EXHIBIT 10.13
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED EXCEPT PURSUANT TO A REGISTRATION STATEMENT IN EFFECT
WITH RESPECT TO THE SECURITY UNDER SUCH ACT OR AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS UNDER SUCH ACT.
LLC INTEREST PURCHASE WARRANT
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Date of Issuance: April ___, 1999 Certificate No.____
For value received, PLUG POWER, LLC, a Delaware limited liability company
(the "Company"), hereby grants to Southern California Gas Company, or its
registered assigns (the "Registered Holder"), the right to purchase from the
Company, at the Exercise Price therefor, 350,000 Shares of Class A Membership
Interests of the Company, as adjusted from time to time pursuant to Section 2
hereof (the "Warrant Shares"). This Warrant is issued pursuant to the LLC
interest Purchase Agreement. The Exercise Price and number of Warrant Shares
(and the amount and kind of other securities) for which this Warrant is
exercisable shall be subject to adjustment as provided herein. Certain
capitalized terms used herein are defined in Section 3) hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
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1A. Exercise Period. The purchase rights represented by this Warrant may
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be exercised, in whole or in part, at any time and from time to time, following
the Date of Issuance until the earliest of (i) December 31, 2001, (ii) a
Qualifying Offering or (iii) 12 months after an initial public offering of the
Company's Shares of Class A Membership Interests other than a Qualifying
Offering (the "Exercise Period").
1B. Exercise Procedure.
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(i) This Warrant shall be deemed to have been exercised when all of
the following items have been delivered to the Company (the "Exercise Time"):
(a) a completed Exercise Agreement, in substantially the form set
forth in Exhibit I hereto, executed by the Registered Holder;
(b) this Warrant; and
(c) a certified or bank check or wire transfer payable to the Company
in an amount equal to the Exercise Price multiplied by the number of Warrant
Shares being purchased upon such exercise (the "Aggregate Exercise Price").
(ii) Certificates for Warrant Shares (including, without limitation,
fractional shares) purchased upon exercise of this Warrant shall be delivered by
the Company to the Purchaser within seven business days after the date of the
Exercise Time together with any cash payable in lieu of a fraction of a share
pursuant to Section IC below. Unless this Warrant has expired or all of the
purchase rights represented hereby have been exercised, the Company shall
prepare a new Warrant, substantially identical hereto, representing the rights
formerly represented by this Warrant which have not expired or been exercised
and shall, within such seven-day period, deliver such new Warrant to the
Registered Holder.
(iii) The Warrant Shares issuable upon the exercise of this
Warrant shall be deemed to have been issued to the Registered Holder at the
Exercise Time.
(iv) The Company shall not close its books against the transfer of
this Warrant or of any Warrant Shares issued or issuable upon the exercise of
this Warrant in any manner which Interferes with the timely exercise of this
Warrant.
(v) Notwithstanding any other provision hereof, if an exercise of any
portion of this Warrant is to be made in connection with a public offering or a
Sale of the Company, then such exercise may at the election of the Registered
Holder be conditioned upon the consummation of such transaction, in which case
such exercise shall not be deemed to be effective until immediately prior to the
consummation of such transaction.
(vi) If the Warrant Shares issuable by reason of exercise of this
Warrant are convertible into or exchangeable for any other stock or securities,
then the Company shall, at the Registered Holder's option and upon surrender of
this Warrant by the Registered Holder as provided above together with any
notice, statement, payment and other requirement required to effect such
conversion or exchange of Warrant Shares, deliver to the Registered Holder a
certificate or certificates representing the stock or securities into which the
Warrant Shares issuable by reason of such conversion are convertible or
exchangeable.
IC. Fractional Shares. If a fractional share of a Warrant Share would,
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but for the provisions of Section IA, be issuable upon exercise of the rights
represented by this Warrant, the Company may, but should not be required, in
lieu of such fractional share, within five business days after the date of the
Exercise Time, deliver to the Purchaser a check payable to the Purchaser in lieu
of such fractional share in an amount equal to the difference between the Fair
Market Value of such fractional share as of the date of the Exercise Time and
the Exercise Price of such fractional share.
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SECTION 2. Adjustments; Notices.
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2A. Subdivision or Combination of Class A Membership Interests. If the
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Company at any time subdivides (by any share split, dividend, recapitalization
or otherwise) the Shares of Class A Membership Interests into a greater number
of shares or pays a dividend or makes a distribution to holders of the Shares of
Class A Membership Interests in the form of Shares of Class A Membership
Interests, then the Exercise Price in effect immediately prior to such
subdivision shall be proportionately reduced and the number of Warrant Shares
obtainable upon exercise of this Warrant (whether or not then acquirable or
subject to a contingency), as the case may be, shall be proportionately
increased. If the Company at any time combines (by reverse share split or
otherwise) the Shares of Class A Membership Interests into a smaller number of
shares, then the Exercise Price in effect immediately prior to such combination
shall be proportionately increased and the number of Warrant Shares obtainable
upon exercise of this Warrant (whether or not then acquirable or subject to a
contingency), as the case may be, shall be proportionately decreased.
