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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
December 22, 2004 |
Date of Report (Date of earliest event reported) |
MECHANICAL TECHNOLOGY INCORPORATED |
(Exact name of registrant as specified in its charter) |
NEW YORK |
0-6890 |
14-1462255 |
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
431 NEW KARNER ROAD, ALBANY, NEW YORK 12205 (Address of principal executive offices) (Zip Code) |
Registrant's telephone number, including area code: (518) 533-2200 |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
1
Item 3.02 Unregistered Sales of Equity Securities
On December 22, 2004, Mechanical Technology Incorporated ("MTI" or "Company") sold 1,261,829 shares of the Company's common stock at a purchase price of $6.34 per share to Fletcher International, Ltd. ("Fletcher"). Proceeds from the sale were $8 million before fees and expenses.
The Certificate of Additional Investment Rights held by Fletcher International, Ltd. was revised to reflect this transaction, and is included as Exhibit 4.1 to this Report.
The sale of securities was a private placement transaction, exempt from registration under the Securities Act of 1933 pursuant to section 4(2) thereof.
Item 9.01. Financial Statements and Exhibits.
Exhibit No. |
Description |
4.1 |
Certificate of Additional Investment Rights issued to Fletcher International, Ltd. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
MECHANICAL TECHNOLOGY INCORPORATED |
|
Date: December 27, 2004 |
By: /S/ CYNTHIA A. SCHEUER Name: Cynthia A. Scheuer |
Title: Vice President and Chief Financial Officer |
2
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED UNLESS (1) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT COVERING SUCH SECURITIES, (2) THE SALE IS MADE IN ACCORDANCE WITH RULE 144(k) UNDER THE SECURITIES ACT OR (3) AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER IS DELIVERED STATING THAT SUCH REGISTRATION IS NOT REQUIRED.
Certificate No. 3 Up to $20,000,000 of additional investment in
Common Stock and up to 2,700,000 shares of
Plug Power Stock, subject to adjustment
Certificate of Additional Investment Rights
Mechanical Technology Incorporated
Mechanical Technology Incorporated (the "Issuer"), a New York corporation, for value received, hereby certifies that Fletcher International, Ltd., a Bermuda company ("Fletcher"), or its registered permitted assigns, is the registered holder (the "Holder") of rights to purchase from the Issuer (i) up to $20,000,000 (the "Additional Investment Amount") of duly authorized, validly issued, fully paid and nonassessable shares of common stock, par value $1.00 per share (the "Common Stock"), of the Issuer (the "MTI Investment Right") at a price per share equal to the MTI Additional Investment Price (as defined herein), and (ii) up to two million, seven hundred thousand (2,700,000) duly authorized, validly issued, fully paid and nonassessable shares of common stock, par value $0.01 per share, of Plug Power, Inc. (the "Plug Power Stock") owned by the Company and held in escrow pursuant to the Escrow Agreement (as adjusted, the "Plug Power Inv estment Right" and, together with the MTI Investment Right, the "Additional Investment Rights") at a price per share equal to the Plug Power Investment Price (as defined herein), all subject to the terms, conditions and adjustments set forth below in this Certificate of Additional Investment Rights (this "Certificate") and the Agreement between the Issuer and Fletcher dated as of January 26, 2004 and amended by Amendment No. 1 to the Main Agreement dated as of May 4, 2004 (as amended, the "Main Agreement").The Additional Investment Rights represented hereby have been issued pursuant to the Main Agreement, and are subject to the terms and conditions thereof. Unless otherwise defined herein, capitalized terms used herein shall have the meanings set forth in the Main Agreement. A copy of the Main Agreement may be obtained by the registered holder hereof upon written request to the Issuer.
