UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 7)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PLUG POWER INC.
(Exact name of registrant as specified in charter)
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Delaware |
22-3672377 |
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(State of incorporation |
(IRS Employer |
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or organization) |
Identification No.) |
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968 Albany Shaker Road |
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Latham, New York |
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12110 |
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(Address of principal executive offices) |
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(Zip Code) |
Securities to be registered pursuant to Section 12(b) of the Act:
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Name of each exchange |
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Title of each class |
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on which each |
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to be so registered |
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class is to be registered |
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Preferred Stock Purchase Rights |
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The NASDAQ Stock Market LLC |
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If this Form relates to the registration of a class of securities pursuant to Section 12(b) of the Exchange Act and is effective pursuant to General Instruction A.(c), check the following box. x
If this Form relates to the registration of a class of securities pursuant to Section 12(g) of the Exchange Act and is effective pursuant to General Instruction A.(d), check the following box. o
Securities Act registration statement file number to which this form relates: Not applicable.
Securities to be registered pursuant to Section 12(g) of the Act: None
EXPLANATORY NOTE
This Amendment to Form 8-A is being filed pursuant to Rule 12b-15 under the Securities Exchange Act of 1934, as amended solely for the purpose of correcting the exhibit listing which incorrectly stated that Exhibit 4.7 the Amendment No. 6, effective as of December 19, 2016 to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent was incorporated by reference to when in fact Exhibit 4.7 was filed with the 8-A.
This Amendment No. 7 to Form 8-A amends and supplements the Registration Statement on Form 8-A filed by Plug Power Inc., a Delaware corporation (the “Company”), with the Securities and Exchange Commission (the “SEC”) on June 24, 2009, as amended by the Amendment No. 1 to Form 8-A filed by the Company with the SEC on May 6, 2011, the Amendment No. 2 to Form 8-A filed by the Company with the SEC on March 19, 2012, the Amendment No. 3 to Form 8-A filed by the Company with the SEC on March 26, 2012, the Amendment No. 4 to Form 8-A filed by the Company with the SEC on February 13, 2013, the Amendment No. 5 to Form 8-A filed by the Company with the SEC on May 8, 2013 and the Amendment No. 6 to Form 8-A filed by the Company with the SEC on December 19, 2016 (including the exhibits thereto, the “Form 8-A”). Capitalized terms used without definition herein shall have the meaning set forth in the Shareholder Rights Agreement, dated June 23, 2009 (as amended, the “Rights Agreement”), between the Company and Broadridge Corporate Issuer Solutions, Inc. (“Broadridge”), as rights agent.
Item 1. Description of Registrant’s Securities to be Registered.
Item 1 of the Form 8-A is amended and supplemented by adding the following:
Amendment to Rights Agreement
On December 18, 2016, the Board of Directors of the Company approved an Amendment No. 6 to Shareholder Rights Agreement (the “Amendment No. 6”). The Amendment No. 6 amends the definition of “Acquiring Person” to allow Tech Opportunities LLC and its affiliates or associates to acquire (i) shares of the Company’s Common Stock $0.01 per share (“Common Stock”), and warrants to purchase Common Stock of the Company (the “Common Offering Warrants”), and the shares of Common Stock of the Company underlying such Common Offering Warrants, through an underwritten public offering (the “December 2016 Common Stock Offering”), and (ii) shares of the Company’s Series D Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), and warrants to purchase Common Stock of the Company (the “Preferred Offering Warrants”), and the shares of Common Stock of the Company underlying such Preferred Offering Warrants, through an underwritten direct offering (the “December 2016 Preferred Stock Offering” and, together with the December 2016 Common Stock Offering, the “December 2016 Securities Offerings”), without triggering the rights under the Rights Agreement. If Tech Opportunities LLC becomes the beneficial owner of 15% or more of the shares of Common Stock and at such time Tech Opportunities LLC is or is deemed to be the beneficial owner of any shares of Common Stock other than by virtue of owning shares of Common Stock, Series D Preferred Stock, Common Offering Warrants and Preferred Offering Warrants acquired through the December 2016 Securities Offerings, and any shares of Common Stock acquired upon conversion or redemption thereof or any dividends payable or paid-in-kind, then Tech Opportunities LLC will be deemed an “Acquiring Person” under the Rights Agreement.
