EXHIBIT 10.39
FORM OF REGISTRATION RIGHTS AGREEMENT
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This Registration Rights Agreement (this "Agreement") is entered into as of
November 1, 1999 by and among Plug Power Inc., a Delaware corporation (the
"Company"), and each of the parties executing a signature page hereto (each a
"Holder" and collectively the "Holders").
WHEREAS, the Holders are the owners of the number of shares of the common
stock, par value $.01 per share, of the Company (the "Common Stock") set forth
opposite their respective names on Exhibit A attached hereto (collectively, the
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"Shares").
NOW, THEREFORE, in consideration of the mutual promises and agreements set
forth herein, and other valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as follows:
The parties hereby agree as follows:
SECTION 1. DEFINITIONS.
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As used in this Agreement, the following terms have the following meanings:
"Commission" means the Securities and Exchange Commission.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended from
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time to time, or any successor statute, and the rules and regulations of the
Commission promulgated thereunder.
"Person" means any individual, corporation, partnership, limited liability
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company, joint venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision thereof.
"Prospectus" means the prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any prospectus supplement, and by all other
amendments and supplements to the prospectus, including post-effective
amendments, and in each case including all material incorporated by reference or
deemed to be incorporated by reference in such prospectus.
"Registrable Securities" means the Shares and any shares of Common Stock
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issued or issuable with respect to the Shares by reason of a stock dividend or
stock split, recapitalization or similar transaction, but excludes (i) Shares
the sale of which is covered by a Registration Statement that has been declared
effective under the Securities Act, (ii) Shares eligible for sale pursuant to
Rule 144 (or any similar provision then in force, but not Rule 144A) under the
Securities Act, including a sale pursuant to the provisions of Rule 144(k), and
(iii) Shares sold
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A)
under the Securities Act, including a sale pursuant to the provisions of Rule
144(k).
"Registration Statement" means any registration statement of the Company
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that covers any of the Registrable Securities pursuant to the provisions of this
Agreement, and all amendments and supplements to any such registration
statement, including post-effective amendments, in each case including the
Prospectus, all exhibits, and all material incorporated by reference or deemed
to be incorporated by reference in such registration statement.
"Securities Act" means the Securities Act of 1933, as amended from time to
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time, or any successor statute, and the rules and regulations of the Commission
promulgated thereunder.
SECTION 2. PIGGYBACK REGISTRATION.
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(a) If at any time or times after the date hereof while any
Registrable Securities are outstanding the Company proposes to register under
the Securities Act any shares of Common Stock (other than (i) a registration on
Form S-8 or any successor form or in connection with any employee or director
welfare, benefit or compensation plan, (ii) a registration on Form S-4 or any
successor form or in connection with an exchange offer, (iii) a registration in
connection with a securities or rights offering exclusively to the Company's
securityholders, (iv) a registration in connection with an offering solely to
employees of the Company or its affiliates, (v) a registration relating to a
transaction pursuant to Rule 145 or any other similar rule of the Commission
under the Securities Act or (vi) a shelf registration), then the Company will
give written notice of such proposed registration to the Holders at least ten
(10) business days before the filing of any Registration Statement with respect
thereto. If within five (5) business days after such notice is given, the
Company receives a written request from any Holder for the inclusion in such
Registration Statement of some or all of the Registrable Securities held by such
Holder (which request will specify the number of Registrable Securities intended
to be disposed of by such Holder and the intended method of distribution
thereof), the Company will (subject to the provisions of paragraphs (b) and (c)
of this Section 2) include such Registrable Securities in such Registration
Statement. The Company may withdraw a Registration Statement filed under this
Section 2 at any time prior to the time it becomes effective, provided that the
Company will give prompt notice of such withdrawal to the Holders which
requested to be included in such Registration Statement. Each Holder shall have
the right to request inclusion of such Holder's Registrable Securities in up to
three Registration Statements pursuant to this Section 2(a). The rights of the
Holders under this Section 2(a) will terminate on the date on which the third
Registration Statement to which such rights apply is declared effective by the
Commission.
