,000 | | | | | | — | | | | | | 27,324(6) | | | | | | 3,531,324 | | | ||
| | | 2021 | | | | | | 386,616 | | | | | | 100,000(5) | | | | | | 10,952,500 | | | | | | 6,936,500 | | | | | | 333,667 | | | | | | 15,637 | | | | | | 18,724,920 | | | ||
Keith Schmid Executive Vice President, Special Projects | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,555(6) | | | | | | 416,555 | | | ||
| | | 2021 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | 16,510,000 | | | | | | 364,000 | | | | | | 15,805 | | | | | | 17,289,805 | | | ||
| | | 2020 | | | | | | 393,317 | | | | | | 310,000 | | | | | | 2,640,000 | | | | | | 1,519,300 | | | | | | 490,000 | | | | | | 15,555 | | | | | | 5,368,172 | | | ||
Sanjay K. Shrestha General Manager, Energy Solutions, Chief Strategy Officer, and Executive Vice President | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 2022 | | | | | | 400,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 16,555(6) | | | | | | 416,555 | | | ||
| | | 2021 | | | | | | 381,731 | | | | | | — | | | | | | — | | | | | | 25,400,000 | | | | | | 364,000 | | | | | | 15,805 | | | | | | 26,161,536 | | | ||
| | | 2020 | | | | | | 338,222 | | | | | | 290,625 | | | | | | 2,970,000 | | | | | | 1,709,213 | | | | | | 459,375 | | | | | | 15,361 | | | | | | 5,782,796 | | |
For 2020, the annual total compensation of Mr. Marsh, our PEO, of $13,630,072 as shown in the Summary Compensation Table above, was approximately 203 times the annual total compensation of $67,062 ofidentified the median employee calculated in the same manner.using our employee population on December 31, 2022 (including all employees, whether employed on a full-time, part-time, seasonal or temporary basis). We identified the median employee using the amount reported as compensation on the employee’s Form W-2 for the year ended December 31, 20202021 for all individuals who were employed by us on December 31, 2020,2022, the last day of our payroll year (whether employed on a full-time, part-time, or seasonal basis).
Our median employee compensation as calculated using Summary Compensation Table requirements was $61,163. Mr. Marsh’s compensation as reported in the Summary Compensation Table was $766,555. Therefore, our Chief Executive Officer pay ratio is approximately 12.5:1.
Estimated Future Payouts | All Other Stock Awards: Number of Shares or Stock Units(#)(3) | All Other Option Awards: Number of Securities Underlying Options (#)(4) | Exercise or Base Price of Option Awards ($/Sh)(5) | Grant Date Fair Value of Stock and Option Awards(6)($) | |||||||||||||||||||||||||||||||
Name | Grant Date(1) | Threshold ($) | Target ($) | ||||||||||||||||||||||||||||||||
Andrew J. Marsh | — | 487,500 | 750,000 | ||||||||||||||||||||||||||||||||
09/28/20 | — | — | 550,000 | — | 7,260,000 | ||||||||||||||||||||||||||||||
09/28/20 | — | — | — | 275,000 | 13.20 | 2,149,950 | |||||||||||||||||||||||||||||
09/28/20 | — | — | — | 275,000 | (7) | 15.51 | 2,028,125 | ||||||||||||||||||||||||||||
Paul B. Middleton | 253,500 | 390,000 | — | ||||||||||||||||||||||||||||||||
09/28/20 | — | — | 200,000 | — | 2,640,000 | ||||||||||||||||||||||||||||||
09/28/20 | — | — | — | 100,000 | 13.20 | 781,800 | |||||||||||||||||||||||||||||
09/28/20 | — | — | — | 100,000 | (7) | 15.51 | 737,500 | ||||||||||||||||||||||||||||
Sanjay K. Shrestha | — | 243,750 | 375,000 | ||||||||||||||||||||||||||||||||
09/28/20 | — | — | 225,000 | — | 2,970,000 | ||||||||||||||||||||||||||||||
09/28/20 | — | — | — | 112,500 | 13.20 | 879,525 | |||||||||||||||||||||||||||||
09/28/20 | — | — | — | 112,500 | (7) | 15.51 | 829,688 | ||||||||||||||||||||||||||||
Keith C. Schmid | — | 260,000 | 400,000 | ||||||||||||||||||||||||||||||||
09/28/20 | — | — | 200,000 | — | 2,640,000 | ||||||||||||||||||||||||||||||
09/28/20 | — | — | — | 100,000 | 13.20 | 781,800 | |||||||||||||||||||||||||||||
09/28/20 | — | — | — | 100,000 | (7) | 15.51 | 737,500 | ||||||||||||||||||||||||||||
Jose Luis Crespo | — | 230,000 | 460,000 | ||||||||||||||||||||||||||||||||
09/28/20 | — | — | 175,000 | — | 2,310,000 | ||||||||||||||||||||||||||||||
09/28/20 | — | — | — | 175,000 | 13.20 | 1,368,150 | |||||||||||||||||||||||||||||
09/28/20 | — | — | — |
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| | | | | | | | | Estimated Future Payouts Under Non- Equity Incentive Plan Awards(2) | | | All Other Stock Awards: Number of Shares of Stock or Units (#)(3) | | | All Other Option Awards: Number of Securities Underlying Options (#)(4) | | | Exercise or Base Price of Option Awards ($/Share)(5) | | | Grant Date Fair Value of Stock and Option Awards ($)(6) | | |||||||||||||||||||||||||||
Name | | | Grant Date(1) | | | Threshold ($) | | | Target ($) | | | Maximum ($) | | ||||||||||||||||||||||||||||||||||||
Andrew J. Marsh | | | | | — | | | | | | 487,500 | | | | | | 750,000 | | | | | | 1,012,500 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Paul B. Middleton | | | | | — | | | | | | 260,000 | | | | | | 400,000 | | | | | | 540,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Gerard L. Conway, Jr. | | | | | — | | | | | | 260,000 | | | | | | 400,000 | | | | | | 540,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Jose Luis Crespo | | | | | — | | | | | | 260,000 | | | | | | 400,000 | | | | | | 540,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Dirk Ole Hoefelmann | | | | | — | | | | | | 260,000 | | | | | | 400,000 | | | | | | 540,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| | | 10/17/2022 | | | | | | — | | | | | | — | | | | | | — | | | | | | 100,000 | | | | | | — | | | | | | — | | | | | | 1,862,000 | | | ||
| | | 10/17/2022 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 100,000 | | | | | | 18.62 | | | | | | 1,242,000 | | | ||
Keith Schmid | | | | | — | | | | | | 260,000 | | | | | | 400,000 | | | | | | 540,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Sanjay K. Shrestha | | | | | — | | | | | | 260,000 | | | | | | 400,000 | | | | | | 540,000 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Option Awards(1)(2) | Stock Awards(1)(2) | ||||||||||||||||||||||||||||||||||
Name | Grant Date | Number of Securities Underlying Unexercised Options (#) Exercisable | Number of Securities Underlying Unexercised Options (#) Unexercisable | Option Exercise Price ($) | Option Expiration Date | Number of Shares or Units of Stock That Have Not Vested(#) | Market Value of Shares or Units of Stock That Have Not Vested($)(3) | ||||||||||||||||||||||||||||
Andrew J. Marsh | 4/13/11 | 106,600 | — | 6.10 | 4/13/21 | — | — | ||||||||||||||||||||||||||||
8/31/17 | 466,668 | — | 2.14 | 8/31/27 | — | — | |||||||||||||||||||||||||||||
8/28/18 | — | 166,667 | 1.96 | 8/28/28 | — | — | |||||||||||||||||||||||||||||
8/28/18 | — | — | — | — | 166,667 | 5,651,678 | |||||||||||||||||||||||||||||
8/19/19 | — | 216,667 | 2.23 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
8/19/19 | — | — | — | — | 433,333 | 14,694,322 | |||||||||||||||||||||||||||||
8/19/19 | — | 216,667 | 2.62 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | 275,000 | 13.20 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | — | — | — | 550,000 | 18,650,500 | |||||||||||||||||||||||||||||
9/28/20 | — | 275,000 | 15.51 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
Paul B. Middleton | 8/28/18 | — | 66,667 | 1.96 | 8/28/28 | — | — | ||||||||||||||||||||||||||||
8/28/18 | — | — | — | — | 66,667 | 2,260,678 | |||||||||||||||||||||||||||||
8/19/19 | — | 83,333 | 2.23 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
8/19/19 | — | — | — | — | 166,667 | 5,651,678 | |||||||||||||||||||||||||||||
8/19/19 | — | 83,333 | 2.62 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | 100,000 | 13.20 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | — | — | — | 200,000 | 6,782,000 | |||||||||||||||||||||||||||||
9/28/20 | — | 100,000 | 15.51 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
Sanjay K. Shrestha | 5/9/19 | — | 100,000 | 2.31 | 5/09/29 | — | — | ||||||||||||||||||||||||||||
5/9/19 | — | — | — | — | 100,000 | 3,391,000 | |||||||||||||||||||||||||||||
9/28/20 | — | 112,500 | 13.20 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | — | — | — | 225,000 | 7,629,750 | |||||||||||||||||||||||||||||
9/28/20 | — | 112,500 | 15.51 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
Keith C. Schmid | 10/23/13 | 100,000 | — | 0.57 | 10/23/23 | — | — | ||||||||||||||||||||||||||||
8/28/18 | 1 | 83,333 | 1.96 | 8/28/28 | — | — | |||||||||||||||||||||||||||||
8/28/18 | — | — | — | — | 83,333 | 2,825,822 | |||||||||||||||||||||||||||||
8/19/19 | 41,667 | 83,333 | 2.23 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
8/19/19 | — | — | — | — | 166,667 | 5,651,678 | |||||||||||||||||||||||||||||
8/19/19 | 41,667 | 83,333 | 2.62 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | 100,000 | 13.20 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | — | — | — | 200,000 | 6,782,000 | |||||||||||||||||||||||||||||
9/28/20 | — | 100,000 | 15.51 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
Jose Luis Crespo | 8/28/18 | 1 | 66,667 | 1.96 | 8/28/28 | — | — | ||||||||||||||||||||||||||||
8/28/18 | — | — | — | — | 66,667 | 2,260,678 | |||||||||||||||||||||||||||||
8/19/19 | — | 66,667 | 2.23 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
8/19/19 | — | — | — | — | 133,333 | 4,521,322 | |||||||||||||||||||||||||||||
8/19/19 | — | 66,667 | 2.62 | 8/19/29 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | 175,000 | 13.20 | 9/28/30 | — | — | |||||||||||||||||||||||||||||
9/28/20 | — | — | — | — | 175,000 | 5,934,250 |
| | | | | | | | | Option Awards(1) | | | Stock Awards(1) | | ||||||||||||||||||||||||||||||||||||
Name | | | Grant Date | | | Number of Securities Underlying Unexercised Options (#) Exercisable | | | Number of Securities Underlying Unexercised Options (#) Unexercisable(2) | | | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#)(3) | | | Option Exercise Price ($) | | | Option Expiration Date | | | Number of Shares or Units of Stock That Have Not Vested (#) | | | Market Value of Shares or Units of Stock That Have Not Vested($)(4) | | ||||||||||||||||||||||||
Andrew J. Marsh | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 8/28/18 | | | | | | 166,667 | | | | | | — | | | | | | — | | | | | | 1.96 | | | | | | 8/28/28 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 216,667 | | | | | | — | | | | | | — | | | | | | 2.23 | | | | | | 9/19/29 | | | | | | — | | | | | | — | | | ||
| | | 9/19/19 | | | | | | 216,667 | | | | | | — | | | | | | — | | | | | | 2.62 | | | | | | | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | 183,334 | | | | | | 91,666 | | | | | | — | | | | | | 13.20 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | — | | | | | | | | | | | | — | | | | | | — | | | | | | — | | | | | | 183,333 | | | | | | 2,267,829 | | | ||
