EXHIBIT 4.108
STOCK PLEDGE AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, dated as of March 29, 2000 (herein as
amended or otherwise modified, "this Agreement"), by MECHANICAL TECHNOLOGY
INCORPORATED, a New York corporation (herein, together with its successors and
assigns, the "Pledgor" or the "Borrower"), with KEYBANK NATIONAL ASSOCIATION, a
national banking association (herein, together with its successors and assigns,
the "Lender"):
PRELIMINARY STATEMENTS:
(1) The Pledgor and the Lender are parties to the Stock Pledge Agreement
dated as of November 1, 1999, as amended and as in effect immediately prior to
the effectiveness of this Agreement (the "Existing Pledge Agreement");
(2) The Pledgor and the Lender wish to amend and restate the Existing Pledge
Agreement pursuant to this Agreement in accordance with the terms and subject to
the conditions set forth herein;
(3) The Pledgor and the Lender have elected to amend and restate the
Existing Pledge Agreement pursuant to this Agreement rather than amend the
Existing Pledge Agreement or enter into a new security agreement for their
convenience and intend that all indebtedness, obligations and items created
under the Existing Pledge Agreement be continued hereunder and remain in full
force and effect and not be discharged, paid, satisfied or canceled except
otherwise provided herein;
(4) The Lender has entered into an Amended and Restated Credit Agreement,
dated as of the date hereof (said Agreement, as it may hereafter be amended or
otherwise modified from time to time, being the "Credit Agreement", the terms
defined therein and not otherwise defined herein being used herein as therein
defined), with the Borrower.
(5) The Pledgor is the owner of shares of common stock of Plug Power Inc., a
Delaware corporation (herein, together with its successors and assigns, the
"Company"), described in Schedule I hereto (the "Pledged Shares").
(6) It is a condition precedent to the making of Loans by the Lender under
the Credit Agreement that the Pledgor shall have made the pledge contemplated by
this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce the
Lender to make Loans under the Credit Agreement, the Pledgor hereby agrees as
follows:
1. The Pledgor hereby pledges to the Lender, and grants to the Lender a security
interest in, the following (the "Pledged Collateral"):
(a) the certificates representing the Pledged Shares, and all dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the Pledged
Shares;
(b) all additional shares of common stock of the Company pledged to the Lender
by the Pledgor to the extent required under section 5(b), and the certificates
representing such additional shares, and all dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such shares; and
(c) all proceeds of any and all of the foregoing (including, without limitation,
proceeds that constitute property of the types described above).
2. Security for Secured Obligations. This Agreement secures the payment of
(i) all obligations of the Borrower now or hereafter existing under the Credit
Agreement and the Notes, whether for principal, interest, fees, expenses or
otherwise, (ii) all obligations of the Pledgor now or hereafter existing under
this Agreement, and (iii) all obligations of the Borrower now or hereafter
existing in favor of the Lender or any of its Affiliates which the Lender may
from time to time designate in writing to the Pledgor as being entitled to the
benefits of the security hereof (all such obligations of the Borrower referred
to in this section 2 being the "Secured Obligations"). Without limiting the
generality of the foregoing, this Agreement secures the payment of all amounts
which constitute part of the Secured Obligations and would be owed by the
Borrower but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
the Borrower.
3. Delivery of Pledged Collateral; Removal of Legends; Use of Securities
Account.
(a) All certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by or on behalf of the Lender pursuant
hereto and shall be in suitable form for transfer by delivery, or shall be
accompanied by duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Lender. The Lender shall have the
right, in its discretion, at any time during the continuance of an Event of
Default and without notice to the Pledgor, to transfer to or to register in the
name of the Lender or any of its nominees any or all of the Pledged Collateral,
subject only to the revocable rights specified in section 6(a). In addition, the
Lender shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
(b) If any Pledged Collateral is subject to any contractual restriction on
transfer arising under any agreement to which the Pledgor is a party with the
issuer, other shareholders and/or any underwriters, and any certificate or
certificates for such Pledged Collateral contain a legend which makes reference
to such restrictions, the Pledgor will, from time to time and as promptly as
circumstances permit, take all such actions as are within its power to request
and obtain the removal of such legend from certificates for the maximum number
of shares as to which it is entitled to have such legend removed.
