EXHIBIT 10.8
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PLUG POWER, LLC
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LLC INTEREST PURCHASE AGREEMENT
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Dated as of February 16, 1999
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LLC INTEREST PURCHASE AGREEMENT
AGREEMENT, dated as of February 16,1999, between PLUG POWER, LLC, a
Delaware limited liability company (the "Company"), and Xxxxxxx X. Xxxxxx (the
"Investor").
WHEREAS, the Company proposes to issue and sell to the Investor an
aggregate of 1,440,000 Shares of Class A Membership Interests (the "Investor
Interest") and a warrant (the "Warrant") to purchase 400,000 Shares of Class A
Membership Interests (together, the Investor Interest and Warrant shall be
referred to as the "Purchased Securities") for an aggregate purchase price of
$9.6 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
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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 $9.6 million for the Purchased Securities.
3. Closing.
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(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 Investor Interest and a certificate evidencing the
Warrant, which certificates shall be registered in the Investor's name, against
delivery to the Company of payment by check or 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 $9.6 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
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Transfer of Securities.
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(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 he must bear the economic risk of
his investment in the Purchased Securities for an indefinite period of time
since they has 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 1933 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 the issuer corporation receives an opinion of counsel
(which may be counsel for the issuer corporation) stating that such
sale or transfer is exempt from the registration and prospectus
delivery requirements of such Act."
(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 without first providing the Company with an opinion of
counsel (which may be counsel for the Company) to the effect that 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, except that no such registration or opinion shall be required
with respect to (A) a transfer not involving a change in beneficial ownership or
(B) a sale to be effected in accordance with Rule 144 of the
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Commission under the Securities Act (or any comparable exemption).
(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 (c).
5. Representations and Warranties by the Company. In order to induce the
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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
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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 of 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
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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
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consists of 25,000,000 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 20,000,000 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, and prior to the issuance of the Warrant, the Company has warrants
and options outstanding, which upon exercise and payment of an aggregate of
$89,100,900 to the Company, will entitle the holders of such warrants and
options to an aggregate of 11,250,000 Shares of Class A Membership Interests and
2,033,900 Shares of Class B Membership Interests. Other than such warrants and
options, and the Warrant, 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
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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
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and
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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
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the transactions contemplated herein and any action or omission of the Company,
any right or 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
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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
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Membership Interests and the number of Shares held by such holders are as set
forth on Schedule 5.8.
5.9 Warrants and Options. The holders of options and warrants to
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purchase Shares of Class A Membership Interests, the number of Shares underlying
such options and warrants, the exercise price for such warrants and options and
the expiration dates of such options and warrants are as set forth on Schedule
5.9.
6. Representatives and Warranties by the Investor. In order to induce the
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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 legal capacity to
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execute and deliver this Agreement and to perform his obligations hereunder and
to consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by the Investor and 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
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warrants to the Company that he is acquiring the Purchased Securities for
investment purposes only, for his 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 he 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
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further assurances of such status as may be reasonably requested by the Company.
7. Covenants.
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7.1 Manager Appointment. The Company agrees to use its reasonable
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best efforts to have the Investor appointed as a Manager of the Company.
7.2 Fuel Cell Delivery. The Company agrees that as part of its Test
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and Evaluation Program, it will deliver a seven kilowatt Test and Evaluation
fuel cell system to the Investor's primary residence in Milwaukee, Wisconsin by
December 31, 1999.
8. Miscellaneous
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8.1 Amendment. This Agreement may be amended, supplemented or
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modified only by a written instrument duly executed by or on behalf of each
party hereto.
8.2 Notices. All notices, receipts, consents, instructions, approvals
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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:
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
With a copy to:
Schoenberg, Fisher, Xxxxxx & Xxxxxxxxx, Ltd.
000-.X. Xxxxxxxxx Xxxxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
(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-Mafia Xxxxxxx, Esq.
With a copy to:
Xxxxxx, Xxxxx & Bockius LLP
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000 Xxxx Xxxxxx
Xxx Xxxx, XX 10 178
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.
8.3 Survival of Representations and Warranties, etc. All representations
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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.
8.4 Severability. Should any one or more of the provisions of this
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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.
8.5 Headings. The headings of the Sections and paragraphs of this
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Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
8.6 Choice of Law. It is the intention of the parties that the internal
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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.
8.7 Fees and Expenses. The fees and expenses arising in connection with
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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.
8.8 Confidentiality. The Investor will hold in strict confidence from any
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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.
8.9 No Assignment. Neither this Agreement nor any right, interest or
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obligation hereunder may be assigned (by operation of law or otherwise) by any
party hereto without the
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prior written consent of the other party hereto and any attempt to do so will be
void.
8. 10 Counterparts. This Agreement may be executed in any number of
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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
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Name:
Title:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
SCHEDULE 1 TO THE LLC INTEREST PURCHASE AGREEMENT
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This Schedule 1 to that certain LLC Interest Purchase Agreement (the
"Agreement"), dated as of February 16, 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
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defined in the Company's Limited Liability Company Agreement.
"Class B Membership Interests" means the Class B Membership Interests as
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defined in the Company's Limited Liability Company Agreement.
"Closing" means the closing of the sale and purchase by the Investor of the
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Purchased Securities on the Closing Date.
"Closing Date" means February 16, 1999, or such different time or day as
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the Investor and the Company shall agree.
"Commission" means the United States Securities and Exchange Commission or
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any similar agency then having jurisdiction to enforce the Securities Act.
"Limited Liability Company Agreement" means the Limited Liability Company
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Agreement of the Company, dated as of June 27, i 997, as amended by the First,
Second, Third and Fourth Amendments thereto, respectively dated April 24, 1998,
June 10, 1998, November 30, 1998 and January 29, 1999.
"Person" shall include any natural person, corporation, trust, association,
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company, partnership, joint venture and other entity and any Governmental
Authority.
"Securities Act" means the Securities Act of 1933, as amended.
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"Shares" means units of Class A Membership Interests or Class B Membership
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Interests.
"Test and Evaluation Program" means the Company's program for producing
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test and evaluation fuel cell systems in 1999 for the purpose of demonstrating
residential fuel cell system technology and providing the Company with field
test data.
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Schedule 5.8
Class A Membership Interests
As of February 15, 1999
GE On-Site
Edison Development Mechanical Power,
Corp. Technology Inc. Inc. Total
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10,000,000 7,750,000 2,250,000 20,000,000
Schedule 5.9
Warrants and Options for Class A Membership Interests
As of February 15, 1999
Option/Warrant Type of Date of Expiration Date No. Of Shares Exercise price
Holder Agreement Agreement of Agreement per share
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MTI Option 4/24/98 4/23/99 250,000 $1.00
MTI Option 6/15/98 6/14/99 2,000,000 $1.00
MTI & EDC Equity None *1,000,000 Each for CY $7.50
Contribution & Period Ending
Warrant 12/31/99
*2,000,000 Each for CY
Period Ending
12/31/00
GE On-Site Call Option 2/5/99 Later of 3,000,000 $12.50
Power, Inc. 12/31/00 or 1st
anniversary of
Plug Power's
IPO. Not later
than 12/31/03
*If the Board of Managers determines that Plug Power requires additional
funding.