2B Organic Change. Any recapitalization, reorganization,
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reclassification, consolidation, merger, sale of all or substantially all of the
Company's assets or other transaction which is effected in such a way that
holders of Shares of Class A Membership Interests are entitled to receive
(either directly or upon subsequent liquidation) stock, securities or assets
with respect to or in exchange for Shares of Class A Membership Interests is
referred to herein as an "Organic Change." Prior to the consummation of any
Organic Change, the Company shall make appropriate provision (in form and
substance reasonably satisfactory to the Required Holders) to that the
Registered Holder shall have upon consummation thereof the right to acquire and
receive upon exercise hereof such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for the number of Warrant
Shares immediately theretofore acquirable and receivable upon exercise of such
Registered Holder's Warrants had such Organic Change not taken place.
2C. Notices.
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(i) Promptly upon any adjustment of the Exercise Price, the Company
shall give written notice thereof to the Registered Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall also give written notice to the Registered
Holder at least 30 days prior to the date on which any Organic Change or
Liquidity Event shall take place.
2D. Minimum Adjustment. No adjustment in the Exercise Price shall be made
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if such adjustment is less than $.01; provided, however, that any adjustments
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which by reason of this Section 2D are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
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SECTION 3. Definitions. The following terms have the meanings set forth
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below:
"Affiliate" means, as applied to any Person, (i) any other Person directly
or indirectly controlling, controlled by or under common control with, that
Person, (ii) any other Person that owns or controls 10% or more of any class of
equity securities (including any equity securities issuable upon the exercise of
any Option or the conversion or exchange of any Convertible Securities) of that
Person or any of its Affiliates, or (iii) any member, director, partner,
officer, agent, employee or relative of such Person or any of its direct or
indirect Affiliates. For the purposes of this definition, "control" (including
with correlative meanings, the terms "controlling", "controlled by", and "under
common control with") as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of that Person, whether through ownership of voting securities or
by contract or otherwise. With respect to a natural person, the term"Affiliate"
also shall include such person's spouse and lineal descendants.
"Aggregate Exercise Price" has the meaning ascribed to it in Section IB(i).
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"Class A Membership Interests" means the Class A Membership Interests of
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the Company as defined in the Limited Liability Company Agreement.
"Convertible Securities" means any right, option or security exercisable
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for, or convertible or exchangeable into, Shares of Class A Membership
Interests.
"Date of Issuance" means the date the Company initially issues this Warrant
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regardless of the number of times new certificates representing the unexpired
and unexercised rights formerly represented by this Warrant shall be issued.
"Exercise Period" has the meaning ascribed to it in Section IA.
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"Exercise Price" means $8.50 for each Warrant Share as such price ma be
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adjusted from time to time pursuant to Section 2 hereof.
"Exercise Time" has the meaning ascribed to it in Section IB(i).
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"Fair Market Value" means, as to any security, as of a particular date (i)
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the average of the closing sales prices on such date of such security on all
domestic securities exchanges on which such security is listed, or (ii) if there
have been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such day, or
(iii) if on any day such security is not so listed, the sales price for such
security as of 4:00 P.M., New York time, as reported on the Nasdaq Stock Market,
or (iv) if such security is not reported on the Nasdaq Stock Market, the average
of the representative bid and asked quotations for such securities of 4:00 P.M.,
New York time, as reported on the Nasdaq interdealer quotation system, or any
similar successor organization, in each such case averaged over a period of 21
trading days consisting of the day before "Fair Market Value" is being
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determined and the immediately prior 20 trading days prior to such day during
which such security was traded. Notwithstanding the foregoing, if at any time
of determination such security is not registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, and either listed on a national
securities exchange or authorized for quotation in the Nasdaq Stock Market, then
Fair Market Value shall mean the price that would be paid per share for the
entire common equity interest in the issuer thereof in an orderly sale
transaction between a willing buyer and a willing seller, using valuation
techniques then prevailing in the securities industry and assuming full
disclosure of all relevant information and a reasonable period of time for
effectuating such sale, without discount for lack of liquidity, or minority
position. Fair Market Value shall be determined by the Company's Management
Committee in its good faith judgment.