The "Additional Investment Term" shall mean:
then the Issuer may request by written notice to the Holder (a "Call Notice") that the Holder exercise the MTI Investment Right in an amount equal to $20,000,000 minus any Designated Additional Amounts set forth on any Additional Investment Notice previously delivered to the Issuer pursuant to a previous exercise in part of the MTI Investment Right. The Call Notice must be delivered to the Holder no later than the tenth (10th) Business Day after and excluding the Call Commencement Date, after which the Issuer may not deliver a Call Notice to the Holder until the next date on which the provisions of this Section 1.2(b) are satisfied.
then, the Issuer may deliver a Call Notice no later than the tenth (10th) Business Day after the Trailing Date. For purposes of clarification, if no Trailing Date occurs, or if the Call Notice is not delivered on or before the tenth (10th) Business Day after and excluding the Trailing Date, the Issuer may not deliver a Call Notice to the Holder until the next date on which the provisions of Section 1.2(b) or this Section 1.2(c) are satisfied.
The MTI Investment Right and the Plug Power Investment Right may be exercised by the Holder, in whole or in part, from time to time, on any Business Day during the relevant Additional Investment Term, by facsimile, mail or overnight courier delivery of a notice in substantially the form attached to this Certificate as Exhibit 1 duly executed by such Holder (an "Additional Investment Notice") and any such exercise shall be irrevocable; provided, that, if the consummation of the transactions contemplated by such exercise does not occur on the Additional Investment Closing Date for any reason other than the Holder's breach of the Certificate or the Main Agreement or the failure of any condition precedent of the Company's obligations with respect thereto, then, in addition to all other remedies available to the Holder at law or in equity, the Holder may withdraw such Additional Investment Notice. The Issuer shall acknowledge receipt of such Additional Investment Notice no later th an the first Business Day after and excluding the date of receipt thereof by countersigning the Additional Investment Notice and delivering a copy of such countersignature to the Holder by facsimile or overnight courier. The closing of each exercise of the MTI Investment Right shall take place (A) if the Initial Registration Statement has been declared effective at the time of delivery of the relevant Additional Investment Notice, (x) on the third (3rd) Business Day after and including the date of the Additional Investment Notice relating thereto or (y) any other date upon which the exercising Holder and the Issuer mutually agree or (B) if the Initial Registration Statement has not been declared effective at the time of delivery of the relevant Additional Investment Notice and on the Closing Date, (x) on the fifth (5th) Business Day after and excluding the effective date of the Initial Registration Statement relating to such exercise or (y) any other date upon which the exer cising Holder elects. The closing of the exercise of the Plug Power Investment Right shall take place on the third (3rd) Business Day after and including the date of the Additional Investment Notice relating thereto or any other date upon which the exercising Holder elects (such date, in each case, an "Additional Investment Closing Date"). The Holder shall exercise the Additional Investment Rights in Designated Additional Investments of at least five hundred thousand dollars ($500,000), unless the remaining Additional Investment Amount under the MTI Investment Right or the Plug Power Investment Right, as the case may be, is less than five hundred thousand dollars ($500,000).
On each Additional Investment Closing Date, the Issuer at its expense (including the payment by it of any applicable issue taxes) shall cause to be issued (including, with respect to the Plug Power Investment Right, by executing Joint Instructions instructing the escrow agent under the Escrow Agreement to issue) in the name of and delivered to the Holder or as such Holder may direct,
provided, however, that, if the Initial Registration Statement or the Consent Registration Statement, as the case may be, is not effective and the Holder directs the Issuer to deliver a certificate or certificates for shares of Common Stock or a Certificate in a name other than that of the Holder, it shall deliver to the Issuer, if requested in writing by the Issuer, on the Additional Investment Closing Date an opinion of counsel reasonably satisfactory to the Issuer to the effect that the issuance of such certificate(s) or Certificate in such other name may be made pursuant to an available exemption from the registration requirements of the Securities Act and all applicable state securities or blue sky laws.
For so long as the Additional Investment Amount represented hereby has not been exercised in full, the Issuer shall, at all times prior to the end of the Additional Investment Term, reserve and keep available, free from any pre-emptive rights that would reduce the number of Additional Shares issuable to the Holder under this Certificate or the Main Agreement, out of its authorized but unissued capital stock, the number of shares of Common Stock available for exercise hereunder. In the event the number of Common Shares plus all other shares of Common Stock outstanding and otherwise reserved for issuance exceeds the total authorized number of shares of Common Stock, the Issuer shall promptly take all actions necessary to increase the authorized number of shares of Common Stock, including causing its board of directors to call a special meeting of stockholders and recommend such increase.