| | | 9/28/20 | | | | | | 183,334 | | | | | | 91,666 | | | | | | — | | | | | | 15.51 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | 333,333 | | | | | | 666,667 | | | | | | — | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | — | | | | | | — | | | | | | 3,000,000 | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
Paul B. Middleton | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 8/28/18 | | | | | | 66,667 | | | | | | — | | | | | | — | | | | | | 1.96 | | | | | | 8/28/28 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 83,333 | | | | | | — | | | | | | — | | | | | | 2.23 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 83,333 | | | | | | — | | | | | | — | | | | | | 2.62 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | 66,667 | | | | | | 33,333 | | | | | | — | | | | | | 13.20 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 66,667 | | | | | | 824,671 | | | ||
| | | 9/28/20 | | | | | | 66,667 | | | | | | 33,333 | | | | | | — | | | | | | 15.51 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | 211,111 | | | | | | 422,222 | | | | | | — | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | — | | | | | | — | | | | | | 1,366,667 | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
Gerard L. Conway, Jr. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 8/28/18 | | | | | | 66,667 | | | | | | — | | | | | | — | | | | | | 1.96 | | | | | | 8/28/28 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 66,667 | | | | | | — | | | | | | — | | | | | | 2.23 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 66,667 | | | | | | — | | | | | | — | | | | | | 2.62 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | 58,333 | | | | | | 29,167 | | | | | | — | | | | | | 13.20 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 58,333 | | | | | | 721,579 | | | ||
| | | 9/28/20 | | | | | | 58,333 | | | | | | 29,167 | | | | | | — | | | | | | 15.51 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | 190,000 | | | | | | 380,000 | | | | | | — | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | — | | | | | | — | | | | | | 1,230,000 | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | |
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Options Exercised
| | | | | | | | | Option Awards(1) | | | Stock Awards(1) | | ||||||||||||||||||||||||||||||||||||
Name | | | Grant Date | | | Number of Securities Underlying Unexercised Options (#) Exercisable | | | Number of Securities Underlying Unexercised Options (#) Unexercisable(2) | | | Equity Incentive Plan Awards: Number of Securities Underlying Unexercised Unearned Options (#)(3) | | | Option Exercise Price ($) | | | Option Expiration Date | | | Number of Shares or Units of Stock That Have Not Vested (#) | | | Market Value of Shares or Units of Stock That Have Not Vested($)(4) | | ||||||||||||||||||||||||
Jose Luis Crespo | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 8/28/18 | | | | | | 66,668 | | | | | | — | | | | | | — | | | | | | 1.96 | | | | | | 8/28/28 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 66,667 | | | | | | — | | | | | | — | | | | | | 2.23 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 66,667 | | | | | | — | | | | | | — | | | | | | 2.62 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | 137,223 | | | | | | 274,446 | | | | | | 888,331 | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | 116,667 | | | | | | 58,333 | | | | | | — | | | | | | 13.20 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 9/28/30 | | | | | | 58,333 | | | | | | 721,579 | | | ||
| | | 9/22/21 | | | | | | 137,223 | | | | | | 274,446 | | | | | | — | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | — | | | | | | — | | | | | | 888,331 | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
Dirk Ole Hoefelmann | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 3/3/21 | | | | | | 83,333 | | | | | | 166,667 | | | | | | — | | | | | | 43.81 | | | | | | 3/3/21 | | | | | | — | | | | | | — | | | ||
| | | 3/3/21 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 166,667 | | | | | | 2,061,671 | | | ||
| | | 10/17/22 | | | | | | — | | | | | | 100,000 | | | | | | — | | | | | | 18.62 | | | | | | 10/17/32 | | | | | | — | | | | | | — | | | ||
| | | 10/17/22 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 100,000 | | | | | | 1,237,000 | | | ||
Keith Schmid | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 8/28/18 | | | | | | 83,334 | | | | | | — | | | | | | — | | | | | | 1.96 | | | | | | 8/28/28 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 125,000 | | | | | | — | | | | | | — | | | | | | 2.23 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 8/19/19 | | | | | | 125,000 | | | | | | — | | | | | | — | | | | | | 2.62 | | | | | | 8/19/29 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | 66,667 | | | | | | 33,333 | | | | | | — | | | | | | 13.20 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 66,667 | | | | | | 824,671 | | | ||
| | | 9/28/20 | | | | | | 66,667 | | | | | | 33,333 | | | | | | — | | | | | | 15.51 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | 137,223 | | | | | | 274,446 | | | | | | — | | | | | | 26.92 | | | | | | — | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | — | | | | | | — | | | | | | 888,331 | | | | | | 26.92 | | | | | | — | | | | | | — | | | | | | — | | | ||
Sanjay K. Shrestha | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | 5/9/19 | | | | | | 100,000 | | | | | | — | | | | | | — | | | | | | 2.31 | | | | | | 5/9/29 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | 75,000 | | | | | | 37,500 | | | | | | — | | | | | | 13.20 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/28/20 | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 75,000 | | | | | | 927,750 | | | ||
| | | 9/28/20 | | | | | | 75,000 | | | | | | 37,500 | | | | | | — | | | | | | 15.51 | | | | | | 9/28/30 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | 211,111 | | | | | | 422,222 | | | | | | — | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | | ||
| | | 9/22/21 | | | | | | — | | | | | | — | | | | | | 1,366,667 | | | | | | 26.92 | | | | | | 9/22/28 | | | | | | — | | | | | | — | | |
Option Awards | Stock Awards | |||||||||||||||
Name | Number of Shares Acquired on Exercise | Value Realized on Exercise(1)($) | Number of Shares Acquired on Vesting | Value Realized on Vesting(1)($) | ||||||||||||
Andrew J. Marsh | 4,570,831 | 34,704,898 | 383,333 | 5,135,829 | ||||||||||||
Paul B. Middleton | 1,566,667 | 26,878,515 | 149,999 | 2,008,820 | ||||||||||||
Sanjay K. Shrestha | 50,000 | 467,618 | 50,000 | 215,500 | ||||||||||||
Keith C. Schmid | 2,016,666 | 36,728,171 | 166,667 | 2,226,671 | ||||||||||||
Jose Luis Crespo | 1,224,998 | 13,861,700 | 133,333 | 1,781,329 |
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2022.
| | | Stock Awards | | |||||||||
Name | | | Number of Shares Acquired on Vesting | | | Value Realized on Vesting(1)($) | | ||||||
Andrew J. Marsh | | | | | 400,001 | | | | | | 9,936,024 | | |
Paul B. Middleton | | | | | 149,999 | | | | | | 3,734,976 | | |
Gerard L. Conway, Jr. | | | | | 125,001 | | | | | | 3,100,524 | | |
Jose Luis Crespo | | | | | 125,001 | | | | | | 3,100,524 | | |
Dirk Ole Hoefelmann | | | | | 83,333 | | | | | | 1,650,827 | | |
Keith Schmid | | | | | 149,999 | | | | | | 3,734,976 | | |
Sanjay K. Shrestha | | | | | 125,000 | | | | | | 2,516,000 | | |
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(a) one (1) times annual base salary, and (b) one (1) times the annual incentive bonus for the immediately preceding fiscal year.
The agreement also provides that if, within twelve (12) months after a “Change in Control,” as defined in the agreement, the Company terminates Mr. Marsh’s employment without Cause or Mr. Marsh terminates his employment for Good Reason, then he is entitled to:
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In the case of Messrs. Crespo, Hoefelmann, Schmid and Shrestha, they are (or were, in the case of Mr. Hoefelmann) entitled to have their group health insurance extend through the end of the month in which the date of termination occurs and the Company will either provide a lump sum payment or a monthly subsidy equal to twelve (12) times the Company’s share of the monthly health insurance premium for the health insurance plan applicable on the date of termination.
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(i) receive a lump sum payment equal to 100% of, or in the case Mr. Shrestha 50% of, the sum of (i) his average annual base salary over the three (3) fiscal years immediately prior to the Change in Control (or the executive’s annual base salary in effect immediately prior to the Change in Control, if higher) and (ii) his average annual bonus over the three (3) fiscal years prior to the Change in Control (or the executive’s annual bonus in effect immediately prior to the Change in Control, if higher), (ii) accelerated vesting of his stock options and other stock-based awards that would have vested had he remained an active employee for twelve (12) months following his termination (or, in the case of Mr. Middleton, full accelerated vesting of all stock options and other stock-based awards held by him), (iii) subject to the executive’s copayment of premium amounts at the active employees’ rate, continued payment by the Company of its share of the premiums for the executive’s participation in the Company’s group health plans for twelve (12) months following the date of termination for Messrs. Middleton and Conway or, in the case of Messrs. Crespo, Hoefelmann, Schmid and Shrestha, they are (or were, in the case of Mr. Hoefelmann) entitled to have their group health insurance extend through the end of the month in which the date of termination occurs and the Company will either provide a lump sum payment or monthly subsidy equal to twelve (12) times the Company’s share of the monthly health insurance premium for the health insurance plan applicable on the date of termination, and (iv) all reasonable legal and arbitration fees and expenses incurred in
Agreement referenced in the executive’s respective agreement or any non-compete, non-solicit or non-disclosure covenants in any agreement between the Company and such executive. We agreed to provide severance payments to such executives in these circumstances based on our negotiations with each of our executives at the time theyhe joined our Company, or as negotiated subsequent to hiring, and in order to provide a total compensation package that we believed to be competitive. Additionally, we believe that providing severance upon a termination of employment without Cause can help to encourage our executives to take the risks that we believe are necessary for our Company to succeed and also recognizes the longer hiring process typically involved in hiring a senior executive.
Shrestha — $281,337.