"Liquidity Event" means (1) a liquidation, dissolution or winding-up of the
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Company or (ii) a Sale of the Company.
"Limited Liability Company Agreement" means the Limited Liability Company
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Agreement of the Company, dated June 27, 1997, as amended.
"LLC Interest Purchase Agreement" means the LLC Interest Purchase
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Agreement, dated as of April __, 1999, between the Company and Southern
California Gas Company, as such agreement may be amended, modified or restated
from time to time.
"Person" means any individual, corporation, joint stock corporation,
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limited liability company or partnership, general partnership, limited
partnership, proprietorship, joint venture, other business organization, trust,
union, association or government or regulatory authority.
"Qualifying Offering" means the consummation of an initial underwritten
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public offering of Shares of Class A Membership Interests registered under the
Securities Act of 1933, as amended, pursuant to which the Shares of Class A
Membership Interests are sold at a price per share of at least $8.50 (subject to
appropriate adjustment for share splits, reverse share splits, share dividends,
recapitalizations, reclassifications and similar events).
"Sale of the Company" means the sale of the Company (whether by merger,
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consolidation, recapitalization, reorganization, sale of securities, sale of
assets or otherwise) in one transaction or a series of related transactions to a
Person or Persons, pursuant to which such Person or Persons (together with its
Affiliates) acquires (i) securities representing at least a majority of the
voting, power of all securities of the Company, assuming the conversion,
exchange or exercise of all securities convertible, exchangeable or exercisable
for or into voting securities, or (ii) a material portion of the Company's
consolidated assets other than in the ordinary course of business.
"Shares" means units of Class A Membership Interests.
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"Warrant Shares" has the meaning ascribed thereto in the first paragraph of
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this Warrant; provided, that if the securities issuable upon exercise of the
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Warrants are issued by an entity other than the Company or there is a change in
the class of securities so issuable, then the term "Warrant Shares" shall mean
shares of the security issuable upon exercise of the Warrants if such security
is issuable in shares, or shall mean the equivalent units in which such security
is issuable if such security is not issuable in shares.
SECTION 4. No Voting Rights: Limitations of Liability. This Warrant shall
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not entitle the Registered Holder hereof to any voting rights or other rights as
a member of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Warrant Shares, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such Registered Holder for the Exercise Price of Warrant Shares
acquirable by exercise hereof or as a stockholder of the Company.
SECTION 5. Restrictions. The Registered Holder agrees that it will not
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sell, transfer or otherwise dispose of this Warrant or any Warrant Shares, in
whole or in part, except pursuant to an effective registration statement under
the Securities Act of 1933, as amended, or an exemption from registration
thereunder and then only in accordance with the terms of the Limited Liability
Company Agreement. Each certificate evidencing Warrant Shares and each Warrant
issued upon such transfer shall bear the restrictive legend required by the LLC
Interest Purchase Agreement. The Company may require, as a condition of
allowing the transfer or exchange of this Warrant, that the Registered Holder
furnish to the Company an opinion of counsel reasonably acceptable to the
Company to the effect that such transfer or exchange is permitted under the
Securities Act of 1933, as amended, and applicable state securities laws.
SECTION 6. Warrant Exchangeable for Different Denominations. This Warrant
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is exchangeable, upon the surrender hereof by the Registered Holder at the
principal office of the
Company, for new Warrants of like tenor representing in the aggregate the
purchase rights hereunder, and each of such new Warrants shall represent such
portion of such rights as is designated by the Registered Holder at the time of
such surrender. All Warrants representing portions of the rights hereunder are
also referred to herein as "Warrants."
SECTION 7. Replacement. Upon receipt of evidence reasonably satisfactory
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to the Company (an affidavit of the Registered Holder shall be satisfactory) of
the ownership and the loss, theft, destruction or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Company or, in the case
of any such mutilation upon surrender of such certificate, the Company shall
execute and deliver in lieu of such certificate a new certificate of like kind
representing the same rights represented by such lost, stolen, destroyed or
mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate.
SECTION 8. Notices. Except as otherwise expressly provided herein, all
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notices and deliveries referred to in this Warrant shall be in writing shall be
delivered personally, sent by
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registered or certified mail, return receipt requested and postage prepaid or
sent via nationally recognized overnight courier or via facsimile, and shall be
deemed to have been given when so delivered (or when received, if delivered by
any other method) if sent (i) to the Company, at its principal executive offices
and (ii) to a Registered Holder, at such Registered Holder's address as it
appears in the records of the Company (unless otherwise indicated by any such
Registered Holder).
SECTION 9. Amendment and Waiver. Except as otherwise provided herein, the
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provisions of this Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the prior written consent of the Registered
Holder.