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(b) In connection with any registration under this Section 2
involving an underwriting (an "Underwritten Offering"), the Company will not be
required to include a Holder's Registrable Securities in such Underwritten
Offering unless such Holder accepts the terms of the underwriting as agreed upon
between the Company and the underwriters selected by the Company. If the
managing underwriter(s) of an Underwritten Offering advises the Company that the
number of securities to be sold in such Underwritten Offering, including by
Persons other than the Company (including the Holders) (collectively, the
"Selling Stockholders"), is greater than the number which can be offered without
adversely affecting such Underwritten Offering, including, without limitation,
the price range or probability of success of such Underwritten Offering, then
the Company will include in such Underwritten Offering in the following
priority: (i) first, all shares the Company proposes to sell and (ii) second,
that number of shares of Common Stock proposed to be sold by the Selling
Stockholders (including Registrable Securities proposed to be sold by the
Holders) which, in the opinion of such managing underwriter(s), can be sold
without adversely affecting such Underwritten Offering, including, without
limitation, the price range or probability of success of such Underwritten
Offering, which shares shall be allocated among the Selling Stockholders
(including the Holders requesting registration) on a pro rata basis according to
the relationship that the number of shares requested to be included by each
Selling Stockholder (including the Registrable Securities requested to be
included by each Holder) in such Underwritten Offering bears to the total number
of shares requested to be registered by all Selling Stockholders (including the
total number of Registrable Securities requested to be registered by all
Holders).
(c) Each Holder hereby agrees that such Holder may not participate in
any Underwritten Offering unless such Holder (a) agrees to sell such Holder's
Registrable Securities on the basis provided in the underwriting arrangements
applicable to such Underwritten Offering and (b) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of the underwriting
arrangements for such Underwritten Offering.
SECTION 3. REGISTRATION PROCEDURES.
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(a) The Company will notify each Holder whose Registrable Securities
are included in a Registration Statement of the effectiveness of such
Registration Statement and will furnish to each such Holder, without charge,
such number of conformed copies of such Registration Statement and any post-
effective amendment thereto and such number of copies of the Prospectus
(including each preliminary Prospectus) and any amendments or supplements
thereto, as such Holder may reasonably request in order to facilitate the sale
of such Holder's Registrable Securities.
(b) The Company will promptly notify each Holder requesting
registration of, and confirm in writing, any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus
related thereto or for additional information. In addition, the Company will
promptly notify each such Holder of, and confirm in writing, the
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filing of the Registration Statement, any Prospectus supplement related thereto
or any post-effective amendment to the Registration Statement and the
effectiveness of any post-effective amendment.
(c) The Company will use commercially reasonable efforts to register
or qualify the Registrable Securities covered by any Registration Statement
under such other securities or "blue sky" laws of such states of the United
States as any Holder requesting registration reasonably requests; provided,
however, that the Company will not be required (i) to qualify as a foreign
corporation to do business in any jurisdiction in which it is not then
qualified, (ii) to file any general consent to service of process, or (iii) to
subject itself to taxation in any jurisdiction where it would not otherwise be
subject to taxation.
(d) At any time when a Prospectus relating to the Registration
Statement is required to be delivered under the Securities Act, the Company will
promptly notify each Holder holding Registrable Securities covered by such
Registration Statement of the happening of any event as a result of which the
Prospectus included in the Registration Statement includes an untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. In such event, the
Company will promptly prepare and file with the Commission and furnish to each
such Holder a reasonable number of copies of a supplement or amendment to such
Prospectus so that, as thereafter deliverable to the purchasers of Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
SECTION 4. REGISTRATION EXPENSES. The Company will bear all expenses
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incurred in connection with the registration of the Registrable Securities
pursuant to Section 2 of this Agreement; provided, however, that the Holders
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will be responsible and will pay for (i) any brokerage or underwriting discounts
and commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable
Securities, (ii) any fees or expenses of any counsel, accountants or other
persons retained or employed by the Holders and (iii) out-of-pocket expenses of
the Holders and their agents, including, without limitation, any travel costs.
SECTION 5. INDEMNIFICATION AND CONTRIBUTION.
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(a) Indemnification by the Company. The Company agrees to indemnify and
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hold harmless, to the full extent permitted by law, each Holder, its officers,
directors, employees and agents and each Person, if any, which controls such
Holder within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, (collectively, "Controlling Persons"), from and against
all losses, claims, damages, liabilities and expenses (including
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without limitation any legal or other fees and expenses reasonably incurred by
any Holder or any such Controlling Person in connection with defending or
investigating any action or claim in respect thereof) (collectively, "Damages")
to which any of them may become subject under the Securities Act or otherwise,
insofar as such Damages arise out of or are based upon (i) any untrue or alleged
untrue statement of material fact contained in any Registration Statement
(including any related preliminary or final Prospectus) pursuant to which
Registrable Securities of such Holder were registered under the Securities Act,
or (ii) any omission or alleged omission to state therein a material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as and to the extent that
such statement or omission arose out of or was based upon information regarding
such Holder or its plan of distribution which was furnished to the Company by
such Holder for use therein, provided, further that the Company will not be
liable to any person who participates as an underwriter in the offering or sale
of Registrable Securities or any Controlling Person of such underwriter, in any
such case to the extent that any such Damages arise out of or are based upon (A)
an untrue statement or alleged untrue statement or omission or alleged omission
made in such Registration Statement (including any related preliminary or final
Prospectus) in reliance upon and in conformity with information furnished to the
Company for use in connection with the Registration Statement or the Prospectus
contained therein by such underwriter or Controlling Person or (B) the failure
of such underwriter or Controlling Person to send or give a copy of the final
Prospectus furnished to it by the Company at or prior to the time such action is
required by the Securities Act to the person claiming an untrue statement or
alleged untrue statement or omission or alleged omission if such statement or
omission was corrected in such final prospectus. The obligations of the Company
under this Section 5(a) shall survive the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this Agreement
or otherwise and shall survive the termination of this Agreement.
