EXHIBIT 10.37
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered
into as of November 3, 1999 between Plug Power Inc., a Delaware corporation
("Plug Power"), and GE On-Site Power, Inc., a Delaware corporation ("GEOSP").
WHEREAS:
As of the date hereof and immediately prior to the closing of Plug Power's
initial public offering, Plug Power, LLC, a Delaware limited liability company
("LLC"), merged with and into Plug Power and all of LLC's outstanding Class A
membership interests were converted on a one-for-one basis into shares of
common stock, par value $.01 per share, of Plug Power ("Common Stock");
GEOSP currently owns an aggregate of 5,250,000 shares of Common Stock (the
"Shares");
To induce GEOSP to execute and deliver the agreement dated as of August 27,
1999 by and among GEOSP, LLC, GE Power Systems business of General Electric
Company and GE Fuel Cell Systems, L.L.C., Plug Power has agreed to provide
certain registration rights under the Securities Act of 1933, as amended, and
the rules and regulations thereunder, or any similar successor statute
(collectively, the "1933 Act"), and applicable state securities laws;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Plug Power and GEOSP hereby
agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the following
meanings:
"Cutback Registration" means any Demand Registration or Piggyback
Registration to be effected as an underwritten offering in which the managing
underwriter(s) with respect thereto advises that a limit be placed on the
number of shares of Registrable Securities which may be included in such
registration because, in such underwriter(s)' judgment, marketing or other
factors dictate such limitation is necessary to facilitate public
distribution.
"Investor" means GEOSP and any transferee or assignee thereof who agrees to
become bound by the provisions of this Agreement in accordance with Section 9
hereof.
"Investor Registration Rights Agreement" means the Registration Rights
Agreement dated as of November 3, 1999 by and among Plug Power, Edison
Development Corporation, Mechanical Technology Incorporated, Michael J.
Cudahy, Southern California Gas Company, Anteaus Enterprises, Inc., Anteaus
Retirement Benefits Plan, Jeffrey L. Lindsay, Renee M. Lindsay 1999 Gift Trust
and Dawn T. Lindsay 1999 Gift Trust.
"register," "registered," and "registration" refer to a registration
effected by preparing and filing a Registration Statement or Registration
Statements in compliance with the 1933 Act and the declaration or ordering of
effectiveness of such Registration Statement by the United States Securities
and Exchange Commission (the "SEC").
"Registration Period" means, with regard to any Investor and the shares of
Registrable Securities then held by such Investor, that period beginning on
November 3, 2001 and ending on the date on which such shares of Registrable
Securities may be publicly sold (without restriction as to the number of
shares that may be sold) pursuant to Rule 144 of the SEC under the 1933 Act.
It is understood and agreed that the termination of the Registration Period
applicable to one or more Investors shall not necessarily result in the
termination of the Registration Period applicable to other Investors.
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"Registrable Securities" means (A) the Shares and (B) any Common Stock
issued or issuable with respect to Registrable Securities by reason of a stock
dividend or stock split or in connection with a confirmation of shares,
recapitalization, merger, consolidation or other reorganization.
"Registration Statement" means a registration statement of Plug Power under
the 1933 Act.
2. Registration.
a. Demand Registration.
(i) If, on any one occasion during the Registration Period, either (A)
Investors holding at least 50% of the Registrable Securities then
outstanding or (B) GEOSP, propose to dispose of all or part of their shares
of the Registrable Securities, then such Investors or GESOP may request
Plug Power in writing to effect such registration under the 1933 Act,
stating the number of shares of Registrable Securities to be disposed of
and the intended method(s) of disposition of such shares. Holders of
Registrable Securities which request registration pursuant to this Section
2(a)(i) are referred to herein as the "Initiating Holders". In the event
that a Demand Registration becomes a Cutback Registration, each Investor
and GEOSP shall be permitted to withdraw all, but not less than all, of
their respective shares of Registrable Securities from the Registration
Statement relating to such Demand Registration by giving written notice to
Plug Power at least 5 days before the expected effective date of such
Registration Statement. In the event that each Investor and GEOSP withdraws
all of its shares of Registrable Securities from a Demand Registration
pursuant to the preceding sentence such that no shares of Registrable
Securities are included in such Demand Registration, such Demand
Registration shall not count as the one Demand Registration to which the
Investors and GEOSP are entitled under this Section 2(a) (but shall count
as the first and only Demand Registration for which Plug Power is to bear
expenses pursuant to Section 5 hereof) and such parties shall continue to
be entitled to request one Demand Registration pursuant to this Section
2(a).