SECTION 10. Warrant Register. The Company shall maintain at its principal
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executive offices books for the registration and the registration of transfer of
Warrants. The Company may deem and treat the Registered Holder as the absolute
owner hereof (notwithstanding any notation of ownership or other writing thereon
made by anyone) for all purposes and shall not be affected by any notice to the
contrary.
SECTION 11. Descriptive Headings: Governing Law. The descriptive headings
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of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. THE CORPORATION
LAWS OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE
RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
* * * *
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IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duty authorized officers under its corporate seal and to be
dated as of the date hereof.
PLUG POWER, LLC
By: /s/ Xxxx Xxxxxxxxx
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Name:
Title:
Attest:
/s/ Xxx-Xxxxx Xxxxxxx
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Name:
Title:
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EXHIBIT I
EXERCISE AGREEMENT
Dated:
To: Plug Power, LLC
(1) The undersigned, pursuant to the provisions set forth in the attached
Warrant (Certificate No.___), hereby agrees to subscribe for the purchase of
[all of the] [Insert number] Warrant Shares covered by such Warrant and makes
payment herewith in full therefor at the price per share and in the manner
provided by such Warrant.
(2) In exercising this Warrant, the undersigned hereby confirms and
acknowledges that the Warrant Shares are being acquired solely for the account
of the undersigned and not as a nominee for any other party, and for investment,
and that the undersigned will not offer, sell or otherwise dispose of any such
Shares of Class A Membership Interests except under circumstances that will not
result in a violation of the Securities Act of 1933 ), as amended (the "Act"),
or any applicable state securities laws. Further, the undersigned acknowledges
(i) that the purchase of the Shares of Class A Membership Interests is a long
term investment (ii) that the undersigned must bear the economic risk of the
investment for an indefinite period of time because the shares have not been
registered under the Act or any state securities laws and that the undersigned's
financial condition is such that it is not likely that it will be necessary to
dispose of any such shares in the foreseeable future and (ill) that the
certificates representing the Securities purchased will bear appropriate legends
as to the foregoing.
(3) The undersigned has such experience and knowledge in financial and
business matters to be capable of evaluating the merits and risks of the
investment contemplated hereby and has reviewed the merits of such investment
with tax and legal counsel and other advisors to the extent deemed advisable.
The undersigned has been given the opportunity to ask questions of, and receive
answers from, the Company concerning the investment and to obtain any additional
information the undersigned deemed necessary. The undersigned is an "accredited
investor" as defined in Rule 501 under the Act.
(4) Please issue a certificate or certificates representing said Shares of
Class A Membership Interests in the name of the undersigned.
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[Name]
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Signature
Address
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EXHIBIT 10.13
AMENDMENT NO. 1 TO LLC INTEREST
PURCHASE WARRANT
This amendment ("Amendment") is entered into as of August 26, 1999 between
Plug Power, LLC, a Delaware limited liability company (the "Company"), and
Southern California Gas Company ("Holder").
WHEREAS, the Company and Holder are parties to an LLC Interest Purchase
Warrant dated April 9, 1999 (the "Existing Warrant"); and
WHEREAS, the Company and Holder desire to amend the Existing Warrant as
provided herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The Existing Warrant is hereby amended by adding a new Section 1D,
which shall immediately follow Section 1C, and which shall read in its entirety
as follows:
1D. Automatic Exercise. Notwithstanding any provision in this
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Warrant to the contrary, in the event of the consummation of an
initial underwritten public offering of Shares of Class A Membership
Interests (or shares of common stock issued in exchange for Class A
Membership Interests in any merger, recapitalization or similar
transaction) registered under the Securities Act of 1933, as amended,
pursuant to which the Shares of Class A Membership Interests or shares
of common stock, as the case may be, are sold at a price to the public
of at least $8.50 per share (subject to appropriate adjustment for
share splits, reverse share splits, share dividends,
recapitalizations, reclassifications and similar events), then (i)
this Warrant shall be automatically exercised in full immediately
prior to the consummation of such offering, (ii) the Exercise Time
shall be deemed to occur immediately prior to the consummation of such
offering and (iii) Holder shall deliver to the Company at the Exercise
Time a completed Exercise Agreement, this Warrant and a certified or
bank check payable to the Company in an amount equal to the Exercise
Price multiplied by the total number of Warrant Shares.
2. Except as amended hereby, the Existing Warrant shall remain in full
force and effect in accordance with its terms.
3. Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Existing Warrant.
4. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same document.
PLUG POWER, LLC
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx, President and Chief
Executive Officer
SOUTHERN CALIFORNIA GAS COMPANY
By : /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: President - Energy Transportation
Services