Miscellaneous
The Rights Agreement, the Amendment No. 1 to Shareholder Rights Agreement, the
Amendment No. 2 to Shareholder Rights Agreement, the Amendment No. 3 to Shareholder Rights Agreement, the Amendment No. 4 to Shareholder Rights Agreement, the Amendment No. 5 to Shareholder Rights Agreement and the Amendment No. 6 to Shareholder Rights Agreement are filed as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and 4.7 respectively, to this Amendment No. 6 to Form 8-A and are incorporated herein by reference. The above description of the material terms of the Amendment No. 6 as they relate to the Rights Agreement is qualified in its entirety by reference to such exhibits.
Item 2. Exhibits.
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Exhibit No. |
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Description |
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3.1 |
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Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock (incorporated by reference to Exhibit 3.1 from the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on June 24, 2009). |
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4.1 |
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Shareholder Rights Agreement, dated as of June 23, 2009, between Plug Power Inc. and American Stock Transfer & Trust Company LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on June 24, 2009). |
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4.2 |
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Amendment No. 1, effective as of May 6, 2011, to Shareholder Rights Agreement by and between Plug Power Inc. and American Stock Transfer & Trust Company LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on May 6, 2011). |
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4.3 |
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Amendment No. 2, effective as of March 16, 2012, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on March 19, 2012). |
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4.4 |
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Amendment No. 3, effective as of March 23, 2012, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on March 26, 2012). |
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4.5 |
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Amendment No. 4, effective as of February 12, 2013, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on February 13, 2013) |
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4.6 |
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Amendment No. 5, effective as of May 8, 2013, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on May 8, 2013) |
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4.7 |
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Amendment No. 6, effective as of December 19, 2016, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent |
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of 1934, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereto duly authorized.
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Plug Power Inc. | ||
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Date: December 21, 2016 |
By: |
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/s/ Gerard L. Conway, Jr. |
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Name: |
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Gerard L. Conway, Jr. |
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Title: |
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General Counsel and Corporate Secretary |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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3.1 |
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Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on June 24, 2009). |
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4.1 |
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Shareholder Rights Agreement, dated as of June 23, 2009, between Plug Power Inc. and American Stock Transfer & Trust Company LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 to the Company’s Registration Statement on Form 8-A filed with the Securities and Exchange Commission on June 24, 2009). |
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4.2 |
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Amendment No. 1, effective as of May 6, 2011, to Shareholder Rights Agreement by and between Plug Power Inc. and American Stock Transfer & Trust Company LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the SEC on May 6, 2011). |
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4.3 |
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Amendment No. 2, effective as of March 16, 2012, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on March 16, 2012). |
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4.4 |
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Amendment No. 3, effective as of March 23, 2012, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on March 26, 2012). |
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4.5 |
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Amendment No. 4, effective as of February 12, 2013, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on February 13, 2013). |
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4.6 |
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Amendment No. 5, effective as of May 8, 2013, to Shareholder Rights Agreement by and between Plug Power Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to Exhibit 4.1 from the Company’s Current Report on Form 8-K filed with the SEC on May 8, 2013). |
Exhibit 4.7
AMENDMENT NO. 6 TO
SHAREHOLDER RIGHTS AGREEMENT
This Amendment No. 6, effective as of December 19, 2016 (the “Amendment”), amends the Shareholder Rights Agreement, dated as of June 23, 2009 (as amended by Amendment No. 1 dated as of May 6, 2011, Amendment No. 2 dated as of March 16, 2012, Amendment No. 3 dated as of March 23, 2012, Amendment No. 4 dated as of February 11, 2013, and Amendment No. 5 dated as of May 8, 2013 (the “Rights Agreement”), between Plug Power Inc., a Delaware corporation (the “Company”), and Broadridge Corporate Issuer Solutions, Inc., a Pennsylvania corporation (the “Rights Agent”). Capitalized terms used herein but not defined herein shall have their defined meanings set forth in the Rights Agreement.
