EXHIBIT 10.11
PLUG POWER, LLC
LLC INTEREST PURCHASE AGREEMENT
Dated as of April 11, 1999
LLC INTEREST PURCHASE AGREEMENT
AGREEMENT, dated as of April 1, 1999, between PLUG POWER, LLC, a Delaware
limited liability company (the "Company"), and Antaeus Enterprises, Inc., a
Delaware corporation (the "Investor").
WHEREAS, the Company proposes to issue and sell to the Investor an
aggregate of 299,850 Shares of Class A Membership Interests (the "Purchased
Securities") for an aggregate purchase price of $2.0 million;
WHEREAS, the Investor desires to purchase the Purchased Securities;
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined in context or the context
otherwise requires, capitalized terms used in this Agreement are defined on
Schedule I hereto, which is incorporated herein by reference and made a part of
this Agreement. Such terms shall be applicable to both the singular and plural
forms of any of the terms therein defined.
2. Sale and Purchase. Upon the terms and subject to the conditions herein
contained, the Company agrees to sell to the Investor, and the Investor agrees
to purchase from the Company, on the Closing Date, the Purchased Securities. The
Investor shall pay to the Company $2.0 million for the Purchased Securities.
3. Closing.
(a) The Closing shall occur at the offices of Plug Power, 000 Xxxxxx-
Xxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, at the hour of 10:00 A.M., Eastern Standard
Time, on the Closing Date.
(b) At the Closing, the Company shall deliver to the Investor a
certificate evidencing the Purchased Securities, which certificate shall be
registered in the Investor's name, against delivery to the Company of payment by
wire transfer of immediately available funds to an account specified in writing
by the Company on or before the Closing Date in an amount equal to $2.0 million.
(c) At the Closing, the Investor shall execute the Limited Liability
Company Agreement as a Class A Member.
4. Restrictions on Transfer of Securities, Removal of Restrictions on
Transfer of Securities.
(a) The Investor understands and agrees that the Purchased Securities
have not been registered under the Securities Act, and that accordingly they
will not be fully transferable except as permitted under various exemptions
contained in or promulgated by the Commission under the Securities Act, or upon
satisfaction of the registration and prospectus delivery requirements of the
Securities Act. The Investor acknowledges that it must bear the economic risk of
its investment in the Purchased Securities for an indefinite period of time
since they have not been registered under the Securities Act and therefore
cannot be sold unless they are subsequently registered or an exemption from
registration is available.
(b) The Investor hereby agrees with the Company as follows:
(i) The certificates evidencing the Purchased Securities, and
each certificate issued in transfer thereof, will bear a legend to the following
effect:
"The securities evidenced by this certificate have not been
registered under the Securities Act of 19331 and have been taken for
investment purposes only and not with a view to the distribution
thereof, and such securities may not be sold or transferred unless
there is an effective registration statement under such Act covering
such securities, or such sale or transfer is exempt from the
registration and prospectus delivery requirements of such Act, and if
requested by the issuer corporation, the Investor delivers to it a
satisfactory opinion of counsel to such effect."
(ii) The certificates representing the Purchased Securities, and
each certificate issued in transfer thereof, will also bear any legend required
under any applicable state securities law.
(iii) Absent an effective registration statement under the
Securities Act covering the disposition of such securities, the Investor shall
not sell, transfer, assign, pledge, hypothecate or otherwise dispose of any of
the Purchased Securities unless such sale, transfer, assignment, pledge,
hypothecation or other disposition will be exempt from the registration and the
prospectus delivery requirements of the Securities Act and the registration or
qualification requirements of any applicable state securities laws, and, if
requested by the issuer corporation, the Investor delivers to it a satisfactory
opinion of counsel to such effect. Notwithstanding the foregoing, no such
registration or opinion shall be required with respect to a transfer not
involving a change in beneficial ownership.
(iv) The Investor consents to the Company's making a notation on
its records or giving instructions to any transfer agent of the Purchased
Securities in order to implement the restrictions on transfer of the Purchased
Securities set forth in this subsection (b).
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5. Representations and Warranties by the Company. In order to induce the
Investor to enter into this Agreement and to purchase the Purchased Securities,
the Company hereby represents and warrants to the Investor as follows:
5.1 Organization, Standing, etc. The Company is a limited liability
company duly formed, validly existing and in good standing under the laws of the
State of Delaware and has all requisite power and authority to carry on its
business, to own and hold its properties and assets, to enter into this
Agreement, to issue the Purchased Securities and to carry out the provisions
hereof. The copies of the Certificate of Formation and Limited Liability
Company Agreement of the Company, which have been delivered to the Investor
prior to the execution This Agreement, are true and complete and have not been
amended or repealed.