In each case of any adjustment or readjustment of the Additional Investment Term, the MTI Additional Investment Price or any other adjustment or readjustment pursuant to the terms of the Main Agreement or this Certificate, or upon the written request at any time of any Holder, the Issuer, at its expense, will promptly compute such adjustment or readjustment (the "Issuer Calculation") in accordance with the terms of this Certificate and deliver to the Holder a certificate of the chief financial officer of the Issuer verifying the Issuer Calculation and showing in reasonable detail the method of calculation thereof and the facts upon which such adjustment or readjustment is based, including a statement of (a) the Additional Investment Amount, (b) the Additional Investment Term and (c) the MTI Additional Investment Price in effect immediately prior to such adjustment or readjustment (as adjusted and readjusted, as applicable). The Issuer will keep copies of all such certificates and any reports or ot her data used in the preparation of the Issuer Calculation at its principal office and will cause the same to be available for inspection at such office during normal business hours by any Holder or any prospective purchaser of the Additional Investment Rights designated by the Holder thereof. In the event that the Holder disputes the Issuer Calculation, the Holder shall deliver its computation of such adjustment or readjustment (the "Holder Calculation") to the Issuer and, if the parties are unable to agree on the adjustment or readjustment in question within ten (10) Business Days of the Holder's delivery of the Holder Calculation, then Holder may request in writing that the Issuer shall cause independent certified accountants of recognized national standing (which may be the regular auditors or accountants of the Issuer) selected by the Issuer to prepare a computation of such adjustment or readjustment (the "Final Calculation"). The Holder shall bear the costs and expenses of such accountan ts if the difference between the Holder Calculation and the Final Calculation is greater than the difference between the Issuer Calculation and the Final Calculation, otherwise the Issuer shall bear such costs and expenses.
By accepting delivery of this Certificate, the Holder covenants and agrees with the Issuer not to exercise the Additional Investment Rights or transfer the Additional Investment Rights or the Common Shares represented hereby except in compliance with the terms of the Main Agreement and this Certificate. By accepting delivery of this Certificate, the Holder further covenants and agrees with the Issuer that the Additional Investment Rights may not be sold or assigned, in whole or in part, unless such sale or assignment complies with applicable federal and state securities laws and the terms of the Main Agreement and this Certificate. If a portion of the Additional Investment Rights evidenced hereby is transferred in compliance with the terms of the Main Agreement and this Certificate, all rights of the Holder hereunder may be exercised by the transferee provided that any Holder of the Additional Investment Rights may deliver an Additional Investment Notice only with respect to such Holder's portion of the Additional Investment Rights.
The Issuer will pay all documentary stamp taxes (if any) attributable to the issuance of Common Stock and the transfer of the Plug Power Stock upon the exercise of the Additional Investment Rights by the Holder; provided, however, that the Issuer shall not be required to pay any tax or taxes which may be payable in respect of any transfer involved in the registration of the Additional Investment Rights or any certificates for Common Shares or Plug Power Stock in a name other than that of the Holder of the Additional Investment Rights surrendered upon the exercise of Additional Investment Rights, and the Issuer shall not be required to issue or deliver a certificate evidencing Additional Investment Rights or certificates for Common Shares or Plug Power Stock unless or until the person or persons requesting the issuance thereof shall have paid to the Issuer the amount of such tax or shall have established to the reasonable satisfaction of the Issuer that such tax has been paid.
and provided that the Holder may only purchase the number of shares of Plug Power Stock held in escrow pursuant to the Escrow Agreement on the date that an Additional Investment Notice is delivered with respect to the exercise of the Plug Power Investment Right;
For the avoidance of doubt, the Acquisition Consideration to which the Holder may be entitled pursuant to this Section 6(a) shall be in addition to any Acquisition Consideration to which the Holder is entitled for (x) shares of Common Stock owned by the Holder and (y) any additional shares, if applicable, which the Holder may be entitled to receive under Section 9 of the Main Agreement.