WHEREAS, the Company is conducting underwritten public offerings of (i) shares of common stock, par value $0.01 per share (the “Common Stock”), of the Company and warrants to purchase Common Stock of the Company (the “Common Offering Warrants” and the shares of Common Stock of the Company underlying such Warrants, the “Common Offering Warrant Shares”) with Oppenheimer & Co. Inc. as the managing underwriter (the “December 2016 Common Stock Offering”), and (ii) shares of Series D Convertible Preferred Stock, par value $0.01 per share (the “Series D Preferred Stock”), of the Company and warrants to purchase Common Stock of the Company (the “Preferred Offering Warrants” and the shares of Common Stock of the Company underlying such Warrants, the “Preferred Offering Warrant Shares”) with Oppenheimer & Co. Inc. as the managing underwriter (the “December 2016 Preferred Stock Offering” and, together with the December 2016 Common Stock Offering, the “December 2016 Securities Offerings”);
WHEREAS, in connection with the December 2016 Securities Offerings, Tech Opportunities LLC (the “Investor”) will purchase from the Company, and the Company will issue to the Investor (the “Securities Issuance”), (i) shares of Common Stock, (ii) Common Offering Warrants, (iii) shares of Series D Preferred Stock, and (iv) Preferred Offering Warrants;
WHEREAS, pursuant to and in accordance with the terms the Series D Preferred Stock, the Series D. Preferred Stock may be converted into shares of Common Stock (the “Series D Conversion Shares” and, collectively with the shares of Common Stock, Common Offering Warrants, Common Offering Warrant Shares, Series D Preferred Stock, Preferred Offering Warrants, and Preferred Offering Warrant Shares issued or issuable pursuant to the December 2016 Securities Offerings, and any other shares of Common Stock Beneficially Owned or deemed to be Beneficially Owned, now or in the future, by the Investor or any of its Affiliates or Associates as a result of the terms of the December 2016 Securities Offerings or any of the securities issued or issuable pursuant to the December 2016 Securities Offerings, the “Investor Securities”);
WHEREAS, the Board of Directors of the Company has determined that it is advisable and in the best interest of the Company to amend the Rights Agreement to provide that the Investor and its Affiliates and Associates may acquire the Investor Securities without becoming Acquiring Persons and without causing the occurrence of a Stock Acquisition Date, Distribution Date, Section 11(a)(ii) Event or Section 13 Event under the Rights Agreement;
WHEREAS, pursuant to Section 27 of the Rights Agreement and under the circumstances specified therein, the Company and the Rights Agent shall, if the Board of Directors of the Company so directs, supplement or amend any provision of the Rights Agreement without the approval of any holders of certificates representing shares of Common Stock of the Company;
WHEREAS, the Company now desires to amend the Rights Agreement as set forth in this Amendment and, pursuant to Section 27 of the Rights Agreement, the Board of Directors of the Company hereby directs that the Rights Agreement should be amended as set forth in this Amendment; and
WHEREAS, the Board of Directors of the Company has determined that this Amendment and the transactions contemplated hereby are advisable and in the best interests of the Company and the holders of Common Stock.