5.2 Qualification. The Company is duly qualified or licensed as a
foreign limited liability company in good standing in each jurisdiction wherein
the nature of its activities or its properties owned or leased makes such
qualification, licensing or domestication necessary.
5.3 Capitalization. The authorized capitalization of the Company
consists of 40,000,000 Shares of Class A Membership Interests and 3,000,000
Shares of Class B Membership Interests. As of the Closing Date, and prior to the
issuance of the Investor Interest, the Company has 21,500,000 Shares of Class A
Membership Interests and no Shares of Class B Membership Interests outstanding.
All of the issued and outstanding Shares of the Company have been, and all of
the Shares to be sold to the Investor will be, upon payment therefor, duly
authorized and validly issued and fully paid and nonassessable. As of the
Closing Date, the Company has warrants and options outstanding, which upon
exercise and payment of an aggregate of $90,500,000 to the Company, will entitle
the holders of such warrants and options to an aggregate of 11,650,000 Shares of
Class A Membership Interests and, as of February 12, 1999, 2,033,900 Shares of
Class B Membership Interests. Other than such warrants and options, there are no
convertible securities with respect to the Company or agreements, arrangements
or understandings to issue convertible securities with respect to the Company.
5.4 Company Authority. The Company has the power and authority to
execute and deliver this Agreement. The execution and delivery of this Agreement
has been duly authorized by all necessary Company action.
5.5 Binding Obligations. This Agreement constitutes the legal, valid
and binding obligation of the Company and is enforceable against the Company in
accordance with its terms, except as such enforcement is limited by bankruptcy,
insolvency and other similar laws affecting the enforcement of creditors' rights
generally.
5.6 Brokers or Finders. No Person has or will have, as a result of
the transactions contemplated herein and any action or omission of the Company,
any right or
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valid claim against the Company or any Investor for any commission, fee or other
compensation as a finder or broker, or in any similar capacity.
5.7 Legal Proceedings. There are no actions, proceedings or claims
pending or, to the knowledge of the Company, threatened against, relating to or
affecting the Company or any of its assets or property, which, if determined
adversely to the Company, would have a material adverse effect on the results of
operations, financial condition or business of the Company.
5.8 Class A Membership Interests. The holders of Shares of Class A
Membership Interests and the number of Shares held by each such holder are as
set forth on Schedule 5.8.
5.9 Warrants and Options. The holders of options and warrants to
purchase Shares of Class A Membership Interests, the number of Shares underlying
such options and warrants, the exercise price for such warrants and options are
as set forth on Schedule 5.9.
6. Representations and Warranties by the Investor. In order to induce the
Company to enter into this Agreement and to sell the Purchased Securities, the
Investor hereby represents and warrants to the Company as follows:
6.1 Binding Obligation. The Investor has the power and authority to
execute and deliver this Agreement. The execution and delivery of this Agreement
has been duly authorized by all necessary corporate action of the Investor. This
Agreement constitutes a legal, valid and binding obligation of the Investor
enforceable against the Investor in accordance with its terms, except as such
enforcement is limited by bankruptcy, insolvency, and other similar laws
affecting the enforcement of creditors' rights generally.
6.2 Purchase For Investment. The Investor hereby represents and
warrants to the Company that it is acquiring the Purchased Securities for
investment purposes only, for its own account, and not as nominee or agent for
any other Person, and not with the view to, or for resale in connection with,
any distribution thereof within the meaning of the Securities Act. The Investor
represents and warrants that it is an "accredited investor," as such term is
defined in Rule 501 of Regulation D as promulgated by the Securities and
Exchange Commission under the Securities Act, or is not a resident of, or
domiciled in, the United States or any territory or possession thereof, and the
Investor shall submit to the Company such further assurances of such status as
may be reasonably requested by the Company.
7. Miscellaneous.
7.1 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
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7.2 Notices. All notices, receipts, consents, instructions, approvals
and other communications required or permitted hereunder shall be validly given,
if in writing and delivered personally, by confirmed telecopy or sent by
registered or certified mail or nationally recognized air courier service or
overnight courier service, postage prepaid:
(a) If to the Investor, at the following address or at such other
address as the Investor may specify by written notice to the Company:
Antaeus Enterprises, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx Treasurer
With a copy to:
(b) If to the Company, at the following address or at such other
address as the Company may specify by written notice to Investor:
Plug Power, LLC
000 Xxxxxx-Xxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxx-Xxxxx Xxxxxxx, Esq.
With a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx, Esq.
and each such notice, request, consent, instruction, approval and other
communication shall for all purposes of the Agreement be treated as being
effective or having been given when delivered, if delivered personally, or, if
sent by mail, at the earlier of its actual receipt or three (3) days after the
same has been deposited in a regularly maintained receptacle for the deposit of
United States mail, addressed and postage prepaid as aforesaid, or if sent by
telecopier, when confirmed, or if sent by air courier, two (2) days after the
same has been deposited with such air courier, or if sent by overnight courier,
one (1) day after the same has been deposited with such overnight courier.