(ii) Upon receipt of a request pursuant to Section 2(a)(i) above, Plug
Power shall give prompt written notice thereof to all other Investors who
hold Registrable Securities. Upon receipt of such request, Plug Power shall
use its best efforts to promptly effect the registration under the 1933 Act
of all shares of Registrable Securities specified in the requests of the
Initiating Holders and the written requests (stating the number of shares
of Registrable Securities to be disposed of and the intended method of
disposition of such shares) of other holders of shares of Registrable
Securities given within 20 days after receipt of such notice from Plug
Power, all to the extent requisite to permit the disposition (in accordance
with the intended methods of disposition) of the Registrable Securities to
be registered; provided that in no event will Plug Power be obligated to
(A) register a number of shares of Registrable Securities pursuant to this
Section 2(a) in excess of (x) 3,000,000 (as appropriately adjusted for
stock splits, stock dividends, mergers, recapitalizations and similar
transactions) less (y) the aggregate number of shares of Registrable
Securities included in Registration Statements pursuant to Section 2(c)
below (the "Registration Limit") or (B) effect more than one registration
pursuant to this Section 2(a). In the event that the aggregate number of
shares of Registrable Securities for which registration is requested in
accordance with this Section 2(a) exceeds the Registration Limit, such
aggregate number will be reduced to the Registration Limit and will be
allocated among the holders requesting registration on a pro rata basis in
proportion to the number of Registrable Securities requested to be
registered by such holders.
(iii) Notwithstanding the foregoing, Plug Power may postpone taking
action with respect to a Demand Registration for a reasonable period of
time after receipt of the request (not exceeding 60 days) if, in the good
faith opinion of Plug Power's Board of Directors, effecting the
registration would adversely affect a material financing, acquisition,
disposition of assets or stock, merger or other comparable transaction or
would require Plug Power to make public disclosure of information the
public disclosure of which would have a material adverse effect upon Plug
Power; provided that Plug Power shall not delay such action pursuant to
this sentence more than twice in any twelve (12) month period. The
Registration Statement (and each amendment or supplement thereto, and each
request for acceleration of effectiveness thereof) shall be provided to and
approved by GEOSP and its counsel prior to its filing or other submission,
such approval not to be unreasonably withheld.
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b. Underwritten Offering. If any offering pursuant to a Registration
Statement pursuant to Section 2(a) hereof involves an underwritten offering,
GEOSP shall have the right to select one legal counsel and an investment
banker or bankers and manager or managers to administer its interest in the
offering, which investment banker or bankers or manager or managers shall be
reasonably satisfactory to Plug Power.
c. Piggy-Back Registrations. If at any time after the date hereof and prior
to the expiration of the Registration Period Plug Power proposes to file with
the SEC a Registration Statement relating to an offering for its own account
or the account of others under the 1933 Act of any of its equity securities
(other than on Form S-4 or Form S-8 or their then equivalents relating to
equity securities to be issued solely in connection with any acquisition of
any entity or business or equity securities issuable in connection with stock
option or other employee benefit plans) Plug Power shall send to GEOSP written
notice of such proposed filing and, if within twenty (20) days after receipt
of such notice, GEOSP shall so request in writing, Plug Power shall include in
such Registration Statement all or any part of the Registrable Securities
GEOSP requests to be registered, except that if any underwritten public
offering for the account of Plug Power is a Cutback Registration, then Plug
Power shall be obligated to include in such Registration Statement only such
limited portion of the Registrable Securities with respect to which GEOSP has
requested inclusion hereunder; provided, that no portion of the equity
securities which Plug Power is offering for its own account shall be excluded.
Any exclusion of Registrable Securities shall be made pro rata among the
Investors seeking to include Registrable Securities, in proportion to the
number of Registrable Securities sought to be included by such Investors;
provided, however, that Plug Power shall not exclude any Registrable
Securities unless Plug Power has first excluded all outstanding securities,
the holders of which are not entitled to inclusion of such securities in such
Registration Statement or are not entitled to pro rata inclusion with the
Registrable Securities; and provided, further, however, that, after giving
effect to the immediately preceding proviso, any exclusion of Registrable
Securities shall be made pro rata with holders of other securities having the
right hereunder or under the Investor Registration Rights Agreement to include
such securities in the Registration Statement. No right to registration of
Registrable Securities under this Section 2(c) shall be construed to limit any
registration required under Section 2(a) hereof. The obligations of Plug Power
under this Section 2(c) may be waived by GEOSP. If an offering in connection
with which GEOSP is entitled to registration under this Section 2(c) is an
underwritten offering, then GEOSP shall, unless otherwise agreed by Plug
Power, offer and sell such Registrable Securities in an underwritten offering
using the same underwriter or underwriters and, subject to the provisions of
this Agreement, on the same terms and conditions as other shares of Common
Stock included in such underwritten offering.
GEOSP and each Investor shall have the right to request inclusion of their
Registrable Securities in up to three Registration Statements (excluding for
purposes of determining such number of Registration Statements any
Disqualified Registration Statement (as defined below)) pursuant to this
Section 2(c). The rights of GEOSP and each other holder of Registrable
Securities under this Section 2(c) will terminate on the date on which the
third Registration Statement (excluding any Disqualified Registration
Statement) to which such rights apply has been declared effective by the SEC.