NOW, THEREFORE, the parties hereby agree as follows:
1. The first paragraph of the definition of “Acquiring Person” in Section 1(a) of the Rights Agreement is hereby amended and restated in its entirety to read as follows:
““Acquiring Person” shall mean any Person (as such term is hereinafter defined) who or which, together with all Affiliates (as such term is hereinafter defined) and Associates (as such term is hereinafter defined) of such Person, shall be the Beneficial Owner (as such term is hereinafter defined) of 15% or more of the shares of Common Stock of the Company then outstanding, but shall not include (i) the Company, (ii) any Subsidiary (as such term is hereinafter defined) of the Company, (iii) any employee benefit plan or compensation arrangement of the Company or any Subsidiary of the Company or (iv) any Person holding shares of Common Stock of the Company organized, appointed or established by the Company or any Subsidiary of the Company for or pursuant to the terms of any such employee benefit plan or compensation arrangement (the Persons described in clauses (i) through (iv) above are referred to herein as “Exempt Persons”); provided, however, that the term “Acquiring Person” shall not include:
(1) Air Liquide Investissements d’Avenir et de Demonstration and its Affiliates and Associates (collectively, “Air Liquide”), to the extent Air Liquide becomes the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding solely due to Air Liquide’s Beneficial Ownership of shares of Series C Redeemable Convertible Preferred Stock, par value $0.01 per share, of the Company (the “Series C Preferred Stock”), issued pursuant to the Securities Purchase Agreement, dated as of May 8, 2013, by and between the Company and Air Liquide
Investissements d’Avenir et de Demonstration (the “Securities Purchase Agreement”), and the Certificate of Designations to the Amended and Restated Certificate of Incorporation of the Company, as amended (the “Series C Preferred Stock Certificate of Designations”), and any shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned, now or in the future, by Air Liquide as a result of the terms of the Series C Preferred Stock as set forth in the Series C Preferred Stock Certificate of Designations, including, without limitation, shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned by Air Liquide as a result of accrued dividends or dividends paid-in-kind on the Series C Preferred Stock or any adjustments (including, without limitation, to the conversion price or conversion ratio) to the Series C Preferred Stock (the “Air Liquide Preferred Stock Investment Shares”); and
(2) Tech Opportunities LLC and its Affiliates and Associates (collectively, “Tech Opportunities”), to the extent Tech Opportunities becomes the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding solely due to Tech Opportunities’ Beneficial Ownership of (i) shares of Common Stock of the Company (the “December 2016 Common Stock Offering Shares”), (ii) warrants to purchase shares of Common Stock of the Company (the “December 2016 Warrants”), and (iii) shares of Series D Convertible Preferred Stock of the Company, par value $.01 per share (the “Series D Preferred Stock”), in each case issued or issuable to Tech Opportunities in connection with or as a result of its purchase of December 2016 Common Stock Offering Shares, December 2016 Warrants and/or Series D Preferred Stock in offerings made pursuant to (x) the Company’s Registration Statement on Form S-3 (file number 333-214737) declared effective by the Securities and Exchange Commission on December 9, 2016 (the “December 2016 Registration Statement”) and each of (1) the prospectus supplement thereto filed with the Securities and Exchange Commission on December 19, 2016 relating to the offering of shares of Common Stock of the Company and warrants (the “December 2016 Common Offering Warrants”) to purchase shares of Common Stock of the Company and (2) the prospectus supplement thereto filed with the Securities and Exchange Commission on December 19, 2016 relating to the offering of shares of Series D Preferred Stock of the Company and warrants (the “December 2016 Preferred Offering Warrants”) to purchase shares of Common Stock of the Company (such supplements, the “December 2016 Prospectus Supplements”), (y) the Certificate of Designations for the Series D Preferred Stock (the “Series D Certificate of Designations”) and (z) each of (1) the Warrant Agreement between the Company and Tech Opportunities relating to the December 2016 Common Offering Warrants (the “December 2016 Common Offering Warrant Agreement”) and (2) the Warrant Agreement between the Company and Tech Opportunities relating to the December 2016 Preferred Offering Warrants (the “December 2016 Preferred Offering Warrant Agreement” and, together with the December 2016 Common Offering Warrant Agreement, the December 2016 Registration Statement, the December 2016 Prospectus Supplements and the Series D Certificate of Designations and any other documents or instruments relating to any of