Pay Versus Performance Disclosure
| | | | | | | | | | | | | | | Average Summary Compensation Table Total for Non-PEO NEOs(2) | | | Average Compensation Actually Paid to Non-PEO NEOs(3) | | | Value of Initial Fixed $100 Investment Based on:(4) | | | GAAP Net I ncome ($mil.) | | | GAAP Revenue ($mil.) | | |||||||||||||||||||||
Year(1) | | | Summary Compensation Table Total for PEO(2) | | | Compensation Actually Paid to PEO(3) | | | Plug Power Total Stockholder Return | | | Peer Group Total Stockholder Return(5) | | ||||||||||||||||||||||||||||||||||||
2022 | | | | $ | 766,555 | | | | | $ | (75,973,705) | | | | | $ | 935,683 | | | | | $ | (26,246,111) | | | | | $ | 391 | | | | | $ | 190 | | | | | $ | (724) | | | | | $ | 701 | | |
2021 | | | | $ | 52,248,305 | | | | | $ | 3,988,254 | | | | | $ | 23,665,540 | | | | | $ | 11,696,569 | | | | | $ | 893 | | | | | $ | 274 | | | | | $ | (460) | | | | | $ | 502 | | |
2020 | | | | $ | 13,630,072 | | | | | $ | 80,721,434 | | | | | $ | 5,333,470 | | | | | $ | 27,607,125 | | | | | $ | 1,073 | | | | | $ | 282 | | | | | $ | (596) | | | | | $ | (93) | | |
| | | 2022 | | | 2021 | | | 2020 | | |||||||||||||||||||||||||||
| | | PEO | | | Average Non-PEO NEOs | | | PEO | | | Average Non-PEO NEOs | | | PEO | | | Average Non-PEO NEOs | | ||||||||||||||||||
Summary Compensation Table Total | | | | $ | 766,555 | | | | | $ | 935,683 | | | | | $ | 52,248,305 | | | | | $ | 23,665,540 | | | | | $ | 13,630,072 | | | | | $ | 5,333,470 | | |
Minus Change in Pension Value Reported in SCT for the Covered Year | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
Plus Pension Value Service Cost for the Covered Year | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
Minus Stock Award Value & Option Award Value Reported in SCT for the Covered Year | | | | $ | 0 | | | | | $ | 517,333 | | | | | $ | 50,800,000 | | | | | $ | 22,887,250 | | | | | $ | 11,438,075 | | | | | $ | 4,168,991 | | |
Plus Year End Fair Value of Equity Awards Granted During the Covered Year that Remain Outstanding and Unvested as of Last Day of the Covered Year | | | | $ | 0 | | | | | $ | 324,000 | | | | | $ | 52,156,620 | | | | | $ | 22,534,449 | | | | | $ | 32,956,000 | | | | | $ | 11,986,625 | | |
Plus Year over Year Change in Fair Value as of the Last Day of the Covered Year of Outstanding and Unvested Equity Awards Granted in Prior Years | | | | $ | (73,054,958) | | | | | $ | (25,617,390) | | | | | $ | (40,367,440) | | | | | $ | (9,546,769) | | | | | $ | 33,624,033 | | | | | $ | 11,020,441 | | |
Plus Fair Value as of Vesting Date of Equity Awards Granted and Vested in the Covered Year | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
Plus Year over Year Change in Fair Value as of the Vesting Date of Equity Awards Granted in Prior Years that Vested During the Covered Year | | | | $ | (3,685,302) | | | | | $ | (1,371,071) | | | | | $ | (9,249,231) | | | | | $ | (2,069,401) | | | | | $ | 11,949,404 | | | | | $ | 3,435,580 | | |
Minus Fair Value at the End of the Prior Year of Equity Awards that Failed to Meet Vesting Conditions in the Covered Year | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
Plus Value of Dividends or other Earnings Paid on Stock or Option Awards Not Otherwise Reflected in Fair Value or Total Compensation for the Covered Year | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
Compensation Actually Paid | | | | $ | (75,973,705) | | | | | $ | (26,246,111) | | | | | $ | 3,988,254 | | | | | $ | 11,696,569 | | | | | $ | 80,721,434 | | | | | $ | 27,607,125 | | |
Summary
The Board of Directors has adopted resolutions approving, and recommending that the stockholders approve, an amendment to the Amended and Restated Certificate of Incorporation of the Company to increase the number of authorized shares of Common Stock from 750,000,000 shares to 1,500,000,000 shares, an increase of 750,000,000 shares. The authorized capital stock of the Company currently consists of 750,000,000 shares of Common Stock and 5,000,000 shares of undesignated preferred stock, par value $0.01 per share. If the proposed amendment is approved, the authorized capital stock of the Company will consist of 1,500,000,000 shares of Common Stock and 5,000,000 shares of preferred stock, par value $0.01 per share. The form of the Fifth Certificate of Amendment of the Certificate of Incorporation of the Company to increase the number of authorized shares of Common Stock is attached as Appendix A to this Proxy Statement (the “Charter Amendment”).
The Board is recommending the proposed increase in the number of authorized shares of Common Stock to provide additional authorized shares of Common Stock for use in connection with potential future financings, strategic opportunities, acquisitions, employee benefit plans or for other corporate purposes. The Board determined that the Charter Amendment is advisable and in the best interests of the Company and directed that the Charter Amendment be submitted for adoption and approval by stockholders at the Annual Meeting. The Charter Amendment would not affect the number of authorized shares of preferred stock. Currently, there are no shares of preferred stock issued and outstanding. Except for shares of Common Stock that are reserved for issuance, the Company has no commitments at this time for the issuance of additional shares of Common Stock, but desires to position itself to do so when needs arise and market conditions warrant.
As of the Record Date, there were 568,317,504 shares of Common Stock issued and outstanding and 143,077,736 shares of Common Stock reserved for issuance, leaving a balance of 38,604,760 shares of authorized and unissued Common Stock available for issuance. The Company is obligated to reserve for future issuance a sufficient number of shares of Common Stock to meet the Company’s obligations to issue Common Stock upon the exercise and conversion of the Company’s senior convertible notes, outstanding warrants to purchase Common Stock and outstanding options and other compensatory equity awards. The Company was obligated to reserve 143,077,736 shares as of the Record Date.
If the Charter Amendment is approved by the stockholders, 1,500,000,000 shares of Common Stock will be authorized for issuance and the additional authorized shares of Common Stock may be issued by the Company without any further action by the stockholders. Any additional authorized shares of Common Stock, if and when issued, would be part of the Company’s existing class of Common Stock, and would have the same rights and privileges as the currently outstanding shares of Common Stock. The issuance of additional authorized shares of Common Stock, may, among other things, have a dilutive effect on earnings per share and on the equity and voting power of existing holders of Common Stock. Although the Board of Directors has no present intention of issuing additional shares for such purposes, the proposed increase in the number of authorized shares could also enable the Board of Directors to render more difficult or discourage an attempt by another person or entity to obtain control of the Company.
If the Company’s stockholders adopt and approve the Charter Amendment, the Charter Amendment will become effective on the date that it is filed with the Secretary of State of the State of Delaware. If the Charter Amendment is adopted and approved by the stockholders, the Company currently anticipates filing the Charter Amendment with the Secretary of State of the State of Delaware on or around July 30, 2021.
Failure by the stockholders to approve the Charter Amendment would reduce the ability of the Board to take the potential future actions to issue additional Common Stock discussed above.
Vote Required for Approval
A quorum being present, the affirmative vote of the holders of a majority of the outstanding shares of the Common Stock is required for the approval of the Charter Amendment. For purposes of determining whether this proposal has passed, abstentions and broker non-votes will be treated as votes cast against this proposal.
Recommendation of the Board
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE CHARTER AMENDMENT.
PROPOSAL 3: APPROVAL OF TO THE COMPANY’S 2021 STOCK OPTION AND INCENTIVE PLAN
Proposal
The Board believes that stock-based incentive awards play an important role in
On June 29, 2021, the Board of Directors adopted, subject to stockholder approval, the Plug Power Inc. 2021 Stock Option and Incentive Plan (the “2021(as amended, the “Amended Plan”)., subject to approval from our stockholders at the Annual Meeting. The 2021Amended Plan is designed to enhancewill (i) increase the flexibility to grant equity awards to our officers, employees, non-employee directors and consultants and to ensure that we can continue to grant equity awards to eligible recipients at levels determined to be appropriate by the Boardnumber of Directors and/or the Compensation Committee. A copyshares of the 2021 Plan is attached as Appendix B to this Proxy Statement and is incorporated herein by reference.
If the 2021 Plan is approved, we intend to discontinue granting awardscommon stock authorized for issuance under the Plug Power Inc. Third Amended and Restated 20112021 Stock Option and Incentive Plan (the “2011 Plan”)from 40,030,000 shares to 51,400,000 shares, an increase of 11,370,000 shares; (ii) adjust the fungible share counting ratio from 1.35 to 1.28; and no new(iii) clarify that the treatment of outstanding equity awards shall be granted under the 2011 Plan following the effective date of the 2021 Plan.
upon a sale event is “double-trigger” acceleration. As of DecemberMarch 31, 2020, there were:
Stock options to acquire 10,284,4982023, 13,172,672 shares of Common Stock outstanding under our equity compensation plans, with a weighted average exercise price of $5.78 and a weighted average remaining term of 7.8 years; and
5,874,642 unvested full value awards with time-based vesting outstanding under our equity compensation plans.
Other than the foregoing, no awardscommon stock were outstanding under our equity compensation plans as of December 31, 2020. As of December 31, 2020, there were 848,909 shares of Common Stock available for awards under our equity compensation plans.
Summary of Material Features of the 2021 Plan
The material features of the 2021 Plan are:
The maximum number of shares of Common Stock to be issued under the 2021 Plan is 22,500,000 plus any shares of Stock that are available for grant under the 2011 Plan as of the effective date of the 2021 Plan;
The award of stock options (both incentive and non-qualified options), stock appreciation rights, restricted stock, restricted stock units, unrestricted stock, cash-based awards, and dividend equivalent rights is permitted;
Shares tendered or held back for taxes will not be added back to the reserved pool under the 2021 Plan. Upon the exercise of a stock appreciation right that is settled in shares of Common Stock, the full number of shares underlying the award will be charged to the reserved pool under the 2021 Plan. Additionally, shares we reacquire on the open market will not be added to the reserved pool under the 2021 Plan;
Stock options and stock appreciation rights will not be repriced in any manner without stockholder approval;
The value of all awards awarded under the 2021 Plan and all other cash compensation paid by us to any non-employee director in any calendar year may not exceed $950,000;
A minimum vesting period of one year is required for all equity awards, other than a limited number of excepted awards under the 2021 Plan;
Any dividends and dividend equivalent rights payable with respect to any equity award are subject to the same vesting provisions as the underlying award;
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Any material amendment to the 2021 Plan is subject to approval by our stockholders; and
The term of the 2021 Plan will expire on July 30, 2031.
Based solely on the closing price of our Common Stock as reported by the NASDAQ Capital Market on May 31, 2021 and the maximum number of shares that would have been available for awards as of such date under the 2021 Plan, the maximum aggregate market value of the Common Stock that could potentially be issued under the 2021 Plan is $690,750,000. The shares of Common Stock underlying any awards that are forfeited, canceled, cash-settled or otherwise terminated, other than by exercise, under the 2021 Plan and the 2011 Plan will be added back to the shares of Common Stock available for issuance under the 2021 Stock Option and Incentive Plan. Shares tendered or held back upon exercise of a stock option or settlement of an award under the 2021 Plan to cover the exercise price or tax withholding andWe currently expect that these shares, subject to a stock appreciation right that are not issued in connectiontogether with the stock settlement of the stock appreciation right upon exercise thereof, will not be added backshares which become available due to the sharescancellation of Common Stock available for issuance under the 2021 Plan. In addition, shares of Common Stock repurchased on the open marketoutstanding awards, will not be added backinsufficient to the shares of Common Stock available for issuance under the 2021 Plan.
make awards to new hires, directors and existing employees in 2023.