If a Restatement (as defined in the Main Agreement) occurs within one year after the Holder has exercised any portion of the MTI Investment Right, the Issuer shall:
In case this Certificate shall be mutilated, lost, stolen or destroyed, the Issuer may in its discretion issue in exchange and substitution for and upon cancellation of the mutilated Certificate, or in lieu of and substitution for the Certificate lost, stolen or destroyed, a new Certificate of like tenor, but only upon receipt of evidence reasonably satisfactory to the Issuer of such loss, theft or destruction of such Certificate and indemnity, if requested, reasonably satisfactory to the Issuer. Applicants for a substitute Certificate shall also comply with such other reasonable regulations and pay such other reasonable charges as the Issuer may prescribe.
The Issuer (and any successor) shall serve as agent for the Additional Investment Rights under this Certificate and shall at all times maintain a register of the holders of the Additional Investment Rights.
All communications hereunder shall be in writing and delivered as set forth in Section 19 of the Main Agreement.
This Certificate shall not be valid unless signed by the Issuer.
[Remainder of Page Left Blank Intentionally]
IN WITNESS WHEREOF, the Issuer has caused this Certificate of Additional Investment Rights to be signed by its duly authorized officer.
Dated: December 22, 2004
MECHANICAL TECHNOLOGY INCORPORATED
By: s/Cynthia A. Scheuer
Name: Cynthia A. Scheuer
Title: Vice-President and Chief Financial
Officer
Exhibit 1
[FORM OF ADDITIONAL INVESTMENT NOTICE]
(To Be Executed Upon Exercise Of Additional Investment Rights)
[DATE]
Mechanical Technology Incorporated
431 New Karner Road
Albany, New York 12205
Attention: Chief Financial Officer
Re: Exercise of Additional Investment Rights
Ladies and Gentlemen:
The undersigned is the registered holder of a certificate (the "Certificate") evidencing the above-referenced Additional Investment Rights (the "Additional Investment Rights") issued by Mechanical Technology Incorporated (the "Issuer") and hereby elects to exercise the Additional Investment Rights to purchase ______ shares of [Common Stock] [Plug Power Stock] (as defined in the Certificate) [exercise of Plug Power Investment Right or cash exercise of MTI Investment Right: and shall deliver on the Additional Investment Closing Date (as defined in the Certificate) via wire transfer of immediately available United States funds] $____________ (the "Designated Additional Investment") in exchange for such shares of [Common Stock][Plug Power Stock], all in accordance with the terms of such Certificate and the Main Agreement (as defined in the Certificate). [exercise of Plug Power Investment Right: The Plug Power Exercise Value after this exercise shall be $________.]< /P>
In accordance with the terms of the attached Certificate, the undersigned requests that certificates for such shares be registered in the name of and delivered to the undersigned at the following address:
[TO BE ADDED]
The undersigned will deliver the original Certificate no later than the second (2nd) Business Day after and excluding the date of this notice.
[If the Designated Additional Investment specified above is less than the total Additional Investment Amount remaining under the Certificate, insert the following -- The undersigned requests that a new Certificate substantially identical to the attached Certificate be issued to the undersigned evidencing Additional Investment Rights equal to the Additional Investment Amount called for on the face of the current Certificate minus an amount equal to the Designated Additional Investment.]
FLETCHER INTERNATIONAL, LTD., by its duly authorized investment advisor, FLETCHER ASSET MANAGEMENT, INC.
By:____________________________________ Name:
Title:
By:____________________________________ Name:
Title:
Receipt acknowledge by the Undersigned,
pursuant to Section 1.3 of the Certificate
on ____________, 200__
MECHANICAL TECHNOLOGY INCORPORATED
By: ____________________________
Name:
Title:
Exhibit 2
[FORM OF ADDITIONAL INVESTMENT DELIVERY NOTICE]
[DATE]
Fletcher International, Ltd.
c/o Fletcher Asset Management, Inc.