7.3 Survival of Representations and Warranties. etc. All representations
and warranties made in this Agreement shall survive the execution and delivery
of this Agreement, and the sale and purchase of the Purchased Securities and
payment therefor, for a period of one year.
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7.4 Severability. Should any one or more of the provisions of this
Agreement or of any agreement entered into pursuant to this Agreement be
determined to be illegal or unenforceable, all other provisions of this
Agreement and of each other agreement entered into pursuant to this Agreement
shall be given effect separately from the provision or provisions determined to
be illegal or unenforceable and shall not be affected thereby.
7.5 Headings. The headings of the Sections and paragraphs of this
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
7.6 Choice of Law. It is the intention of the parties that the internal
substantive laws, and not the laws of conflicts, of the State of New York should
govern the enforceability and validity of this Agreement, the construction of
its terms and the interpretation of the rights and duties of the parties.
7.7 Fees and Expenses. The fees and expenses arising in connection with
the negotiation and execution of this Agreement and the Warrant and consummation
of the transactions contemplated hereby and thereby, shall be paid by the party
incurring such fees.
7.8 Confidentiality. The Investor will hold in strict confidence from any
Person, unless compelled to disclose by Judicial or administrative process or by
other requirements of any law all documents and information concerning the
Company furnished to it by or on behalf of the Company in connection with or
pursuant to this Agreement or the transactions contemplated hereby and thereby,
except to the extent that such documents or information can be shown to have
been in the public domain through no fault of the Investor.
7.9 No Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned (by operation of law or otherwise) by any
party hereto without the prior written consent of the other party hereto and any
attempt to do so will be void.
7.10 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
PLUG POWER, LLC
By: /s/ Xxxx Xxxxxxxxx
------------------
Name: Xxxx Xxxxxxxxx
Title: President & CEO
ANTAEUS ENTERPRISES, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
-------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
Title: President
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SCHEDULE I TO THE LLC INTEREST PURCHASE AGREEMENT
This Schedule I to that certain LLC Interest Purchase Agreement (the
"Agreement"), dated as of April _, 1999, between Plug Power, LLC and the
Investor set forth therein, defines certain of the terms used therein and is
made a part thereof.
"Class A Membership Interests" means the Class A Membership Interests as
defined in the Company's Limited Liability Company Agreement.
"Class B Membership Interests" means the Class B Membership Interests as
defined in the Company's Limited Liability Company Agreement.
"Closing " means the closing of the sale and purchase by the Investor of
the Purchased Securities on the Closing Date.
"Closing Date" means April 1, 1999, or such different time or day as the
Investor and the Company shall agree.
"Commission" means the United States Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities Act.
"Limited Liability Company Agreement" means the Limited Liability Company
Agreement of the Company, dated as of June 27, 1997, as amended by the First,
Second, and Third Amendments thereto, respectively dated April 24, 1998, June
10, 1999, November 30, 199S and the Minutes of the Special Meeting dated January
29, 1999.
"Person" shall include any natural person, corporation, trust, association,
company, partnership, joint venture and other entity and any Governmental
Authority.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means units of Class A Membership Interests or Class B Membership
Interests.
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SCHEDULE 5.8 TO THE LLC INTEREST PURCHASE AGREEMENT
Class A Membership Interest
Holder Number
EDC 10,000,000
MTI 7,750,000
GE 2,250,000
Cudahy 1,440,000
Lindsay 60,000
Total outstanding: 21,500,000
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SCHEDULE 5.9 TO THE LLC INTEREST PURCHASE AGREEMENT
Options for Class A Membership Interest
$ to Company
Holder Number Exercise Price Upon Exercise
MT1 2,250,000 $ 1.00 $ 2,250,000
MTI 33,000,000 $ 7.50 $ 22,500,000
EDC 33,000,000 $ 7.50 $ 22,500,000
GE 3,000,000 $ 12.50 $ 37,500,000
Total/Avg: 11,250,000 $ 7.53 $ 84,750,000
Warrants for Class A Membership Interest
Cudahy 400,000 $ 8.50 $ 3,400,000
Options for Class B Membership Interest
Employees 2,033,900 $ 1.00-$5.00 $ 4,350,000
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