Burn rate
Summary of Key Stock Plan Data
Share Element | 2018 | 2019 | 2020 | |||||||||
Stock Options Granted | 2,679,667 | 3,221,892 | 3,509,549 | |||||||||
Time-Based Full-Value Awards Granted | 2,496,384 | 3,316,177 | 3,263,324 | |||||||||
Total Awards Granted | 5,176,051 | 6,538,069 | 6,772,873 | |||||||||
Weighted average common shares outstanding during the fiscal year | 218,882,337 | 237,152,780 | 354,790,106 | |||||||||
Annual Burn Rate | 2.36 | % | 2.76 | % | 1.91 | % | ||||||
Three-Year Average Burn Rate |
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| 2.34 | % |
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Our Compensation Committee determined the size
| | | 2022 | | | 2021 | | | 2020 | | | 3-Year Average | | |||||||||
Stock Options/Stock Appreciation Rights (SARs) Granted | | | | | 3,261,724 | | | | | | 1,942,335 | | | | | | 3,509,549 | | | | | |
Restricted Shares/Units Granted | | | | | 4,289,682 | | | | | | 1,894,356 | | | | | | 3,263,324 | | | | | |
Performance-Based Stock Options Earned* | | | | | — | | | | | | 3,640,000 | | | | | | 0 | | | | | |
Weighted-Average Basic Common Shares Outstanding | | | | | 579,716,708 | | | | | | 558,182,177 | | | | | | 354,790,106 | | | | | |
Share Usage Rate | | | 1.30% | | | 1.34% | | | 1.91% | | | 1.52% | |
| Shares available for grant under the 2021 Stock Option and Incentive Plan (a) | | | 13,172,672 | |
| Additional shares requested for approval under the Amended Plan (b) | | | 11,370,000 | |
| Shares subject to outstanding stock options/SARs | | | 27,479,533 | |
| Weighted – average exercise price of outstanding stock options/SARs | | | $21.43 | |
| Weighted – average remaining term of outstanding stock options/SARs | | | 6.34 years | |
| Shares subject to outstanding full-value stock awards | | | 5,888,013 | |
| Total outstanding stock options/SARs and full-value stock awards (c) | | | 33,367,546 | |
| Shares of common stock outstanding as of the Record Date (d) | | | 600,464,061 | |
| Fully-diluted Overhang (a+b+c) divided by (a+b+c+d) | | | 8.8% | |
Nasdaq Capital Market was $7.48.
meeting of stockholders may vest on the date of the Company’s next annual meeting of stockholders that is at least 50 weeks after the immediately preceding year’s annual meeting. In addition, the Compensation Committee may grant equity awards that vest within one year (i) if such awards are granted as substitute awards in replacement of other awards (or awards previously granted by an entity being acquired (or assets of which are being acquired)) that were scheduled to vest within one year or (ii) if such awards are being granted in lieu of fully vested cash compensation.
Restricted Stock. The Compensation Committee may award shares of Common Stockthe Company’s common stock to participants subject to such conditions and restrictions as the Compensation Committee may determine. These conditions and restrictions may include the achievement of certain performance goals and/or continued employment (or other service relationship) with us through a specified restricted period. During the vesting period, restricted stock awards may be credited with dividends but dividends payable with respect to a restricted stock award shall not be paid unless and until the awards vests.
To the extent that awards are assumed, continued or substituted in connection with a sale event, except as otherwise provided in the award agreement, if, during the 24-month period following the sale event, the grantee’s service relationship is terminated by the Company or its successor without “Cause” or by the grantee for “Good Reason”, any then outstanding awards that are not vested and exercisable or nonforfeitable immediately prior to such termination shall become
Tax Withholding. Participants in the 2021Amended Plan are responsible for the payment of any federal, state or local taxes that the Company is required by law to withhold upon the exercise of options or stock appreciation rights or vesting of other awards. The Compensation Committee may require that tax withholding obligations satisfied by withholding shares of Common Stockthe Company’s common stock to be issued pursuant to exercise or vesting. The Compensation Committee may also require our tax withholding obligation to be satisfied, in whole or in part, by an arrangement whereby a certain number of shares issued pursuant to any award are immediately sold and proceeds from such sale are remitted to us in an amount that would satisfy the withholding amount due.
July 30, 2031.
Options | Stock Awards | |||||||||||||||
Name and Position | Average Exercise Price ($) | Number of Awards (#) | Dollar Value ($)(1) | Number of Awards (#) | ||||||||||||
Andrew J. Marsh, President, Chief Executive Officer and Director | 14.36 | 550,000 | 7,260,000 | 550,000 | ||||||||||||
Paul B. Middleton, Chief Financial Officer and Senior Vice President | 14.36 | 200,000 | 2,640,000 | 200,000 | ||||||||||||
Sanjay K. Shrestha, Chief Strategy Officer | 14.36 | 225,000 | 2,970,000 | 225,000 | ||||||||||||
Keith C. Schmid, Chief Operating Officer and Senior Vice President | 14.36 | 200,000 | 2,640,000 | 200,000 | ||||||||||||
Jose Luis Crespo, Vice President-Global Sales | 13.20 | 175,000 | 2,310,000 | 175,000 | ||||||||||||
All current executive officers, as a group | 14.20 | (2) | 1,560,000 | 20,592,000 | (3) | 1,560,000 | ||||||||||
All current directors who are not executive officers, as a group | 4.88 | (2) | 89,649 | 437,500 | (3) | 89,649 | ||||||||||
All current employees who are not executive officers, as a group | 11.96 | (2) | 1,789,900 | 19,671,400 | (3) | 1,577,500 |
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| | | Options | | | Stock Awards | | ||||||||||||||||||
Name and Position | | | Average Exercise Price ($) | | | Number of Awards (#) | | | Dollar Value ($)(1) | | | Number of Awards (#) | | ||||||||||||
Andrew J. Marsh, President, Chief Executive Officer and Director | | | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Paul B. Middleton, Chief Financial Officer and Executive Vice President | | | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Gerard L. Conway, Jr. General Counsel, Corporate Secretary and Executive Vice President | | | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Jose Luis Crespo, General Manager, Applications and Executive Vice President | | | | | | | | | | | | | | | | | | | | | | | | | |
Dirk Ole Hoefelmann, General Manager, Electrolyzers and Executive Vice President | | | | $ | 18.62 | | | | | | 100,000 | | | | | | 1,862,000 | | | | | | 100,000 | | |
Keith Schmid, Executive Vice President, Special Projects | | | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
Sanjay K. Shrestha, General Manager, Energy Solutions, Chief Strategy Officer, and Executive Vice President | | | | | 0 | | | | | | 0 | | | | | | 0 | | | | | | 0 | | |
All current executive officers, as a group | | | | $ | 26.13(2) | | | | | | 1,550,000 | | | | | | 931,000(3) | | | | | | 50,000 | | |
All current directors who are not executive officers, as a group | | | | $ | 18.81(2) | | | | | | 71,774 | | | | | | 1,280,269(3) | | | | | | 71,483 | | |
All current employees who are not executive officers, as a group | | | | $ | 20.20(2) | | | | | | 2,966,133 | | | | | | 78,433,228(3) | | | | | | 3,877,253 | | |
Plan Category | | | Number of shares to be issued upon exercise of outstanding options, warrants and rights (a) | | | Weighted average exercise price of outstanding options, warrants and rights (b)(1) | | | Number of shares remaining for future issuance under equity compensation plans (excluding shares reflected in column (a)) (c) | | |||||||||
Equity compensation plans approved by security holders | | | | | 26,830,251(2) | | | | | $ | 17.76 | | | | | | 13,218,775 | | |
Equity compensation plans not approved by security holders | | | | | 768,018(3) | | | | | $ | 4.26 | | | | | | — | | |
Total | | | | | 27,598,269 | | | | | | | | | | | | 13,218,775 | | |
Plan Category | Number of shares to be issued upon exercise of outstanding options, warrants and rights (a) | Weighted average exercise price of outstanding options, warrants and rights (b)(1) | Number of shares remaining for future issuance under equity compensation plans (excluding shares reflected in column (a)) (c) | |||||||||
Equity compensation plans approved by security holders | 15,234,454 | (2) | $ | 3.65 | 848,909 | (3) | ||||||
Equity compensation plans not approved by security holders | 924,686 | (4) | $ | 4.12 | — | |||||||
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Total | 16,159,140 | 848,909 | ||||||||||
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Stock Option and Incentive Plan. The amounts reported in the table do not include 4,837,722 shares of restricted stock granted under the 2021 Stock Option Plan and 1,351,987 shares of restricted stock granted under the 2011 Stock Option and Incentive Plan.
Abstentions and broker non-votes will not have an effect on the outcome of this proposal.
VOTE “
proposal. Abstentions and broker non-votes will not have an effect on the outcome of this proposal.
January 1, 2022 to March 16, 2022, (i) there were no disagreements (as defined in Item 304(a)(1)(iv) of Regulation S-K and the related instructions to Item 304 of Regulation S-K) with KPMG LLP on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements if not resolved to KPMG LLP’s satisfaction, would have caused KPMG LLP to make reference to the subject matter of such disagreements in their reports on the Company’s consolidated financial statements for such periods, and (ii) there were no “reportable events” as defined in Item 304(a)(1)(v) of Regulation S-K, except for the material weaknesses described below.