(b) Indemnification by the Holders. Each Holder agrees to indemnify and
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hold harmless, to the full extent permitted by law, the Company, its directors,
officers, employees and agents and each Controlling Person of the Company, from
and against any and all Damages to which any of them may become subject under
the Securities Act or otherwise to the extent such Damages arise out of or are
based upon any untrue statement or omission or alleged untrue statement or
omission based upon (i) any untrue statement or alleged untrue statement of
material fact contained in any Registration Statement (including any related
preliminary or final Prospectus), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, if and to the extent that such statement or omission arose out
of or was based upon information regarding such Holder or its plan of
distribution which was furnished to the Company by such Holder for use therein,
or (ii) the failure by such Holder to deliver or cause to be delivered to any
purchaser of the shares covered by the Registration Statement the Prospectus
contained in the Registration Statement (as amended or supplemented, if
applicable) furnished by the Company to such Holder. Notwithstanding the
foregoing, (A) in no event will a Holder have any obligation under this Section
5(b) for amounts the Company pays in settlement of any such loss, claim, damage,
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liability or action if such settlement is effected without the consent of the
Holder (which consent shall not be unreasonably withheld) and (B) the total
amount for which a Holder shall be liable under this Section 5(b) shall not in
any event exceed the aggregate proceeds received by such Holder from the sale of
the Holder's Registrable Securities in such registration. The obligations of the
Holders under this Section 5(b) shall survive the completion of any offering of
Registrable Securities pursuant to a Registration Statement under this Agreement
or otherwise and shall survive the termination of this Agreement.
(c) Contribution. To the extent that the indemnification provided for in
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paragraph (a) or (b) of this Section 5 is held by a court of competent
jurisdiction to be unavailable to an indemnified party in respect of any
Damages, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, will contribute to the amount
paid or payable by such indemnified party as a result of such Damages (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand, and each Holder on the other, from the offering of
the Registrable Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company, on the one hand, and the Holders, on the
other, in connection with the statements or omissions which resulted in such
Damages, as well as any other relevant equitable considerations. The relative
fault of the Company on the one hand and of the Holders on the other hand will
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, however,
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that in no event shall the obligation of any indemnifying party to contribute
under this Section 5(c) exceed the amount that such indemnifying party would
have been obligated to pay by way of indemnification if the indemnification
provided for under paragraph (a) or (b) of this Section 5 had been available
under the circumstances.
If indemnification is available under paragraph (a) or (b) of this Section
5, the indemnifying parties will indemnify each indemnified party to the full
extent provided in such paragraphs without regard to the relative benefits to or
relative fault of said indemnifying party or indemnified party or any other
equitable consideration provided for in this Section 5(c).
The Company and each Holder agrees that it would not be just or equitable
if contribution pursuant to this Section 5(c) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to herein.
No indemnified party guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any indemnifying party who was not guilty of such fraudulent
misrepresentation.
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SECTION 6. MARKET STAND-OFF. Each Holder whose Registrable Securities are
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covered by a Registration Statement filed pursuant to Section 2 hereof agrees,
if requested by the Company in the case of a nonunderwritten offering (a
"Nonunderwritten Offering" and, together with an Underwritten Offering, an
"Offering") or if requested by the managing underwriter(s) in an Underwritten
Offering, not to effect any public sale or distribution of any of any securities
of the Company of any class included in such Offering, including a sale pursuant
to Rule 144 or Rule 144A under the Securities Act (except as part of such
Offering), during the 15-day period prior to, and during the 180-day period (or
such longer period as may be required by the managing underwriter(s)) beginning
on, the date of pricing of each Offering, to the extent timely notified in
writing by the Company or the managing underwriter(s).