The term "Disqualified Registration Statement" means any Registration
Statement with respect to which Registrable Securities are requested to be
included pursuant to this Section 2(c) where the aggregate number of shares of
Registrable Securities actually included in such Registration Statement is
reduced pursuant to a Cutback Registration to a number of shares which is less
than the lower of (x) 750,000 or (y) 80% of the aggregate number of shares of
Registrable Securities requested to be included in such Registration
Statement.
d. Eligibility for Form S-3. Plug Power shall file all reports required to
be filed by Plug Power with the SEC in a timely manner so as to establish
eligibility for the use of Form S-3. In the event that Form S-3 is not
available for sale by GEOSP of the Registrable Securities, Plug Power shall
register the sale on another appropriate form reasonably acceptable to GEOSP.
e. Cutback Registration.
(i) If a Demand Registration becomes a Cutback Registration, Plug Power
will include in any such registration to the extent of the number which the
managing underwriter of such offering advises Plug Power can be sold in
such offering (i) first, Registrable Securities requested to be included in
such registration by
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GEOSP and (ii) second, other securities of Plug Power proposed to be
included in such registration, allocated among the holders thereof in
accordance with the priorities then existing among Plug Power and the
holders of such other securities; and any securities so excluded shall be
withdrawn from and shall not be included in such Demand Registration.
(ii) If a Piggyback Registration becomes a Cutback Registration, Plug
Power will include in such registration to the extent of the amount of the
securities which the managing underwriter advises Plug Power can be sold in
such offering:
(A) if such registration as initially proposed by Plug Power was
solely a primary registration of its securities, (x) first, the
securities proposed by Plug Power to be sold for its own account, (y)
second, any Registrable Securities requested to be included in such
registration by GEOSP and any other securities of Plug Power proposed
to be included in such registration by the holders thereof pursuant to
the Investor Registration Rights Agreement, allocated among GEOSP and
such holders on a pro rata basis in proportion to the number of
Registrable Securities requested to be registered by each, and
(z) third, any other securities of Plug Power proposed to be included
in such registration, allocated among the holders thereof in accordance
with the priorities then existing among Plug Power and such holders;
and
(B) if such registration as initially proposed by Plug Power was in
whole or in part requested by holders of securities of Plug Power,
other than holders of Registrable Securities in their capacities as
such, pursuant to a Demand Registration, (x) first, such securities
held by the holders initiating such registration and, if applicable,
any securities proposed by Plug Power to be sold for its own account,
allocated in accordance with the priorities then existing among Plug
Power any such holders, (y) second, any Registrable Securities
requested to be included in such registration by GEOSP and any other
securities of Plug Power proposed to be included in such registration
by the holders thereof pursuant to the Investor Registration Rights
Agreement, allocated among GEOSP and such holders on a pro rata basis
in proportion to the number of Registrable Securities requested to be
registered by each, and (z) third, any other securities of Plug Power
proposed to be included in such registration, allocated among the
holders thereof in accordance with the priorities then existing among
Plug Power and such holders; and any securities so excluded shall be
withdrawn from and shall not be included in such Piggyback
Registration.
3. Obligations of the Company.
In connection with the registration of the Registrable Securities, Plug
Power shall have the following obligations:
a. Plug Power shall prepare promptly, and file with the SEC as required by
Section 2(a), a Registration Statement with respect to the number of
Registrable Securities specified as provided in Section 2(a), and thereafter
shall use its best efforts to cause such Registration Statement relating to
Registrable Securities to become effective as soon as possible after such
filing, and keep the Registration Statement effective at all times until the
earlier of (i) which is 180 days after the effective date of the Registration
Statement, or (ii) the date on which all Investors with Registrable Securities
included in the Registration Statement have sold such Registrable Securities,
which Registration Statement (including any amendments or supplements thereto
and prospectuses contained therein) shall 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 in which they were made, not misleading. Each Investor shall
give notice to Plug Power when it has sold all of its Registrable Securities.
b. Plug Power shall prepare and file with the SEC such amendments
(including post-effective amendments) and supplements to the Registration
Statement and the prospectus used in connection with the Registration
Statement as may be necessary to keep the Registration Statement effective for
as long as such Registration Statement is required to remain effective
pursuant to this Agreement and, during such period, comply with the
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provisions of the 1933 Act with respect to the disposition of all Registrable
Securities of Plug Power covered by the Registration Statement until such time
as all of such Registrable Securities have been disposed of in accordance with
the intended methods of disposition by the seller or sellers thereof as set
forth in the Registration Statement.