2023. Abstentions and broker non-votes will not have an effect on the outcome of this proposal.
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Shares Beneficially Owned(2) | ||||||||
Name and Address of Beneficial Owner(1) | Number | Percentage (%) | ||||||
Grove Energy Capital LLC(3) | 54,966,188 | 9.7 | % | |||||
BlackRock, Inc.(4) | 47,161,335 | 8.3 | % | |||||
The Vanguard Group(5) | 40,465,986 | 7.1 | % | |||||
Andrew J. Marsh | 293,598 | * | ||||||
Paul B. Middleton | 38,260 | * | ||||||
Sanjay K. Shrestha(6) | 330,909 | * | ||||||
Keith C. Schmid(7) | 383,776 | * | ||||||
Jose Luis Crespo(8) | 101,721 | * | ||||||
Kimberly A. Harriman | — | * | ||||||
Maureen O. Helmer(9) | 153,501 | * | ||||||
Gregory L. Kenausis(10) | 323,217 | * | ||||||
George C. McNamee(11) | 978,723 | * | ||||||
Johannes M. Roth(12) | 471,197 | * | ||||||
Lucas P. Schneider(13) | 320,574 | * | ||||||
Jonathan Silver(14) | 55,695 | * | ||||||
Kyungyeol Song(15) | — | * | ||||||
Gary K. Willis(16) | 582,018 | * | ||||||
All executive officers and directors as a group (16 persons)(17) | 4,141,698 | 0.7 | % |
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| | | Shares Beneficially Owned(2) | | |||||||||
Name and Address of Beneficial Owner(1) | | | Number | | | Percentage (%) | | ||||||
Grove Energy Capital LLC(3) | | | | | 54,966,188 | | | | | | 9.3% | | |
The Vanguard Group(5) | | | | | 51,870,529 | | | | | | 8.7% | | |
BlackRock, Inc.(4) | | | | | 50,846,270 | | | | | | 8.6% | | |
Andrew J. Marsh(6) | | | | | 2,270,734 | | | | | | * | | |
Paul B. Middleton(7) | | | | | 860,421 | | | | | | * | | |
Gerard L. Conway, Jr.(8) | | | | | 806,219 | | | | | | * | | |
Jose Luis Crespo(9) | | | | | 775,218 | | | | | | * | | |
Dirk Ole Hoefelmann(10) | | | | | 448,248 | | | | | | * | | |
Keith C. Schmid(11) | | | | | 1,167,060 | | | | | | * | | |
Sanjay K. Shrestha(12) | | | | | 666,030 | | | | | | * | | |
Jean A. Bua(13) | | | | | 18,228 | | | | | | * | | |
Maureen O. Helmer(14) | | | | | 174,203 | | | | | | * | | |
Gregory L. Kenausis(15) | | | | | 344,209 | | | | | | * | | |
Kavita Mahtani(16) | | | | | 18,062 | | | | | | * | | |
George C. McNamee(17) | | | | | 1,008,652 | | | | | | * | | |
Lucas P. Schneider(18) | | | | | 339,963 | | | | | | * | | |
Jonathan M. Silver(19) | | | | | 78,930 | | | | | | * | | |
Kyungyeol Song(20) | | | | | — | | | | | | * | | |
Gary K. Willis(21) | | | | | 603,049 | | | | | | * | | |
All current executive officers and directors as a group (17 persons)(22)(23) | | | | | 9,737,987 | | | | | | 1.6% | | |
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*
Keith•
Andrew J. Marsh, Gerard L. Conway, Jr. and Martin D. HullMcNamee each filed a Form 4 on July 15, 2022 disclosing grants of common stock made on July 1, 2022 pursuant to the Company’s Director Compensation Plan.
Johannes M. Roth and FiveT Capital Holding AG filed Form 4s on April 28, 2020 disclosing the conversion of Series C Redeemable Convertible Preferred Stock into shares of Common Stock on April 16, 2020 and the sale of shares of Common Stock on April 22, 2020 and April 23, 2020 by Five More Special Situations Fund Ltd., which receives investment advisory services from a wholly-owned subsidiary of FiveT Capital Holding AG, in which entities Mr. Roth has equity interests and which shares of Common Stock Mr. Roth has expressly disclaimed beneficial ownership in, except to the extent of his pecuniary interest therein, if any;
2022; Sanjay K. Shrestha filed a Form 4 on May 14, 2020 disclosing the vesting of restricted stock and tendering of shares to cover tax withholding obligations in connection with such vestingWithholding Events on May 9, 2020;
2022 and September 28, 2022; Gerard L. Conway, Jr., Jose Luis Crespo, Andrew J. Marsh, Paul B. Middleton and Keith C. Schmid and Martin D. HullSchmidt each filed a Form 4 on September 1, 2020 disclosing the vesting of restricted stock and tendering of shares to cover tax withholding obligations in connection with such vestingWithholding Events on August 19, 2020;
Gerard L Conway, Jr.2022 and September 28, 2022; and Martin D. Hull filed a Form 4 on September 1, 2020 disclosing the vesting of restricted stock and tendering of shares to cover tax withholding obligations in connection with such vestingWithholding Events on August 19, 20202022, September 22, 2022 and the sale of shares pursuant toSeptember 28, 2022.
Lucas P. Schneider
DELIVERY OF PROXY MATERIALS AND ANNUAL REPORT
The NoticeTo comply with the universal proxy rules, stockholders who intend to solicit proxies in support of Annual Meeting, this Proxy Statement,director nominees other than the Company’s nominees must provide notice that sets forth the information required by Rule 14a-19 under the Exchange Act no later than April 28, 2024.
Many brokerage firms12110.
“Householding” is the term used to describe the practice of delivering one copy of a document to a household of shareholders instead of delivering one copy of a document to each shareholder in the household. Stockholders who share a common address and who have not opted out of the householding process should receive a single copy of the Notice of Internet Availability of Proxy Materials for each account. If you received more than one copy of the Notice of Internet Availability of Proxy Materials, you may elect to household in the future; if you received a single copy of the Notice of Internet Availability of Proxy Materials, you may opt out of householding in the future, in either case, by writing to the Company at the following address, Plug Power Inc., 968 Albany Shaker Road, Latham, New York 12110, or by calling the Company at (518) 782-7700.
In any event, you may obtain a copy of this Proxy Statement by writing to the Company at the following address: Plug Power Inc., 968 Albany Shaker Road, Latham, New York 12110.
FIFTH CERTIFICATE OF
OF
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
NO. 2 TO THE PLUG POWER INC.
Plug Power Inc., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), hereby certifies as follows:
FIRST: That the Board of Directors of the Corporation has duly adopted resolutions (i) authorizing the Corporation to execute and file with the Secretary of State of the State of Delaware this Fifth Certificate of Amendment of Amended and Restated Certificate of Incorporation (this “Fifth Amendment”) to increase the authorized capital stock of the Corporation from 755,000,000 shares to 1,505,000,000 shares; and (ii) declaring this Fifth Amendment to be advisable, submitted to and considered by the stockholders of the Corporation entitled to vote thereon for approval by the affirmative vote of such stockholders in accordance with the terms of the Corporation’s Amended and Restated Certificate of Incorporation, as amended by the Certificate of Amendment of the Amended and Restated Certificate of Incorporation dated June 21, 2000, the Second Certificate of Amendment of the Amended and Restated Certificate of Incorporation dated May 19, 2011, the Third Certificate of Amendment of the Amended and Restated Certificate of Incorporation dated July 25, 2014, the Certificate of Correction to the Third Certificate of Amendment of the Amended and Restated Certificate of Incorporation dated December 21, 2016 and the Fourth Certificate of Amendment of the Amended and Restated Certificate of Incorporation dated June 30, 2017 (collectively, the “Certificate of Incorporation”) and Section 242 of the General Corporation Law of the State of Delaware (the “DGCL”) and recommended for approval by the stockholders of the Corporation.
SECOND: That this Fifth Amendment was duly adopted in accordance with the terms of the Certificate of Incorporation and the provisions of Section 242 of the DGCL by the Board of Directors and stockholders of the Corporation.
THIRD: That upon the effectiveness of this Fifth Amendment, the first paragraph of Article IV of the Certificate of Incorporation is hereby deleted and is replaced in its entirety with the following:
“The total number of shares of capital stock which the Corporation shall have the authority to issue is One Billion Five Hundred Five Million (1,505,000,000) shares, of which (i) One Billion Five Hundred Million (1,500,000,000) shares shall be Common Stock, par value $0.01 per share, and (ii) Five Million (5,000,000) shares shall be preferred stock, par value $0.01 per share (consisting of 170,000 shares of previously designated Series A Junior Participating Cumulative Preferred Stock and 4,830,000 shares of undesignated preferred stock).”
IN WITNESS WHEREOF, the Corporation has caused this Fifth Certificate of Amendment of Amended and Restated Certificate of Incorporation to be executed by Andrew Marsh, its President and Chief Executive Officer, this day of July, 2021.
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APPENDIX B
PLUG POWER INC.
2021 STOCK OPTION AND INCENTIVE PLAN
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(a) The name of the plan is
The following terms shall be defined as set forth below:
“Act” means the Securities Act of 1933, as amended and the rules and regulations thereunder.
“Administrator” means either the Board or the compensation committee of the Board or a similar committee performing the functions of the compensation committee andby Amendment No. 1 (the “Plan”), which is comprised of not less than two Non-Employee Directors who are independent.
“Affiliate” means, at the time of determination, any “parent” or “subsidiary” of the Company as such terms are defined in Rule 405 of the Act. The Board will have the authority to determine the time or times at which “parent” or “subsidiary” status is determined within the foregoing definition.
“Award” or “Awards,” except where referring to a particular category of grant under the Plan, shall include Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Units, Unrestricted Stock Awards, Cash-Based Awards, and Dividend Equivalent Rights.
“Award Certificate” means a written or electronic document setting forth the terms and provisions applicable to an Award granted under the Plan. Each Award Certificate is subject to the terms and conditions of the Plan.
“Board” meanswas previously adopted by the Board of Directors of the Company.
“Cash-Based Award” means an Award entitling the recipient to receive a cash-denominated payment.
“Code” means the Internal Revenue Code of 1986, as amended,Company (the “Board”) and any successor Code, and related rules, regulations and interpretations.
“Consultant” means a consultant or adviser who provides bona fide services to the Company or an Affiliate as an independent contractor and who qualifies as a consultant or advisor under Instruction A.1.(a)(1) of Form S-8 under the Act.
“Dividend Equivalent Right” means an Award entitling the grantee to receive credits based on ordinary cash dividends that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other award to which it relates) if such shares had been issued to and heldapproved by the grantee.
“Effective Date” means the date on which the Plan becomes effective as set forth in Section 19.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
“Fair Market Value”stockholders of the Stock on any given date means the fair market value of the Stock determined in good faith by the Administrator; provided, however, that if the Stock is listed on the National Association of Securities Dealers Automated Quotation System (“NASDAQ”)Company;
“Incentive Stock Option” means any Stock Option designated and qualified as an “incentive stock option” as defined in Section 422 of the Code.
“Minimum Vesting Period” means the one-year period following the date of grant of an Award.
“Non-Employee Director” means a member of the Board who is not also an employee of the Company or any Subsidiary.
“Non-Qualified Stock Option” means any Stock Optionbelieves that is not an Incentive Stock Option.
“Option” or “Stock Option” means an option to purchase shares of Stock granted pursuant to Section 5.
“Restricted Shares” means the shares of Stock underlying a Restricted Stock Award that remain subject to a risk of forfeiture or the Company’s right of repurchase.
“Restricted Stock Award” means an Award of Restricted Shares subject to such restrictions and conditions as the Administrator may determine at the time of grant.
“Restricted Stock Units” means an Award of stock units subject to such restrictions and conditions as the Administrator may determine at the time of grant.
“Sale Event” means (i) the sale of all or substantially all of the assets of the Company on a consolidated basis to an unrelated person or entity, (ii) a merger, reorganization or consolidation pursuant to which the holders of the Company’s outstanding voting power and outstanding stock immediately prior to such transaction do not own a majority of the outstanding voting power and outstanding stock or other equity interests of the resulting or successor entity (or its ultimate parent, if applicable) immediately upon completion of such transaction, (iii) the sale of all of the Stock of the Company to an unrelated person, entity or group thereof acting in concert, or (iv) any other transaction in which the owners of the Company’s outstanding voting power immediately prior to such transaction do not own at least a majority of the outstanding voting power of the Company or any successor entity immediately upon completion of the transaction other than as a result of the acquisition of securities directly from the Company.