452 Fifth Avenue
HSBC Tower, 29th Floor
New York, New York 10018
Attn: Peter Zayfert
Telephone: (212) 284-4800
Facsimile: (212) 284-4801
Ladies and Gentlemen:
Reference is made to the Agreement (the "Main Agreement") dated as of January 26, 2004 by and between Mechanical Technology Incorporated (the "Issuer") and Fletcher International, Ltd. ("Fletcher"), as amended by Amendment No. 1 to the Main Agreement dated as of May 4, 2004. Capitalized terms not otherwise defined herein shall have the meanings ascribed thereto in the Main Agreement.
This notice confirms that Additional Investment Rights have been exercised by Fletcher with respect to an Designated Additional Investment (as designated in the Additional Investment Notice) of $__________, requiring delivery by the Issuer to Fletcher of ________ shares of [Common][Plug Power] Stock. [Attached are copies of the front and back of the ____ original stock certificates, each representing ______ shares of Common Stock, together with a copy of the overnight courier air bill which will be used to ship such stock certificates.][We have executed Joint Instructions instructing the escrow agent under the Escrow Agreement to transfer ________ shares of Plug Power Stock to you upon receipt of $_______.] [If the Additional Investment Rights are exercised in part: Also attached is a reissued Certificate, as provided in Section 1.5(b) of the Certificate.] We will send the original stock certificates by overnight courier to the following address:
[Insert address specified in the Additional Investment Notice]
MECHANICAL TECHNOLOGY INCORPORATED
By: ____________________________
Name:
Title:
Exhibit 3
[FORM OF HOLDER CIC NOTICE]
(To Be Executed Upon Exercise Of Additional Investment Rights
in the event of a Change in Control)
[DATE]
Mechanical Technology Incorporated
431 New Karner Road
Albany, New York 12205
Attention: Chief Financial Officer
Re: Exercise of MTI Investment Right
Ladies and Gentlemen:
The undersigned is the registered holder of a certificate (the "Certificate") evidencing the MTI Investment Right (as defined in the Certificate) issued by Mechanical Technology Incorporated (the "Issuer") and hereby elects to exercise, subject to our ability to withdraw this notice at any time prior to the consummation of the Change in Control [and, at our election, contingent upon the consummation of the Change in Control (as defined in the Main Agreement (as defined in the Certificate)) ], the MTI Investment Right to purchase _______ shares of Common Stock (as defined in the Certificate) and shall deliver via wire transfer of immediately available United States funds $____________ (the "Designated Additional Investment") in exchange for [closing prior to the CIC: such shares of Common Stock] [closing simultaneous with CIC: the Acquisition Consideration to which we are entitled under Section 6 of the Certificate] in accordance with and subject to, the terms of the Ce rtificate and the Main Agreement.
The closing of this exercise of the MTI Investment Right shall take place (subject to the our ability to withdraw this notice at any time prior to the consummation of the Change in Control), at our election, either (A) on the third (3) Business Day after and excluding the date that the Holder delivers a subsequent written notice that specifies the Additional Investment Closing Date with respect thereto, but in any event not later than simultaneously with the consummation of the Change in Control, or (B) if we do not specify a date in such written notice, or if we do not deliver such written notice earlier than the date of the consummation of the Change in Control, simultaneously with the consummation of the Change in Control.
FLETCHER INTERNATIONAL, LTD., by its duly authorized investment advisor, FLETCHER ASSET MANAGEMENT, INC.
By:____________________________________
Name:
Title:
By:____________________________________
Name:
Title:
Receipt acknowledge by the Undersigned,
pursuant to Section 6 of the Certificate
on ____________, 200__
MECHANICAL TECHNOLOGY INCORPORATED
By: ____________________________
Name:
Title:
Table of Contents
Page
1. Additional Investment. *
2. Reservation of Shares. *
3. Accountants' Report as to Adjustments. *
4. Transfer and Assignment. *
5. Taxes. *
6. Business Combinations. *
7. Restatements. *
8. Lost or Stolen Certificate. *
9. Additional Investment Agent. *
10. Notice. *
11. Miscellaneous. *
Index of Defined Terms
Page