(c) If after the date hereof any or all of the Pledged Collateral may be
held in book entry form and the Pledgor desires that such Pledged Collateral be
held in such form in an account which the Pledgor has with a broker which is a
member firm of the National Association of Securities Dealers, then the Lender
will cooperate with the Pledgor in transferring such Pledged Collateral to such
account, provided that there is in place an "account control agreement"
reasonably satisfactory to the Lender which is sufficient to perfect its
security interest in the Pledged Collateral held in such account and all
proceeds thereof.
4. Representations and Warranties. The Pledgor represents and warrants that:
(a) The Pledged Shares have been duly authorized and validly issued and are
fully paid and non-assessable.
(b) The Pledgor (i) is the legal and beneficial owner of the Pledged Collateral
free and clear of any lien, security interest, option or other charge or
encumbrance except for (x) the security interest created by this Agreement and
(y) the provisions of the Underwriting Agreement and (ii) has legally and
beneficially owned the Pledge Shares since June 27, 1997.
(c) The pledge of the Pledged Shares pursuant to this Agreement creates a valid
and perfected first priority security interest in the Pledged Collateral,
securing the payment of the Secured Obligations.
(d) No consent of any other person or entity and no authorization, approval, or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required (i) for the pledge by the Pledgor of the Pledged
Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by the Pledgor, (ii) for the perfection or
maintenance of the security interest created hereby (including the first
priority nature of such security interest) or (iii) for the exercise by the
Lender of the voting or other rights provided for in this Agreement or the
remedies in respect of the Pledged Collateral pursuant to this Agreement (except
as may be required in connection with any disposition of any portion of the
Pledged Collateral by laws affecting the offering and sale of securities
generally and by the provisions of the Underwriting Agreement).
(e) The Pledged Shares constitute as of such date the percentage of the issued
and outstanding shares of stock of the issuer thereof indicated on Schedule I.
(f) There are no conditions precedent to the effectiveness of this Agreement
that have not been satisfied or waived.
(g) The Pledgor has, independently and without reliance upon the Lender and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
5. Further Assurances. (a) The Pledgor agrees that at any time and from time to
time, at the expense of the Pledgor, the Pledgor will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Lender may reasonably request, in
order to perfect and protect any security interest granted or purported to be
granted hereby or to enable the Lender to exercise and enforce its rights and
remedies hereunder with respect to any Pledged Collateral.
(b) The Pledgor shall pledge additional shares of common stock of the
Company from time to time to the extent required to maintain compliance with the
Collateral Coverage Ratio. Such additional shares shall be pledged based on
initial date of continuous legal ownership by the Pledgor, from earliest to the
most recent.
(c) In the event the Pledgor registers shares of common stock of the Company
with the intention of retaining ownership, the Pledgor agrees to register or
cause to be registered that portion of the Pledged Collateral subject to SEC
Rule 144 as soon as it is feasible.
6. Voting Rights; Dividends; etc. (a) So long as no Event of Default shall
have occurred and be continuing:
(i) The Pledgor shall be entitled to exercise or refrain from exercising any and
all voting and other consensual rights pertaining to the Pledged Collateral or
any part thereof for any purpose not inconsistent with the terms of this
Agreement or the Credit Agreement.
(ii) The Pledgor shall be entitled to receive and retain any and all dividends
and distributions paid in respect of the Pledged Collateral, provided, however,
that any and all
(A) dividends and distributions paid or payable other than in cash in respect
of, and instruments and other property received, receivable or otherwise
distributed in respect of, or in exchange for, and Pledged Collateral, and
(B) dividends and other distributions paid or payable in cash in respect of any
Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus, shall be, and shall be forthwith delivered to the Lender to
hold as, Pledged Collateral and shall, if received by the Pledgor, be received
in trust for the benefit of the Lender, be segregated from the other property or
funds of the Pledgor, and be forthwith delivered to the Lender as Pledged
Collateral in the same form as so received (with any necessary endorsement or
assignment).