“Sale Price” means the value as determined by the Administrator of the consideration payable, or otherwise to be received by stockholders, per share of Stock pursuant to a Sale Event.
“Section 409A” means Section 409A of the Code and the regulations and other guidance promulgated thereunder.
“Service Relationship” means any relationship as an officer, employee, director or Consultant of the Company or any Affiliate (e.g., a Service Relationship shall be deemed to continue without interruption in the event an individual’s status changes from full-time employee to part-time employee or Consultant).
“Stock” means the Common Stock, par value $0.01 per share, of the Company, subject to adjustments pursuant to Section 3.
“Stock Appreciation Right” means an Award entitling the recipient to receive shares of Stock (or cash, to the extent explicitly provided for in the applicable Award Certificate) having a value equal to the excess of the Fair Market Value of the Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.
“Subsidiary” means any corporation or other entity (other than the Company) in which the Company has at least a 50 percent interest, either directly or indirectly.
“Ten Percent Owner” means an employee who owns or is deemed to own (by reason of the attribution rules of Section 424(d) of the Code) more than 10 percent of the combined voting power of all classes ofcommon stock of the Company or any parent or subsidiary corporation.
“Unrestricted Stock Award” means an Award of shares of Stock free of any restrictions.
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(a) Administration of Plan. The Plan shall be administered by the Administrator.
(b) Powers of Administrator. The Administrator shall have the power and authority to grant Awards consistent with the terms of the Plan, including the power and authority:
(i) to select the individuals to whom Awards may from time to time be granted;
(ii) to determine the time or times of grant, and the extent, if any, of Incentive Stock Options, Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock Awards, Restricted Stock Units, Unrestricted Stock Awards, Cash-Based Awards, and Dividend Equivalent Rights, or any combination of the foregoing, granted to any one or more grantees;
(iii) to determine the number of shares of Stock to be covered by any Award;
(iv) to determine and modify from time to time the terms and conditions, including restrictions, not inconsistent with the terms of the Plan, of any Award, which terms and conditions may differ among individual Awards and grantees, and to approve the forms of Award Certificates;
(v) to accelerate at any time the exercisability or vesting of all or any portion of any Award;
(vi) subject to the provisions of Section 5(c) or Section 6(d), as applicable, to extend at any time the period in which Stock Options and Stock Appreciation Rights may be exercised; and
(vii) at any time to adopt, alter and repeal such rules, guidelines and practices for administration of the Plan and for its own acts and proceedings as it shall deem advisable; to interpret the terms and provisions of the Plan and any Award (including related written instruments); to make all determinations it deems advisable for the administration of the Plan; to decide all disputes arising in connection with the Plan; and to otherwise supervise the administration of the Plan.
All decisions and interpretations of the Administrator shall be binding on all persons, including the Company and Plan grantees.
(c) Delegation of Authority to Grant Awards. Subject to applicable law, the Administrator, in its discretion, may delegate to a committee consisting of one or more officers of the Company, including the Chief Executive Officer of the Company, all or part of the Administrator’s authority and duties with respect to the granting of Awards to individuals who are (i) not subject to the reporting and other provisions of Section 16 of the Exchange
Act and (ii) not members of the delegated committee. Any such delegation by the Administrator shall include a limitation as to the amount of Stock underlying Awards that may be granted during the period of the delegation and shall contain guidelines as to the determination of the exercise price and the vesting criteria. The Administrator may revoke or amend the terms of a delegation at any time but such action shall not invalidate any prior actions of the Administrator’s delegate or delegates that were consistent with the terms of the Plan.
(d) Award Certificate. Other than with respect to Cash-Based Awards, Awards under the Plan shall be evidenced by Award Certificates that set forth the terms, conditions and limitations for each Award which may include, without limitation, the term of an Award and the provisions applicable in the event employment or service terminates.
(e) Indemnification. Neither the Board nor the Administrator, nor any member of either or any delegate thereof, shall be liable for any act, omission, interpretation, construction or determination made in good faith in connection with the Plan, and the members of the Board and the Administrator (and any delegate thereof) shall be entitled in all cases to indemnification and reimbursement by the Company in respect of any claim, loss, damage or expense (including, without limitation, reasonable attorneys’ fees) arising or resulting therefrom to the fullest extent permitted by law and/or under the Company’s articles or bylaws or any directors’ and officers’ liability insurance coverage which may be in effect from time to time and/or any indemnification agreement between such individual and the Company.
(f) Foreign Award Recipients. Notwithstanding any provision of the Plan to the contrary, in order to comply with the laws in other countries in which the Company and its Subsidiaries operate or have employees or other individuals eligible for Awards, the Administrator, in its sole discretion, shall have the power and authority to: (i) determine which Subsidiaries shall be covered by the Plan; (ii) determine which individuals outside the United States are eligible to participate in the Plan; (iii) modify the terms and conditions of any Award granted to individuals outside the United States to comply with applicable foreign laws; (iv) establish subplans and modify exercise procedures and other terms and procedures, to the extent the Administrator determines such actions to be necessary or advisable (and such subplans and/or modifications shall be attached to this Plan as appendices); provided, however, that no such subplans and/or modifications shall increase the share limitations contained in Section 3(a) hereof; and (v) take any action, before or afteran Award is made, that the Administrator determines to be necessary or advisable to obtain approval or comply with any local governmental regulatory exemptions or approvals. Notwithstanding the foregoing, the Administrator may not take any actions hereunder, and no Awards shall be granted, that would violate the Exchange Act or any other applicable United States securities law, the Code, or any other applicable United States governing statute or law.
(g) Minimum Vesting Period. The vesting period for each Award granted under the Plan must be at least equal to the Minimum Vesting Period; provided, however, notwithstanding the foregoing, (i) up to five percent of the shares of Stock authorizedremaining available for issuance under the Plan has become insufficient for the Company’s anticipated future needs under the Plan;
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(a) Stock Issuable. The maximum number of shares of Stock reserved and available for issuance under the Plan shall be the sum of 22,500,00051,400,00 shares,plus any shares of Stock that are available for grant under the Plug Power Inc. Third Amended and Restated 2011 Stock Option and Incentive Plan (the “2011 Plan”) as of the Effective Date, subject to adjustment as provided in this Section 3. For purposes of this limitation, the shares of Stock underlying any awards under the Plan and the Plug Power Inc. Third Amended and Restated 2011 Stock Option and Incentive Plan (the “2011 Plan”) that are forfeited, canceled, cash-settled or otherwise terminated (other than by exercise) shall be added back to the shares of Stock available for issuance under the Plan and, to the extent permitted under Section 422 of the Code and the regulations promulgated thereunder, the shares of Stock that may be issued as Incentive Stock Options; provided, however, any shares of Stock underlying awards under the 2011 Plan that again become available for grant pursuant to this Section 3(a) after the Amendment Effective Date shall be added back as (i) one (1) share of Stock if such shares were subject to options or stock appreciation rights granted under the 2011 Plan, and (ii) as 1.51.28 shares of Stock if such shares were subject to awards other than options or stock appreciation rights granted under the 2011 Plan. Notwithstanding the foregoing, the following shares shall not be added to the shares authorized for grant
(b) ”
(c) Changes in Stock. Subject to”
outstanding Awards to take into consideration cash dividends paid other than in the ordinary course or any other extraordinary corporate event. The adjustment by the Administrator shall be final, binding and conclusive. No fractional shares of Stock shall be issued under the Plan resulting from any such adjustment, but the Administratoris hereby deleted it in its discretion may make a cash payment in lieu of fractional shares.
(d) entirety and replaced with the following:
(e) Maximum Awards”
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Grantees under the Plan will be such officers, employees, Non-Employee Directorsthrough payroll deductions is prohibited or Consultants of the Company and its Affiliates as are selected from time to timeotherwise problematic under applicable laws (as determined by the Administrator in its sole discretion; provided that Awards may not be granted to officers, employees, Non-Employee Directors or Consultants who are providing services only to any “parent” of the Company, as such term is defined in Rule 405 of the Act, unless (i) the stock underlying the Awards is treated as “service recipient stock” under Section 409A or (ii) the Company has determined that such Awards are exempt from or otherwise comply with Section 409A.
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(a) Award of Stock Options. The Administrator may grant Stock Options under the Plan. Any Stock Option granted under the Plan shall be in such form asdiscretion), the Administrator may from timeprovide that an eligible employee may elect to time approve.
Stock Options grantedparticipate through other contributions in a form acceptable to the Administrator in lieu of or in addition to payroll deductions; provided, however, that, for any Offering under the Plan may423 Component, any alternative method of contribution must be either Incentive Stock Options or Non-Qualified Stock Options. Incentive Stock Options may be granted onlyapplied on an equal and uniform basis to all eligible employees in the Offering. Any reference to “payroll deductions” in this Section 5 (or in any other section of the Company or any Subsidiary that is a “subsidiary corporation” within the meaning of Section 424(f) of the Code. To the extent that any Option does not qualify as an Incentive Stock Option, it shall be deemed a Non-Qualified Stock Option.
Stock Options grantedPlan) will similarly cover contributions by other means made pursuant to this Section 55.
(b) Exercise Price. The exercise price per share for the Stock covered by a Stock Option granted pursuant to this Section 5 shall be determined by the Administrator at the time of grant but shall not be less than 100 percent of the Fair Market Value on the date of grant. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the exercise price of such Incentive Stock Option shall be not less than 110 percent of the Fair Market Value on the grant date. Notwithstanding the foregoing, Stock Options may be granted with an exercise price per share that is less than 100 percent of the Fair Market Value on the date of grant (i) pursuant to a transaction described in, and in a manner consistent with, Section 424(a) of the Code, (ii) to individuals who are not subject to U.S. income tax on the date of grant or (iii) the Stock Option is otherwise compliant with Section 409A.
(c) Option Term. The term of each Stock Option shall be fixed by the Administrator, but no Stocklimitations set forth below. Each Participant’s Option shall be exercisable more than ten years after the date the Stock Option is granted. Notwithstanding the foregoing,only to the extent permitted by Section 409A of the Code, in the event thatsuch Participant’s accumulated payroll deductions on the last business day of the term of a Stock Option other than an Incentive Stock Option (x) the exercise of the Stock Option is prohibited by applicable law or (y) shares may not be purchased or sold by the holder of such Stock Option due to the “black-out period” of a Company policy or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the term of the Stock Option shall be extended to the date that is 30 days following the end of the legal prohibition, black-out period or lock-up agreement and provided further that no extension will be made if the exercise price of such Option at the date the initial term would otherwise expire is equal to or in excess of the Fair Market Value of a share of Stock on such date. In the case of an Incentive Stock Option that is granted to a Ten Percent Owner, the term of such Stock Option shall be no more than five years from the date of grant.