c. Plug Power shall furnish to GEOSP and its legal counsel (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by Plug Power, one copy of the Registration Statement and any
amendment thereto, each preliminary prospectus and prospectus and each
amendment or supplement thereto, and (ii) such number of copies of a
prospectus, including a preliminary prospectus, and all amendments and
supplements thereto and such other documents as GEOSP may reasonably request
in order to facilitate the disposition of the Registrable Securities owned by
GEOSP.
d. In the case of the Registration Statement referred to in Section 2(a),
Plug Power shall furnish to the counsel of GEOSP each letter written by or on
behalf of Plug Power to the SEC or the staff of the SEC, and each item of
correspondence from the SEC or the staff of the SEC, in each case relating to
such Registration Statement (other than any portion of any thereof which
contains information for which Plug Power has sought confidential treatment).
e. Plug Power shall use reasonable efforts to (i) register and qualify the
Registrable Securities covered by the Registration Statement under such other
securities or "blue sky" laws of such jurisdictions in the United States as
GEOSP reasonably requests (or obtain exemption therefrom), (ii) prepare and
file in those jurisdictions such amendments (including post-effective
amendments) and supplements to such registrations and qualifications as may be
necessary to maintain the effectiveness thereof during the period in which
Plug Power is required to keep the Registration Statement effective (iii) take
such other actions as may be necessary to maintain such registrations and
qualifications (or obtain exemptions therefrom) in effect at all times during
the period in which Plug Power is required to keep the Registration Statement
effective, and (iv) take all other actions reasonably necessary or advisable
to qualify the Registrable Securities for sale in such jurisdictions;
provided, however, that Plug Power shall not be required in connection
therewith or as a condition thereto to (a) qualify to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
Section 3(e), (b) subject itself to general taxation in any such jurisdiction,
or (c) file a general consent to service of process in any such jurisdiction.
f. In the event GEOSP selects underwriters for the offering, Plug Power
shall enter into and perform its obligations under an underwriting agreement,
in usual and customary form, including, without limitation, customary
indemnification and contribution obligations, with the underwriters of such
offering. Plug Power shall not be required to provide such Underwriter with
rights of first refusal with respect to any subsequent offerings, including
debt and equity financing, or any requirements with respect to mergers,
acquisitions or other business combinations.
g. As promptly as practicable after becoming aware of such event, Plug
Power shall notify GEOSP of the happening of any event, of which Plug Power
has knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission 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, and shall promptly
(under the circumstances) prepare a supplement or amendment to the
Registration Statement to correct such untrue statement or omission, and
deliver such number of copies of such supplement or amendment to GEOSP as it
may reasonably request.
h. Plug Power shall use its best efforts to prevent the issuance of any
stop order or other suspension of effectiveness of a Registration Statement,
and, if such an order is issued, shall use its best efforts to obtain the
withdrawal of such order at the earliest possible moment and to notify GEOSP
(or, in the event of an underwritten offering, the managing underwriters) of
the issuance of such order and the resolution thereof.
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i. Plug Power shall permit a single firm of counsel, designated as selling
stockholders' counsel by GEOSP, to review the Registration Statement and all
amendments and supplements thereto a reasonable period of time prior to their
filing with the SEC, and not file any document in a form to which such counsel
reasonably objects.
j. Plug Power shall make generally available to its security holders as
soon as practicable, but not later than ninety (90) days after the close of
the period covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering a twelve-month period
beginning not later than the first day of Plug Power's fiscal quarter next
following the effective date of the Registration Statement, which requirement
will be deemed to be satisfied if Plug Power timely files complete and
accurate information on Forms 10-Q, 10-K and 8-K under the 1934 Act.
k. At the request of GEOSP, Plug Power shall furnish, on the date that
Registrable Securities are delivered to an underwriter, if any, for sale in
connection with the Registration Statement (i) if required by an underwriter,
a "comfort" letter, dated such date, from Plug Power's independent certified
public accountants in form and substance as is customarily given by
independent certified public accountants to underwriters in an underwritten
public offering, addressed to the underwriters, and (ii) an opinion, dated as
of such date, from counsel representing Plug Power for purposes of such
Registration Statement and the underwriting agreement, in form, scope and
substance as is customarily given in an underwritten public offering,
addressed to the underwriters and GEOSP.