(iii) The Lender shall execute and deliver (or cause to be delivered) to the
Pledgor all such proxies and other instruments as the Pledgor may reasonably
request for the purposes of enabling the Pledgor to receive dividends or
distributions that it is authorized to receive and retain pursuant to paragraph
(ii) above.
(b) Upon the occurrence and during the continuance of an Event of Default:
(i) All rights of the Pledgor (x) to exercise or refrain from exercising the
voting and other consensual rights which it would otherwise be entitled to
exercise pursuant to section 6(a)(i) shall, upon notice to the Pledgor by the
Lender, cease and (y) to receive the dividends and distributions which it would
otherwise be authorized to receive and retain pursuant to section 6(a)(ii) shall
automatically cease, and all such rights shall thereupon become vested in the
Lender who shall thereupon have the sole right to exercise or refrain from
exercising such voting and other consensual rights and to receive and hold as
Pledged Collateral such dividends and distributions.
(ii) All dividends and distributions which are received by the Pledgor contrary
to the provisions of paragraph (i) of this section 6(b) shall be received in
trust for the benefit of the Lender, shall be segregated from other funds of the
Pledgor and shall be forthwith paid over to the Lender as Pledged Collateral in
the same form as so received (with any necessary endorsement).
(iii) The Lender, in its sole and absolute discretion, shall either (x) apply in
any manner any Pledged Collateral consisting of cash received by or on behalf of
the Lender under this section 6(b) to the payment of the Loans and other
obligations and under the Loan Documents or (y) deposit and hold such Pledged
Collateral consisting of cash in the Debt Service Reserve Account as additional
Pledged Collateral.
7. Transfers and Other Liens. The Pledgor agrees that it will not (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, except for sales of the
Pledged Collateral made in accordance with the provisions of section 7.2(c) of
the Credit Agreement; or (ii) create or permit to exist any lien, security
interest, option or other charge or encumbrance upon or with respect to any of
the Pledged Collateral, except (x) for the security interest under this
Agreement and (y) as provided under the Underwriting Agreement.
8. Lender Appointed Attorney-in-Fact. The Pledgor hereby appoints the Lender the
Pledgor's attorney-in-fact, with full authority in the place and stead of the
Pledgor and in the name of the Pledgor or otherwise, from time to time in the
Lender's discretion to take any action and to execute any instrument which the
Lender may deem necessary or advisable to accomplish the purposes of this
Agreement (subject to the rights of the Pledgor under section 6), including,
without limitation, to receive, indorse and collect all instruments made payable
to the Pledgor representing any dividend, or other distribution in respect of
the Pledged Collateral or any part thereof and to give full discharge for the
same.
9. Lender May Perform. If the Pledgor fails to perform any agreement contained
herein, the Lender may itself perform, or cause performance of, such agreement,
and the expenses of the Lender incurred in connection therewith shall be payable
by the Pledgor under section 14.
10. The Lender's Duties. The powers conferred on the Lender hereunder are solely
to protect its interest in the Pledged Collateral and shall not impose any duty
upon it to exercise any such powers. Except for the safe custody of any Pledged
Collateral in its possession and the accounting for moneys actually received by
it hereunder, the Lender shall have no duty as to any Pledged Collateral, as to
ascertaining or taking action with respect to calls, conversions, exchanges,
maturities, tenders or other matters relative to any Pledged Collateral, whether
or not the Lender has or is deemed to have knowledge of such matters, or as to
the taking of any necessary steps to preserve rights against any parties or any
other rights pertaining to any Pledged Collateral. The Lender shall be deemed to
have exercised reasonable care in the custody and preservation of any Pledged
Collateral in its possession if such Pledged Collateral is accorded treatment
substantially equal to that which the Lender accords its own property.