(d) Exercisability; Rights of a Stockholder. Stock Options shall become exercisable at such time or times, whether or not in installments, as shall be determined by the Administrator at or after the grant date.Exercise Date. The Administrator may at any time accelerate the exercisability of all or any portion of any Stock Option. An optionee shall have the rights of a stockholder only as to shares acquired upon the exercise of a Stock Option and not as to unexercised Stock Options.
(e) Method of Exercise. Stock Options may be exercised in whole or in part, by giving written or electronic notice of exercise to the Company, specifying the number of shares to be purchased. Payment of the purchase price may be made by one or more of the following methods except to the extent otherwise provided in the Award Certificate:
(i) In cash, by certified or bank check or other instrument acceptable to the Administrator;
(ii) Through the delivery (or attestation to the ownership following such procedures as the Company may prescribe) of shares of Stock that are not then subject to restrictions under any Company plan. Such surrendered shares shall be valued at Fair Market Value on the exercise date;
(iii) By the optionee delivering to the Company a properly executed exercise notice together with irrevocable instructions to a broker to promptly deliver to the Company cash or a check payable and acceptable
to the Company for the purchase price; provided that in the event the optionee chooses to pay the purchase price as so provided, the optionee and the broker shall comply with such procedures and enter into such agreements of indemnity and other agreements as the Company shall prescribe as a condition of such payment procedure; or
(iv) With respect to Stock Options that are not Incentive Stock Options, by a “net exercise” arrangement pursuant to which the Company will reduce the number of shares of Stock issuable upon exercise by the largest whole number of shares with a Fair Market Value that does not exceed the aggregate exercise price.
Payment instruments will be received subject to collection. The transfer to the optionee on the records of the Company or of the transfer agent of the shares of Stock to be purchased pursuant to the exercise of a Stock Option will be contingent upon receipt from the optionee (or a purchaser acting in his or her stead in accordance with the provisions of the Stock Option) by the Company of the full purchase price for such shares and the fulfillment of any other requirements contained in the Award Certificate or applicable provisions of laws (including the satisfaction of any withholding taxes that the Company is obligated to withhold with respect to the optionee). In the event an optionee chooses to pay the purchase price by previously-owned shares of Stock through the attestation method, the number of shares of Stock transferred to the optionee upon the exercise of the Stockeach share purchased under each Option shall(the “Option Price”) will be net of the number of attested shares. In the event that the Company establishes, for itself or using the services of a third party, an automated system for the exercise of Stock Options, such as a system using an internet website or interactive voice response, then the paperless exercise of Stock Options may be permitted through the use of such an automated system.
(f) Annual Limit on Incentive Stock Options. To the extent required for “incentive stock option” treatment under Section 422 of the Code, the aggregate Fair Market Value (determined as of the time of grant) of the shares of Stock with respect to which Incentive Stock Options granted under this Plan and any other plan of the Company or its parent and subsidiary corporations become exercisable for the first time by an optionee during any calendar year shall not exceed $100,000. To the extent that any Stock Option exceeds this limit, it shall constitute a Non-Qualified Stock Option.
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(a) Award of Stock Appreciation Rights. The Administrator may grant Stock Appreciation Rights under the Plan. A Stock Appreciation Right is an Award entitling the recipient to receive shares of Stock (or cash, to the extent explicitly provided for in the applicable Award Certificate) having a value (if any) equal to the excess of the Fair Market Value of a share of Stock on the date of exercise over the exercise price of the Stock Appreciation Right multiplied by the number of shares of Stock with respect to which the Stock Appreciation Right shall have been exercised.
(b) Exercise Price of Stock Appreciation Rights. The exercise price of a Stock Appreciation Right shall not be less than 100eighty-five percent (85%) of the Fair Market Value of the Common Stock on the date of grant. Offering Date or the Exercise Date, whichever is less.
(c) Grant and Exercise of Stock Appreciation Rights. Stock Appreciation RightsParticipant. In addition, no Participant may be granted byan Option that permits such Participant rights to purchase stock under the Administrator independently ofPlan, and any Stock Option granted pursuant to Section 5other employee stock purchase plan of the Plan.
(d) TermsCompany and Conditionsits Parents and Subsidiaries, to accrue at a rate that exceeds $25,000 of Stock Appreciation Rights. Stock Appreciation Rights shall be subject tothe fair market value of such terms and conditions as shall be determinedstock (determined on the Option grant date or dates) for each calendar year in which the Option is outstanding at any time. The purpose of grant by the Administrator. The term of a Stock Appreciation Right may not exceed ten years. Notwithstandinglimitation in the foregoing,preceding sentence is to the extent permitted bycomply with Section 409A423(b)(8) of the Code and shall be applied taking Options into account in the event thatorder in which they were granted.
purchased or sold by the holder ofPlan as such Stock Appreciation Right due to the “black-out period” of a Company policy or a “lock-up” agreement undertaken in connection with an issuance of securities by the Company, the term of the Stock Appreciation Right shall be extended to theParticipant’s accumulated payroll deductions on such date that is 30 days following the end of the legal prohibition, black-out period or lock-up agreement and provided further that no extension will be made if the exercise price of such Stock Appreciation Rightpurchase at the dateOption Price, subject to any other limitations contained in the initial term wouldPlan. Unless otherwise expire is equal to or in excess of the Fair Market Value of a share of Stock on such date. The terms and conditions of each such Award shall be determined by the Administrator and such terms and conditions may differ among individual Awards and grantees.
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(a) Naturein advance of Restricted Stock Awards. The Administrator may grant Restricted Stock Awards under the Plan. A Restricted Stock Award is any Award of Restricted Shares subject to such restrictions and conditions as the Administrator may determineOffering, any amount remaining in a Participant’s account at the timeend of grant. Conditions may be based on continuing employment (or other Service Relationship) and/or achievement of pre-established performance goals and objectives.
(b) Rights as a Stockholder. Upon the grantan Offering solely by reason of the Restricted Stock Award and payment of any applicableinability to purchase price, a grantee shall have the rights of a stockholder with respectfractional share will be carried forward to the votingnext Offering; any other balance remaining in a Participant’s account at the end of an Offering will be refunded to the Participant promptly.
(c) Restrictions. Restricted Shares may not be sold, assigned, transferred, pledged or otherwise encumbered or disposed of except as specifically provided herein or in the Restricted Stock Award Certificate. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section 16 below, in writing after the Award is issued, if a grantee’s employment (or other Service Relationship) with the Company and its Subsidiaries terminates for any reason, any Restricted Shares that have not vested at the time of termination shall automatically and without any requirement of notice to such grantee from or other action by or on behalf of, the Company be deemed to have been reacquired by the Company at its original purchase price (if any) from such grantee or such grantee’s legal representative simultaneously with such termination of employment (or other Service Relationship), and thereafter shall cease to represent any ownership of the Company by the grantee or rights of the grantee as a stockholder. Following such deemed reacquisition of Restricted Shares that are represented by physical certificates, a grantee shall surrender such certificates to the Company upon request without consideration.
(d) Vesting of Restricted Shares. The Administrator at the time of grant shall specify the date or dates and/or the attainment of pre-established performance goals, objectives and other conditions on which the non-transferability of the Restricted Shares and the Company’s right of repurchase or forfeiture shall lapse. Subsequent to such date or dates and/or the attainment of such pre-established performance goals, objectives and other conditions, the shares on which all restrictions have lapsed shall no longer be Restricted Shares and shall be deemed “vested.”
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(a) Nature of Restricted Stock Units. The Administrator may grant Restricted Stock Units under the Plan. A Restricted Stock Unit is an Award of stock units that may be settled in shares of Stock (or cash, to the extent explicitly provided for in the Award Certificate) upon the satisfaction of such restrictions and conditions at the
time of grant. Conditions may be based on continuing employment (or other Service Relationship) and/or achievement of pre-established performance goals and objectives. The terms and conditions of each such Award shall be determined by the Administrator, and such terms and conditions may differ among individual Awards and grantees. Except inwhether now or hereafter existing.
(b) Election to Receive Restricted Stock Units in Lieu of Compensation. The Administrator may, in its sole discretion, permit a grantee to elect to receive a portion of future cash compensation otherwise due to such grantee in the form of an award of Restricted Stock Units. Any such election shall be made in writing and shall be delivered to the Company no later than the date specified by the Administrator and in accordance with Section 409A and such other rules and procedures established by the Administrator. Any such future cash compensation that the grantee elects to defer shall be converted to a fixed number of Restricted Stock Units based on the Fair Market Value of Stock on the date the compensation would otherwise have been paid to the grantee if such payment had not been deferred as provided herein.compensation. The Administrator shall have the sole rightdiscretion to determine whether and under what circumstancesthe application of this definition to permit such elections and to impose such limitations and other terms and conditions thereon as the Administrator deems appropriate. Any Restricted Stock Units that are elected to be received in lieu of cash compensation shall be fully vested, unless otherwise provided in the Award Certificate.
(c) Rights as a Stockholder. A grantee shall have the rights as a stockholder only as to shares of Stock acquired by the grantee upon settlement of Restricted Stock Units; provided, however, that the grantee may be credited with Dividend Equivalent Rights with respect to the stock units underlying his or her Restricted Stock Units, subject to the provisions of Section 11 and such terms and conditions as the Administrator may determine.
(d) Termination. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section 16 below, in writing after the Award is issued, a grantee’s right in all Restricted Stock Units that have not vested shall automatically terminate upon the grantee’s termination of employment (or cessation of Service Relationship) with the Company and its Subsidiaries for any reason.
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Grant or Sale of Unrestricted Stock. The Administrator may grant (or sell at par value or such higher purchase price determined by the Administrator) an Unrestricted Stock Award under the Plan. An Unrestricted Stock Award is an Award pursuant to which the grantee may receive shares of Stock free of any restrictions under the Plan. Unrestricted Stock Awards may be granted in respect of past services or other valid consideration, or in lieu of cash compensation due to such grantee.
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Grant of Cash-Based Awards. The Administrator may grant Cash-Based Awards under the Plan. A Cash-Based Award is an Award that entitles the grantee to a payment in cash upon the attainment of specified performance goals. The Administrator shall determine the maximum durationParticipants outside of the Cash-Based Award, the amount of cash to which the Cash-Based Award pertains, the conditions upon which the Cash-Based Award shall become vested or payable,United States.
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(a) Dividend Equivalent Rights. The Administrator may grant Dividend Equivalent Rights under the Plan. A Dividend Equivalent Right is an Award entitling the grantee to receive credits based on cash dividendsSubsidiary that would have been paid on the shares of Stock specified in the Dividend Equivalent Right (or other Award to which it relates) if such shares had been issued to the grantee. A Dividend Equivalent Right may be granted hereunder to any grantee as a component of an award of Restricted Stock Units or as a freestanding award; for the avoidance of doubt, Stock Options and Stock Appreciation Rights are not eligible for Dividend Equivalent Rights. The terms and conditions of Dividend Equivalent Rights shall be specified in the Award Certificate. Dividend equivalents credited to the holder of a Dividend Equivalent Right may be paid currently or may be deemed to be reinvested in additional shares of Stock, which may thereafter accrue additional equivalents. Any such reinvestment shall be at Fair Market Value on the date of reinvestment or such other price as may then apply under a dividend reinvestment plan sponsored by the Company, if any. Dividend Equivalent Rights may be settled in cash or shares of Stock or a combination thereof, in a single installment or installments. A Dividend Equivalent Right granted as a component of an Award of Restricted Stock Units shall provide that such Dividend Equivalent Right shall be settled only upon settlement or payment of, or lapse of restrictions on, such other Award, and that such Dividend Equivalent Right shall expire or be forfeited or annulled under the same conditions as such other Award.