l. Plug Power shall make available for inspection by (i) GEOSP, (ii) any
underwriter participating in any disposition pursuant to the Registration
Statement, (iii) one firm of attorneys and one firm of accountants or other
agents retained by GEOSP, and (iv) one firm of attorneys retained by all such
underwriters (collectively, the "Inspectors") all pertinent financial and
other records, and pertinent corporate documents and properties of Plug Power
(collectively, the "Records"), as shall be reasonably deemed necessary by each
Inspector to enable each Inspector to exercise its due diligence
responsibility, and cause Plug Power's officers, directors and employees to
supply all information which any Inspector may reasonably request for purposes
of such due diligence; provided, however, that each Inspector shall hold in
confidence and shall not make any disclosure (except to GEOSP and to other
Inspectors) of any Record or other information which Plug Power determines in
good faith to be confidential, and of which determination the Inspectors are
so notified, unless (a) the disclosure of such Records is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (b) the
release of such Records is ordered pursuant to a subpoena or other order from
a court or government body of competent jurisdiction, or (c) the information
in such Records has been made generally available to the public other than by
disclosure in violation of this or any other agreement. Plug Power shall not
be required to disclose any confidential information in such Records to any
Inspector until and unless such Inspector shall have entered into
confidentiality agreements (in form and substance satisfactory to Plug Power)
with Plug Power with respect thereto, substantially in the form of this
Section 3(l). GEOSP agrees that it shall, upon learning that disclosure of
such Records is sought in or by a court or governmental body of competent
jurisdiction or through other means, give prompt notice to Plug Power and
allow Plug Power, at its expense, to undertake appropriate action to prevent
disclosure of, or to obtain a protective order for, the Records deemed
confidential.
m. Plug Power shall hold in confidence and not make any disclosure of
information concerning GEOSP provided to Plug Power unless (i) disclosure of
such information is necessary to comply with federal or state securities laws,
(ii) the disclosure of such information is necessary to avoid or correct a
misstatement or omission in any Registration Statement, (iii) the release of
such information is ordered pursuant to a subpoena or other order from a court
or governmental body of competent jurisdiction, or (iv) such information has
been made generally available to the public other than by disclosure in
violation of this or any other agreement. Plug Power agrees that it shall,
upon learning that disclosure of such information concerning GEOSP is sought
in or by a court or governmental body of competent jurisdiction or through
other means, give prompt notice to GEOSP and allow GEOSP, at its expense, to
undertake appropriate action to prevent disclosure of, or to obtain a
protective order for, such information.
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n. Plug Power shall either (i) cause all the Registrable Securities covered
by the Registration Statement to be listed on the New York Stock Exchange or
the American Stock Exchange and on each additional national securities
exchange on which securities of the same class or series issued by Plug Power
are then listed, if any, if the listing of such Registrable Securities is then
permitted under the rules of such exchange and Plug Power meets the objective
listing criteria of such exchange, or (ii) secure designation and quotation of
all the Registrable Securities covered by the Registration Statement on the
Nasdaq National Market or Nasdaq SmallCap Market, if the designation and
quotation of such Registrable Securities is then permitted under the rules of
the Nasdaq National Market or Nasdaq SmallCap Market, as the case may be, and
Plug Power meets the objective listing criteria of the Nasdaq National Market
or Nasdaq SmallCap Market, as the case may be.
o. Plug Power shall provide a transfer agent and registrar, which may be a
single entity, for the Registrable Securities, and shall provide CUSIP numbers
for the Registrable Securities, not later than the effective date of the
Registration Statement.
p. Plug Power shall cooperate with GEOSP and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing the Registrable Securities to be offered pursuant to
the Registration Statement and enable such certificates to be in such
denominations or amounts, as the case may be, as the managing underwriter or
underwriters, if any, or GEOSP may reasonably request and registered in such
names as the managing underwriter or underwriters, if any, or GEOSP may
request. No later than the effective date of any Registration Statement
registering the resale of Registrable Securities, Plug Power shall deliver to
its transfer agent instructions, accompanied by any reasonably required
opinion of counsel, that permit sales of legended securities in a timely
fashion that complies with then mandated securities settlement procedures for
regular way market transactions.
q. Plug Power shall take all other reasonable actions necessary to expedite
and facilitate disposition by GEOSP of Registrable Securities pursuant to the
Registration Statement.
4. Obligations of Geosp.
In connection with the registration of the Registrable Securities, GEOSP
shall have the following obligations:
a. It shall be a condition precedent to the obligations of Plug Power to
complete the registration pursuant to this Agreement and to make payments
under Section 2(c) hereof with respect to the Registrable Securities of GEOSP
that GEOSP shall furnish to Plug Power such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of
the Registrable Securities held by it as shall be reasonably required to
effect the registration of such Registrable Securities and shall execute such
documents in connection with such registration as Plug Power may reasonably
request. At least five (5) days prior to the first anticipated filing date of
the Registration Statement, Plug Power shall notify GEOSP in writing of the
information Plug Power requires from GEOSP if it elects to have any of its
Registrable Securities included in the Registration Statement. GEOSP agrees to
notify Plug Power as promptly as practicable of any inaccuracy or change in
information previously furnished by GEOSP to Plug Power or of the occurrence
of any event in either case as a result of which any prospectus relating to
the registration contains or would contain an untrue statement of a material
fact regarding GEOSP or GEOSP's intended method of distribution of the
Registrable Securities or omits or would omit to state any material fact
regarding GEOSP or GEOSP'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 to furnish to Plug Power any additional information required to
correct and update any previously furnished information or required so that
the prospectus shall not contain, with respect to GEOSP or the 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.