the transactions contemplated thereby, the “Securities Purchase Documents”), and any shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned, now or in the future, by Tech Opportunities as a result of the terms of any of the Securities Purchase Documents, including, without limitation, shares of Common Stock of the Company Beneficially Owned or deemed to be Beneficially Owned by Tech Opportunities as a result of (i) shares of Common Stock of the Company underlying or issued pursuant to the December 2016 Warrants, (ii) any dividend, redemption or other payments under the terms of the Series D Preferred Stock or Series D Certificate of Designations made in shares of Common Stock of the Company or in other securities convertible into or exchangeable for shares of Common Stock of the Company or otherwise based upon, determined in reference to or derived from the market price or value of the shares of Common Stock of the Company, and (iii) any adjustments to any of the terms of the Series D Preferred Stock or December 2016 Warrants, including, without limitation, to the conversion price, conversion ratio or redemption price of the Series D Preferred Stock or the exercise price of, or number of shares of Common Stock underlying, the December 2016 Warrants or in each case otherwise based upon, determined in reference to or derived from the market price or value of the shares of Common Stock of the Company (collectively, the “Tech Opportunities Investment Shares”); and
(3) any Grandfathered Person, any INTER RAO Grandfathered Person, any SSF Grandfathered Person or any February 2013 Offering Grandfathered Investor, unless (A) with respect to a Grandfathered Person, such Grandfathered Person becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the Grandfathered Percentage of such Grandfathered Person, (B) with respect to an INTER RAO Grandfathered Person, such INTER RAO Grandfathered Person becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the INTER RAO Grandfathered Percentage of such INTER RAO Grandfathered Person, (C) with respect to an SSF Grandfathered Person, such SSF Grandfathered Person becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the SSF Grandfathered Percentage of such SSF Grandfathered Person, and (D) with respect to a February 2013 Offering Grandfathered Investor, such February 2013 Offering Grandfathered Investor becomes the Beneficial Owner of a percentage of the shares of Common Stock of the Company then outstanding equal to or exceeding the February 2013 Offering Investor Grandfathered Percentage of such February 2013 Offering Grandfathered Investor.
For the avoidance of doubt, (x) if Air Liquide becomes or is the Beneficial Owner of 15% or more of the shares of Common Stock of the Company then outstanding (including the Air Liquide Preferred Stock Investment Shares) and at such time Air Liquide is or is deemed to be the Beneficial Owner of any shares of Common Stock of the Company other than the Air Liquide Preferred Stock Investment Shares, then Air Liquide shall be deemed an Acquiring Person hereunder, and (y) if Tech Opportunities becomes or is the Beneficial Owner of 15% or more of the
shares of Common Stock of the Company then outstanding (including the Tech Opportunities Investment Shares) and at such time Tech Opportunities is or is deemed to be the Beneficial Owner of any shares of Common Stock of the Company other than the Tech Opportunities Investment Shares, then Tech Opportunities shall be deemed an Acquiring Person hereunder.
2. Except as expressly set forth herein, this Amendment shall not by implication or otherwise alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Rights Agreement, all of which are ratified and affirmed in all respects and shall continue in full force and effect and shall be otherwise unaffected.
3. This Amendment shall be governed by and construed in accordance with the laws of the State of Delaware, United States of America, applicable to contracts made and to be performed entirely within such State, without regard to conflict-of-law principles.
4. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. A signature to this Amendment transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the day and year first above written.
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PLUG POWER, INC. | ||||
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Attest: |
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/s/ Gerald L. Conway, Jr. |
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By: |
/s/ Paul Middleton | |||
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Name: |
Gerald L. Conway, Jr. |
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Name: Paul Middleton | |||
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Title: |
General Counsel and Secretary |
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Title: Chief Financial Officer | |||
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BROADRIDGE CORPORATE ISSUER SOLUTIONS, INC, as Rights Agent | ||||
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Attest: |
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/s/ Gordon Stevenson |
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By: |
/s/ Mark Kopelman | |||
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Name: Gordon Stevenson |
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Name: |
Mark Kopelman | |||
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Title: Senior Director |
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Vice President | |||
[Signature Page to Amendment No.6 to Shareholder Rights Agreement]