(b) Termination. Except as may otherwise be provided by the Administrator either in the Award Certificate or, subject to Section 16 below, in writing after the Award is issued, a grantee’s rights in all Dividend Equivalent Rights shall automatically terminate upon the grantee’s termination of employment (or cessation of Service Relationship) with the Company and its Subsidiaries for any reason.
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(a) Transferability. Except as provided in Section 12(b) below, during a grantee’s lifetime, his or her Awards shall be exercisable only by the grantee, or by the grantee’s legal representative or guardian in the event of the grantee’s incapacity. No Awards shall be sold, assigned, transferred or otherwise encumbered or disposed of by a grantee other than by will or by the laws of descent and distribution or pursuant to a domestic relations order. No Awards shall be subject, in whole or in part, to attachment, execution, or levy of any kind, and any purported transfer in violation hereof shall be null and void.
(b) Administrator Action. Notwithstanding Section 12(a), the Administrator, in its discretion, may provide either in the Award Certificate regarding a given Award or by subsequent written approval that the grantee (who is an employee or director) may transfer his or her Awards (other than Incentive Stock Options) to his or her immediate family members, to trusts for the benefit of such family members, or to partnerships in which such family members are the only partners, provided that the transferee agrees in writing with the Company to be bound by all of the terms and conditions of this Plan and the applicable Award. In no event may an Award be transferred by a grantee for value.
(c) Family Member. For purposes of Section 12(b), “family member” shall mean a grantee’s child, stepchild, grandchild, parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law,father-in-law,son-in-law,daughter-in-law,brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the grantee’s household (other than a tenant of the grantee), a trust in which these persons (or the grantee) have more than 50 percent of the beneficial interest, a foundation in which these persons (or the grantee) control the management of assets, and any other entity in which these persons (or the grantee) own more than 50 percent of the voting interests.
(d) Designation of Beneficiary. To the extent permitted by the Company, each grantee to whom an Award has been made under the Plan may designate a beneficiary or beneficiaries to exercise any Award or receive any payment under any Award payable on or after the grantee’s death. Any such designation shall be on a form provided for that purpose by the Administrator and shall not be effective until received by the Administrator. If
no beneficiary has been designated by a deceased grantee, or if the designated beneficiaries have predeceased the grantee, the beneficiary shall be the grantee’s estate.
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(a) Payment by Grantee. Each grantee shall, no later than the date as of which the value of an Award or of any Stock or other amounts received thereunder first becomes includable in the gross income of the grantee for Federal income tax purposes, pay to the Company, or make arrangements satisfactory to the Administrator regarding payment of, any Federal, state, or local taxes of any kind required by law to be withheld by the Company with respect to such income. The Company and its Subsidiaries shall, to the extent permitted by law, have the right to deduct any such taxes from any payment of any kind otherwise due to the grantee. The Company’s obligation to deliver evidence of book entry (or stock certificates) to any grantee is subject to and conditioned on tax withholding obligations being satisfied by the grantee.
(b) Payment in Stock. The Administrator may require the Company’s tax withholding obligation to be satisfied, in whole or in part, by the Company withholding from shares of Stock to be issued pursuant to any Award a number of shares with an aggregate Fair Market Value (as of the date the withholding is effected) that would satisfy the withholding amount due; provided, however, that the amount withheld does not exceed the maximum statutory tax rate or such lesser amount as is necessary to avoid liability accounting treatment. For purposes of share withholding, the Fair Market Value of withheld shares shall be determined in the same manner as the value of Stock includible in income of the grantees. The Administrator may also require the Company’s tax withholding obligation to be satisfied, in whole or in part, by an arrangement whereby a certain number of shares of Stock issued pursuant to any Award are immediately sold and proceeds from such sale are remitted to the Company in an amount that would satisfy the withholding amount due.
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Awards are intended to be exempt from Section 409A to the greatest extent possible and to otherwise comply with Section 409A. The Plan and all Awards shall be interpreted in accordance with such intent. To the extent that any Award is determined to constitute “nonqualified deferred compensation” within the meaning of Section 409A (a “409A Award”), the Award shall be subject to such additional rules and requirements as specified by the Administrator from time to time, in orderits sole discretion, as eligible to comply with Section 409A. In this regard,participate in the Plan, such designation to specify whether such participation is in the 423 Component or Non-423 Component. A Designated Company may participate in either the 423 Component or Non-423 Component, but not both. Notwithstanding the foregoing, if any amount underAffiliate or Subsidiary is disregarded for U.S. tax purposes in respect of the Company or any Designated Company participating in the 423 Component, then such disregarded Affiliate or Subsidiary shall automatically be a 409A AwardDesignated Company participating in the 423 Component. If any Affiliate or Subsidiary is payable upon a “separationdisregarded for U.S. tax purposes in respect of any Designated Company participating in the Non-423 Component, the Administrator may exclude such Affiliate or Subsidiary from service” (withinparticipating in the meaningPlan, notwithstanding that the Designated Company in respect of Section 409A)which such Affiliate or Subsidiary is disregarded may participate in the Plan. The Administrator may so designate any Affiliate or Subsidiary, or revoke any such designation, at any time and from time to a grantee whotime, either before or after the Plan is then considered a “specified employee” (withinapproved by the meaningstockholders.
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(a) Termination of Service Relationship. If the grantee’s Service Relationship is with an Affiliate and such Affiliateemployee, having been a Designated Company, ceases to be an Affiliate or a Subsidiary, or if the grantee shallemployee is transferred to any corporation other than the Company or a Designated Company. An employee will not be deemed to have terminated his or her Service Relationshipemployment for purposes ofthis purpose, if the Plan.
(b) For purposes of the Plan, the following events shall not be deemed a termination of a Service Relationship:
(i) a transfer to the employment of the Company from an Affiliate or from the Company to an Affiliate, or from one Affiliate to another; or
(ii)employee is on an approved leave of absence for military service or sickness or for any other purpose approved by the Company, if the employee’s right to re-employmentreemployment is guaranteed either by a statute or by contract or under the policy pursuant to which the leave of absence was granted or if the Administrator otherwise so provides in writing.
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With respect to the portion of any Award that has not been exercised and any payments in cash, Stock or other consideration not received by a grantee, a grantee shall have no rights greater than those of a general creditor of the Company unless the Administrator shall otherwise expressly determineobtaining all governmental approvals required in connection with any Awardthe authorization, issuance, or Awards. In its sole discretion, the Administrator may authorize the creation of trusts or other arrangements to meet the Company’s obligations to deliver Stock or make payments with respect to Awards hereunder, provided that the existencesale of such trusts or other arrangements is consistent with the foregoing sentence.
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(a) No Distributionstock.
(b) Issuance of Stock. To the extent certificated, stock certificates to grantees under this Plan shall be deemed delivered for all purposes when the Company or a stock transfer agent of the Company shall have mailed such certificates in the United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company. Uncertificated Stock shall be deemed delivered for all purposes when the Company or a Stock transfer agent of the Company shall have given to the grantee by electronic mail (with proof of receipt) or by United States mail, addressed to the grantee, at the grantee’s last known address on file with the Company, notice of issuance and recorded the issuance in its records (which may include electronic “book entry” records). Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any evidence of book entry or certificates evidencing shares of Stock pursuant to the exercise or settlement of any Award, unless and until the Administrator has determined, with advice of counsel (to the extent the Administrator deems such advice necessary or advisable), that the issuance and delivery is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange on which the shares of Stock are listed, quoted or traded. Any Stock issued pursuant to the Plan shall be subject to any stop-transfer orders and other restrictions as the Administrator deems necessary or advisable to comply with federal, state or foreign jurisdiction, securities or other laws, rules and quotation system on which the Stock is listed, quoted or traded. The Administrator may place legends on any Stock certificate or notations on any book entry to reference restrictions applicable to the Stock. In addition to the terms and conditions provided herein, the Administrator may require that an individual make such reasonable covenants, agreements, and representations
as the Administrator, in its discretion, deems necessary or advisable in order to comply with any such laws, regulations, or requirements. The Administrator shall have the right to require any individual to comply with any timing or other restrictions with respect to the settlement or exercise of any Award, including a window-period limitation, as may be imposed in the discretion of the Administrator.
(c) No Fractional Shares. No fractional shares of Stock shall be issued or delivered pursuant to the Plan or any Award, and the Administrator shall determine whether cash, other securities or other property shall be paid or transferred in lieu of any fractional shares, or whether such fractional shares or any rights thereto shall be canceled, terminated or otherwise eliminated.
(d) Stockholder Rights. Until Stock is deemed delivered in accordance with Section 18(b), no right to vote or receive dividends or any other rights of a stockholder will exist with respect to shares of Stock to be issued in connection with an Award, notwithstanding the exercise of a Stock Option or any other action by the grantee with respect to an Award.
(e) Other Compensation Arrangements; No Employment Rights. Nothing contained in this Plan shall prevent the Board from adopting other or additional compensation arrangements, including trusts, and such arrangements may be either generally applicable or applicable only in specific cases. The adoption of this Plan and the grant of Awards do not confer upon any employee any right to continued employment with the Company or any Subsidiary.
(f) Trading Policy Restrictions. Option exercises and other Awards under the Plan shall be subject to the Company’s insider trading policies and procedures, as in effect from time to time.
(g) Clawback Policy. All Awards shall be subject to reduction, cancellation, forfeiture or recoupment to the extent necessary to comply with (i) any clawback, forfeiture or other similar policy adopted by the Board or Committee and as in effect from time to time; and (ii) applicable law. Further, to the extent that the grantee receives any amount in excess of the amount that the grantee should otherwise have received under the terms of the Award for any reason (including, without limitation, by reason of a financial restatement, mistake in calculations or other administrative error), the grantee shall be required to repay any such excess amount to the Company.
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This Plan shall become effective upon stockholder approval in accordance with applicable state law, the Company’s bylaws and articles of incorporation, and applicable stock exchange rules. No grants of Stock Options and other Awards may be made hereunder after the tenth anniversary of the Effective Date and no grants of Incentive Stock Options may be made hereunder after the tenth anniversary of the date the Plan is approved by the Board.
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This Plan and all AwardsOptions and actions taken thereunder shall be governed by, and construed in accordance with the General Corporation Law of the State of Delaware as to matters within the scope thereof, and as to all other matters shall be governed by and construed in accordance with the internal laws of the State of Delaware,New York applied without regard to conflict of law principles.
DATE APPROVED BY BOARD
C/