b. GEOSP by its acceptance of the Registrable Securities agrees to
cooperate with Plug Power as reasonably requested by Plug Power in connection
with the preparation and filing of the Registration Statement
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hereunder, unless GEOSP has notified Plug Power in writing of its election to
exclude all of its Registrable Securities from the Registration Statement.
c. In the event GEOSP determines to engage the services of an underwriter,
GEOSP agrees to enter into and perform its obligations under an underwriting
agreement, in usual and customary form, including, without limitation,
customary indemnification and contribution obligations, with the managing
underwriter of such offering and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of the Registrable
Securities, unless GEOSP has notified Plug Power in writing of GEOSP's
election to exclude all of its Registrable Securities from the Registration
Statement.
d. GEOSP agrees that, upon receipt of any notice from Plug Power of the
happening of any event of the kind described in Section 3(g) or 3(h), GEOSP
will immediately discontinue disposition of Registrable Securities pursuant to
the Registration Statement covering such Registrable Securities until GEOSP's
receipt of the copies of the supplemented or amended prospectus contemplated
by Section 3(g) or 3(h) and, if so directed by Plug Power, GEOSP shall deliver
to Plug Power (at the expense of Plug Power) or destroy (and deliver to Plug
Power a certificate of destruction) all copies in GEOSP's possession, of the
prospectus covering such Registrable Securities current at the time of receipt
of such notice.
e. An Investor may not participate in any underwritten registration
hereunder unless such Investor (i) agrees to sell its Registrable Securities
on the basis provided in any underwriting arrangements approved by such
Investor, (ii) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements, and (iii) agrees to pay its
pro rata share of all underwriting discounts and commissions.
5. Expenses of Registration.
All reasonable expenses (other than underwriting fees, discounts, selling
concessions and commissions) incurred in connection with registrations,
filings or qualifications pursuant to Sections 2 and 3, including, without
limitation, all registration, listing and qualifications fees, printers and
accounting fees, the fees and disbursements of counsel for Plug Power, the
fees and disbursements of one counsel for GEOSP, and the costs incident to an
underwritten offering shall be borne by Plug Power, subject to Section 3(f)
hereof.
6. Indemnification.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, Plug Power will indemnify, hold harmless
and defend (i) each Investor who has Registrable Securities included in the
Registration Statement, (ii) the directors, officers and each person who
controls such Investor within the meaning of the 1933 Act or the Securities
Exchange Act of 1934, as amended (the "1934 Act"), if any, and (iii) any
underwriter (as defined in the 1933 Act) for such Investor; and the directors,
officers and each person who controls any such underwriter within the meaning
of the 1933 Act or the 1934 Act, if any, (each, an "Indemnified Person"),
against any losses, claims, damages, liabilities or expenses (joint or
several) (collectively, "Claims") to which any of them may become subject
insofar as such Claims (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Registration
Statement or the omission or alleged omission to state a material fact therein
required to be stated or necessary to make the statements therein not
misleading, (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if Plug Power files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged
omission to state therein any material fact necessary to make the statements
made therein, in light of the circumstances under which the statements therein
were made, not misleading, or (iii) any violation or alleged violation by Plug
Power of the 1933 Act, the 1934 Act, any other law, including, without
limitation, any state securities law, or any rule or regulation thereunder
relating to the
8
offer or sale of the Registrable Securities pursuant to a Registration
Statement (the matters in the foregoing clauses (i) through (iii) being,
collectively, "Violations"). Subject to the restrictions set forth in Section
6(d) with respect to the number of legal counsel, Plug Power shall reimburse
GEOSP and each such underwriter or controlling person, promptly as such
expenses are incurred and are due and payable, for any legal fees or other
expenses reasonably incurred by them in connection with investigating or
defending any such Claim. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(a): (i)
shall not apply to a Claim arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in
writing to Plug Power by any Indemnified Person or underwriter for such
Indemnified Person expressly for use in connection with the preparation of the
Registration Statement or any such amendment thereof or supplement thereto, if
such prospectus was timely made available to GEOSP by Plug Power pursuant to
Section 3(c) hereof; (ii) with respect to any preliminary prospectus, shall
not inure to the benefit of any such person from whom the person asserting any
such Claim purchased the Registrable Securities that are the subject thereof
(or to the benefit of any person controlling such person) if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected in the prospectus, as then amended or supplemented, if such
prospectus was timely made available by Plug Power pursuant to Section 3(c)
hereof; (iii) shall not be available to the extent such Claim is based on a
failure of GEOSP to deliver or to cause to be delivered the prospectus made
available by Plug Power; and (iv) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior
written consent of Plug Power, which consent shall not be unreasonably
withheld. Such indemnity shall remain in full force and effect regardless of
any investigation made by or on behalf of the Indemnified Person and shall
survive the transfer of the Registrable Securities by GEOSP pursuant to
Section 9.