11. Remedies upon Default. If any Event of Default shall have occurred and be
continuing:
(a) The Lender may exercise in respect of the Pledged Collateral, in addition to
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code in effect in the State of New York at that time (the "Code")
(whether or not the Code applies to the affected Collateral), and may also,
without notice except as specified below, sell the Pledged Collateral or any
part thereof in one or more parcels at public or private sale, at any exchange,
broker's board or at any of the Lender's offices or elsewhere, for cash, on
credit or for future delivery, and upon such other terms as the Lender may deem
commercially reasonable. The Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to the Pledgor of the time
and place of any public sale or the time after which any private sale is to be
made shall constitute reasonable notification. The Lender shall not be obligated
to make any sale of Pledged Collateral regardless of notice of sale having been
given. The Lender may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
(b) Any cash held by the Lender as Pledged Collateral and all cash proceeds
received by the Lender in respect of any sale of, collection from, or other
realization upon all or any part of the Pledged Collateral may, in the
discretion of the Lender, be held by the Lender as collateral for, and/or then
or at any time thereafter be applied (after payment of any amounts payable to
the Lender pursuant to section 13) in whole or in part by the Lender against,
all or any part of the Secured Obligations in such order as the Lender shall
elect. Any surplus of such cash or cash proceeds held by the Lender and
remaining after payment in full of all the Secured Obligations shall be paid
over to the Pledgor or to whomsoever may be lawfully entitled to receive such
surplus.
12. Registration Rights. (a) If the Lender shall determine to exercise its right
to sell all or any of the Pledged Collateral pursuant to section 11, the Pledgor
agrees that, upon request of the Lender, the Pledgor will, at its own expense:
(i) execute and deliver, and use its best efforts to cause the Company to
execute and deliver, all such instruments and documents, and do or cause to be
done all such other acts and things, as may be necessary or, in the opinion of
the Lender, advisable to register such Pledged Collateral under the provisions
of the 1933 Act, and to cause the registration statement relating thereto to
become effective and to remain effective for such period as prospectuses are
required by law to be furnished, and to make all amendments and supplements
thereto and to the related prospectus which, in the opinion of the Lender, are
necessary or advisable, all in conformity with the requirements of the 1933 Act
and the rules and regulations of the SEC applicable thereto;
(ii) use its best efforts to qualify the Pledged Collateral under the state
securities or "Blue Sky" laws and to obtain all necessary governmental approvals
for the sale of the Pledged Collateral, as requested by the Lender;
(iii) use its best efforts to cause the Company to make available to its
security holders, as soon as practicable, an earning statement which will
satisfy the provisions of section 11(a) of the 1933 Act; and
(iv) do or cause to be done all such other acts and things as may be necessary
to make such sale of the Pledged Collateral or any part thereof valid and
binding and in compliance with applicable law.
(b) The Pledgor agrees that it shall take any and all actions necessary to
ensure that the portion of the Pledged Collateral that is deemed to be
Registrable Securities (as defined in the Registration Rights Agreement dated
November 1, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Registration Rights Agreement") among each of the Holders executing a
signatory page thereto and the Company) shall have "piggy-back" registration
rights of the Pledgor pursuant to section 2 of the Registration Rights
Agreement. The Pledgor further agrees that, upon request of the Lender, as
between the Pledged Collateral and all other shares of the Company legally and
beneficially owned by the Pledgor, the Pledgor shall cause the Pledged
Collateral to be registered pursuant to section 2 of the Registration Rights
Agreement prior to any other such shares.
13. Instructions from Lender. The Pledgor hereby authorizes and instructs each
issuer of any Pledged Shares pledged hereunder to (i) comply with any
instruction received by it from the Lender in writing that (x) states that an
Event of Default has occurred and is continuing and (y) is otherwise in
accordance with the terms of this Agreement, without any other or further
instructions from the Pledgor, and the Pledgor agrees that each such issuer
shall be fully protected in so complying, and (ii) unless otherwise expressly
permitted hereby, pay any dividends or other payments with respect to the
Pledged Shares directly to the Lender.
14. Expenses. The Pledgor will upon demand pay to the Lender the amount of any
and all reasonable expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, which the Lender may incur in connection
with (i) the administration of this Agreement, (ii) the custody or preservation
of, or the sale of, collection from, or other realization upon, any of the
Pledged Collateral, (iii) the exercise or enforcement of any of the rights of
the Lender hereunder or (iv) the failure by the Pledgor to perform or observe
any of the provisions hereof.