SECTION 7. COVENANTS OF HOLDERS. Each Holder will (a) furnish to the
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Company such information regarding such Holder and such Holder's intended method
of distribution of the Registrable Securities as the Company may from time to
time reasonably request in writing in order to comply with the Securities Act
and the provisions of this Agreement, (b) to the extent required by the
Securities Act, deliver or cause delivery of the Prospectus contained in the
Registration Statement to any purchaser of such Holder's Registrable Securities
covered by the Registration Statement, (c) promptly notify the Company of any
sale of Registrable Securities by such Holder and (d) notify the Company as
promptly as practicable of any inaccuracy or change in information previously
furnished by the Holder to the Company or of the occurrence of any event, in
either case as a result of which any Prospectus contains or would contain an
untrue statement of a material fact regarding the Holder or the Holder's
intended method of distribution of the Registrable Securities or omits or would
omit to state any material fact regarding the Holder or the Holder's intended
method of distribution of the Registrable Securities required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances then existing, and promptly furnish to the Company any
additional information required to correct and update any previously furnished
information or required so that the Prospectus will not contain, with respect to
the Holder or the Holder's intended method of distribution of the Registrable
Securities, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
SECTION 8. MISCELLANEOUS.
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(a) Amendments and Waivers. The provisions of this Agreement, including
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this Section 8(a), may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof will not be effective, unless
the Company has obtained the written consent of the Holders of a majority in
interest of the Registrable Securities then outstanding; provided, however, that
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any such amendment, modification, supplement or waiver which materially
adversely affects the rights of any Holder shall require the prior written
consent of such Holder.
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(b) Notices. Except as set forth below, all notices and other
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communications provided for or permitted hereunder shall be in writing and shall
be deemed to have been duly given if delivered personally or sent by facsimile,
registered or certified mail (return receipt requested), postage prepaid or
courier or overnight delivery service to the Company at the following address
and to each Holder at the address set forth below such Holder's signature to
this Agreement (or at such other address for any party as shall be specified by
like notice, provided that notices of a change of address shall be effective
only upon receipt thereof), and further provided that in case of directions to
amend the Registration Statement pursuant to Section 7, a Holder must confirm
such notice in writing by overnight express delivery with confirmation of
receipt:
If to the Company: Plug Power Inc.
968 Albany-Shaker Road
Latham, New York 12110
Attention: General Counsel
Facsimile No.: 518-782-7914
In addition to the manner of notice permitted above, notices given pursuant to
Sections 1 and 6 hereof may be effected telephonically and confirmed in writing
thereafter in the manner described above.
(c) Successors and Assigns. This Agreement will inure to the benefit of
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and be binding upon the successors of each of the parties. No Holder may assign
any of its rights hereunder without the prior written consent of the Company and
any attempted assignment by any Holder without such consent will be void and of
no effect and will terminate all obligations of the Company hereunder with
respect to such Holder.
(d) Counterparts. This Agreement may be executed in any number of
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counterparts and by the parties hereto in separate counterparts, each of which
when so executed will be deemed to be an original and all of which taken
together will constitute one and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
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reference only and will not limit or otherwise affect the meaning hereof.
(f) Governing Law. This Agreement will be governed by and construed in
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accordance with the laws of the State of Delaware without regard to principles
of conflicts of law.
(g) Severability. In the event that any one or more of the provisions
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contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein will not be in any way
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impaired thereby, it being intended that all of the rights and privileges of the
Holders will be enforceable to the fullest extent permitted by law.
(h) Entire Agreement. This Agreement is intended by the parties as a
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final expression of their agreement and is intended to be the complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter, including such
agreements and understandings contained in the Limited Liability Company
Agreement forming Plug Power, LLC.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be duly executed as of the date first set forth above.
PLUG POWER INC.
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Gary Mittleman
Chief Executive Officer
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REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
EDISON DEVELOPMENT CORPORATION
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Name:
Title:
Address for Notice:
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MECHANICAL TECHNOLOGY INCORPORATED
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Name:
Title:
Address for Notice:
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GE ON-SITE POWER, INC.
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Name:
Title:
Address for Notice:
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Michael J. Cudahy
Address for Notice:
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ANTEAUS ENTERPRISES, INC.
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Name:
Title:
Address for Notice:
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ANTEAUS RETIREMENT BENEFITS PLAN [2]
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Name:
Title:
Address for Notice:
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Kevin Linsey
Address for Notice:
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EXHIBIT A
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HOLDER NUMBER OF SHARES
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Edison Development Corporation 13,704,315
Mechanical Technology Incorporated 13,704,315
GE On-Site Power, Inc. 5,250,000
Michael J. Cudahy 1,840,000
Southern California Gas Company 1,350,000
Antaeus Enterprises [1]
Antaeus Enterprises [2] [299,850]
Kevin Linsey 60,000