b. In connection with any Registration Statement in which an Investor is
participating, such Investor, severally and not jointly, agrees to indemnify,
hold harmless and defend, to the same extent and in the same manner set forth
in Section 6(a), Plug Power, each of its directors, each of its officers who
signs the Registration Statement, each person, if any, who controls Plug Power
within the meaning of the 1933 Act or the 1934 Act, any underwriter and any
other stockholder selling securities pursuant to the Registration Statement or
any of its directors or officers or any person who controls such stockholder
or underwriter within the meaning of the 1933 Act or the 1934 Act
(collectively and together with an indemnified Person, an "Indemnified
Party"), against any Claim to which any of them may become subject, under the
1933 Act, the 1934 Act or otherwise, insofar as such Claim arises out of or is
based upon any Violation, in each case to the extent (and only to the extent)
that such violation occurs in reliance upon and in conformity with written
information furnished to Plug Power by such Investor expressly for use in
connection with such Registration Statement; and such Investor will reimburse
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 6(b) shall not apply to amounts
paid in settlement of any Claim if such settlement is effected without the
prior written consent of such Investor, which consent shall not be
unreasonably withheld; provided, further, however, that such Investor shall be
liable under this Section 6(b) for only that amount of a Claim as does not
exceed the net proceeds to such Investor as a result of the sale of
Registrable Securities pursuant to such Registration Statement. Such indemnity
shall remain in full force and effect regardless of any investigation made by
or on behalf of such Indemnified Party and shall survive the transfer of the
Registrable Securities by such Investor pursuant to Section 9. Notwithstanding
anything to the contrary contained herein, the indemnification agreement
contained in this Section 6(b) with respect to any preliminary prospectus
shall not inure to the benefit of any Indemnified Party if the untrue
statement or omission of material fact contained in the preliminary prospectus
was corrected on a timely basis in the prospectus, as then amended or
supplemented.
c. Plug Power shall be entitled to receive indemnities from underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in any distribution, to the same extent as provided above, with
respect to information such persons so furnished in writing by such persons
expressly for inclusion in the Registration Statement.
d. Promptly after receipt by an Indemnified Person or Indemnified Party
under this Section 6 of notice of the commencement of any action (including
any governmental action), such Indemnified Person or Indemnified
9
Party shall, if a Claim in respect thereof is to made against any indemnifying
party under this Section 6, deliver to the indemnifying party a written notice
of the commencement thereof, and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires,
jointly with any other indemnifying party similarly noticed, to assume control
of the defense thereof with counsel mutually satisfactory to the indemnifying
party and the Indemnified Person or the Indemnified Party, as the case may be;
provided, however, that an Indemnified Person or Indemnified Party shall have
the right to retain its own counsel with the fees and expenses to be paid by
the indemnifying party, if, in the reasonable opinion of counsel retained by
the indemnifying party, the representation by such counsel of the Indemnified
Person or Indemnified Party and the indemnifying party would be inappropriate
due to actual or potential differing interests between such Indemnified Person
or Indemnified Party and any other party represented by such counsel in such
proceeding. Plug Power shall pay reasonable fees for only one separate legal
counsel for GEOSP, and such legal counsel shall be selected by GEOSP;
provided, that legal fees of such firm shall be reasonable. The failure to
deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action shall not relieve such indemnifying party
of any liability to the Indemnified Person or Indemnified Party under this
Section 6, except to the extent that the indemnifying party is prejudiced in
its ability to defend such action. The indemnification required by this
Section 6 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as such expense, loss, damage or
liability is incurred and is due and payable.
7. Contribution.
To the extent any indemnification by an indemnifying party is prohibited or
limited by law, the indemnifying party agrees to make the maximum contribution
with respect to any amounts for which it would otherwise be liable under
Section 6 to the fullest extent permitted by law; provided, however, that (i)
no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6, (ii) no seller of Registrable Securities guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall
be entitled to contribution from any seller of Registrable Securities who was
not guilty of such fraudulent misrepresentation, and (iii) contribution by any
seller of Registrable Securities shall be limited in amount to the net amount
of proceeds received by such seller from the sale of such Registrable
Securities.
8. Reports under the 1934 Act.
With a view to making available to holders of Registrable Securities the
benefits of Rule 144 promulgated under the 1933 Act or any other similar rule
or regulation of the SEC that may at any time permit GEOSP to sell securities
of Plug Power to the public without registration ("Rule 144"), Plug Power
agrees to:
a. make and keep public information available, as those terms are
understood and defined in Rule 144;
b. file with the SEC in a timely manner all reports and other documents
required of Plug Power under the 1933 Act and the 1934 Act so long as Plug
Power remains subject to such requirements and the filing of such reports and
other documents is required for the applicable provisions of Rule 144; and
c. furnish to GEOSP so long as it owns Registrable Securities, promptly
upon request, (i) a written statement by Plug Power as to whether it has
complied with the current public information and reporting requirements of
Rule 144, the 1933 Act and the 1934 Act and (ii) such other information as may
be reasonably requested to permit GEOSP to sell such securities pursuant to
Rule 144 without registration.