15. Amendments, etc. No amendment or waiver of any provision of this Agreement,
and no consent to any departure by the Pledgor herefrom, shall in any event be
effective unless the same shall be in writing and signed by the Lender, and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
16. Addresses for Notices. All notices and other communications provided for
hereunder shall be in writing (including telecopier, electronic e-mail,
telegraphic, telex or cable communication) and mailed, telecopied, e-mailed,
telegraphed, telexed, cabled or delivered to it, at its address specified in the
Credit Agreement, or, as to either party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and other communications shall be effective when received.
17. Continuing Security Interest; Assignments under Credit Agreement. This
Agreement shall create a continuing security interest in the Pledged Collateral
and shall (i) remain in full force and effect until the later of (x) the payment
in full of the Note and all other amounts payable under this Agreement and (y)
the expiration or termination of the Commitment, (ii) be binding upon the
Pledgor, its successors and assigns, and (iii) inure to the benefit of, and be
enforceable by, the Lender and its successors, transferees and assigns. Without
limiting the generality of the foregoing clause (iii), the Lender may assign or
otherwise transfer all or any portion of its rights and obligations under the
Credit Agreement (including, without limitation, all or any portion of its
Commitment, the Loans and the Note) to any other person or entity, and such
other person or entity shall thereupon become vested with all the benefits in
respect thereof granted to the Lender herein or otherwise. Upon the later of the
payment in full of the Note and all other amounts payable under this Agreement
and the expiration or termination of the Commitment, the security interest
granted hereby shall terminate and all rights to the Pledged Collateral shall
revert to the Pledgor. Upon any such termination, the Lender will, at the
Pledgor's expense, return to the Pledgor such of the Pledged Collateral as shall
not have been sold or otherwise applied pursuant to the terms hereof and execute
and deliver to the Pledgor such documents as the Pledgor shall reasonably
request to evidence such termination.
18. Governing Law; UCC Terms. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York. Unless otherwise defined
herein or in the Credit Agreement, terms defined in Article 9 of the Code are
used herein as therein defined.
19. Counterparts. This Agreement may be executed in any number of counterparts,
and by different parties on separate counterparts, each of which shall be an
original, but all of which together shall constitute one agreement.
IN WITNESS WHEREOF, the Pledgor and the Lender have caused this Agreement to be
duly executed and delivered as of the date first above written.
MECHANICAL TECHNOLOGY KEYBANK NATIONAL
INCORPORATED, ASSOCIATION,
as Pledgor as Lender
By: /S/ XXXXXXX X. XXXXXXX By: /s/ XXXXXXX X. XXXXXX
Xxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxxx, Vice President
Vice President
& Chief Financial Officer
ACKNOWLEDGEMENT AND CONSENT
The undersigned hereby acknowledges receipt of a copy of the Stock Pledge
Agreement dated as of March 29, 2000 (the "Agreement"), made by the Pledgor for
the benefit of KeyBank National Association, as the Lender. The undersigned
agrees for the benefit of the Lender as follows:
1. The undersigned will be bound by the terms of the Agreement and will
comply with such terms insofar as such terms are applicable to the undersigned.
2. The undersigned will notify the Lender promptly in writing of the
occurrence of any of the events described in section 1(b) of the Agreement.
3. The terms of sections 12 and 13 of the Agreement shall apply to it,
mutatis mutandis, with respect to all actions that may be required of it
pursuant to sections 12 and 13 of the Agreement.
PLUG POWER INC.
By_______________________________________
Name:
Title:
Address for Notices:
_________________________________________
_________________________________________
_________________________________________
Fax:
SCHEDULE I
Percentage
Stock of
Class of Certificate Number of Outstanding
Stock Issuer Stock No. Par Value Shares Shares 1
Plug Power Common PLG0917 $0.01 2,000,000 4.65%
Inc. Stock
1 As of December 31, 1999.