9. Assignment of Registration Rights.
The rights to have Plug Power register Registrable Securities pursuant to
this Agreement shall be automatically assignable by GEOSP to any transferee of
all or any portion of Registrable Securities if: (i) GEOSP agrees in writing
with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to Plug Power within a reasonable time after such
assignment, (ii) Plug Power is, promptly following such
10
transfer or assignment, furnished with written notice of (a) the name and
address of such transferee or assignee, and (b) the securities with respect to
which such registration rights are being transferred or assigned,
(iii) immediately following such transfer or assignment the further
disposition of such securities by the transferee or assignee is restricted
under the 1933 Act and applicable state securities laws, (iv) at or before the
time Plug Power receives the written notice contemplated by clause (ii) of
this sentence the transferee or assignee agrees in writing with Plug Power to
be bound by all of the obligations of GEOSP contained herein, and (v) in the
event the assignment occurs subsequent to the date of effectiveness of the
Registration Statement required to be filed pursuant to Section 2(a)(i), the
transferee agrees to pay all reasonable expenses of amending or supplementing
such Registration Statement to reflect such assignment. Until the requirements
of this Section 9 have been satisfied with respect to any transfer or
assignment, such transfer or assignment, as the case may be, will not be
effective and the proposed transferee or assignee will not be entitled to any
benefits of or rights under this Agreement.
10. Amendment of Registration Rights.
Provisions of this Agreement may be amended and the observance thereof may
be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of Plug Power
and GEOSP. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon GEOSP and Plug Power.
11. Miscellaneous.
a. A person or entity is deemed to be a holder of Registrable Securities
whenever such person or entity owns of record such Registrable Securities. If
Plug Power receives conflicting instructions, notices or elections from two or
more persons or entities with respect to the same Registrable Securities, Plug
Power shall act upon the basis of instructions, notice or election received
from the registered owner of such Registrable Securities.
b. Notices. Any notices required or permitted to be given under the terms
of this Agreement shall be in writing and shall be deemed given (a) when
delivered personally, (b) five days after deposit, postage prepaid, if mailed
by registered or certified mail, return receipt requested, or (c) upon
transmission if transmitted by telex or facsimile (with an electronic
confirmation thereof to the transmitter). The addresses for such
communications shall be:
If to Plug Power: Plug Power Inc.
968 Albany-Shaker Road
Latham, New York 12110
Attn: Mr. Gary Mittleman Goodwin, Procter & Hoar LLP Exchange Place
Telecopy: (518) 782-7884 Boston, Massachusetts 02109
Attn: Robert P. Whalen, Jr., P.C.
Telecopy: (617) 523-1231
With a copy to: If to GEOSP: GE On-Site Power, Inc.
968 Albany-Shaker Road, Building 1
Latham, New York 12110
Attn: Mr. Barry Glickman
Telecopy: (518) 785-2831
With a copy to: Long Aldridge & Norman LLP
One Peachtree Center, Suite 5300
Atlanta, Georgia 30308
Jonathan H. Short, Esq.
Telecopy: (404) 527-4198
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Each party shall provide notice to the other party of any change in
address.
c. Failure of any party to exercise any right or remedy under this
Agreement or otherwise, or delay by a party in exercising such right or
remedy, shall not operate as a waiver thereof.
d. This Agreement shall be enforced, governed by and construed in
accordance with the laws of the State of New York without giving effect to any
choice or conflict of law provision or rule (whether of the State of New York
or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. In the event that any provision
of this Agreement is invalid or unenforceable under any applicable statute or
rule of law, then such provision shall be deemed inoperative to the extent
that it may conflict therewith and shall be deemed modified to conform with
such statute or rule of law. Any provision hereof which may prove invalid or
unenforceable under any law shall not affect the validity or enforceability of
any other provision hereof.
e. This Agreement constitutes the entire agreement among the parties hereto
with respect to the subject matter hereof and thereof. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein and therein. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof and thereof.
f. Subject to the requirements of Section 9 hereof, this Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties hereto.
g. The headings in this Agreement are for convenience of reference only and
shall not limit or otherwise affect the meaning hereof.
h. This Agreement may be executed in two or more identical counterparts,
each of which shall be deemed an original but all of which shall constitute
one and the same agreement. This Agreement, once executed by a party, may be
delivered to the other party hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this
Agreement.
PLUG POWER INC.
By: /s/ Gary Mittleman
-------------------------------------
Gary Mittleman
President and Chief Executive
Officer
GE ON-SITE POWER, INC.
By: /s/ Barry Glickman
-------------------------------------
Name: Barry Glickman
-------------------------------------
Its: President
-------------------------------------
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