EXHIBIT 10.12
PLUG POWER, LLC
LLC INTEREST PURCHASE AGREEMENT
Dated as of April 9, 1999
LLC INTEREST PURCHASE AGREEMENT
AGREEMENT, dated as of April 9, 1999, between PLUG POWER, LLC, a Delaware
limited liability company (the "Company"), and Southern California Gas Company,
a California corporation (the "Investor").
WHEREAS, the Company proposes to issue and sell to the Investor an
aggregate of 1,000,000 Shares of Class A Membership Interests (the "Investor
Interest") and a warrant (the "Warrant") to purchase 350,000 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
$6.67 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. 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 $6.67 million for the Purchased Securities and
engage in the services set forth in Section 9.
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 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 cashier's 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 $6.67 million.
(c) At the Closing, the Investor shall execute the Limited Liability
Company Agreement attached hereto as Schedule 3(c) 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 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 a reasonably
satisfactory opinion of counsel 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 a reasonably
satisfactory opinion of counsel 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 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
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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
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 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
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 24,049,850 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
$90,250,900 to the Company, will entitle the holders of such warrants and
options to an aggregate of 9,400,000 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, 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 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.
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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 valid g 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 such holders 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 and the
expiration dates of such options and warrants are as set forth on Schedule 5.9.
5.10 The Company has not been charged, nor to the best of its knowledge is
it threatened to be charged, with infringement of, nor to the best of its
knowledge has it infringed, any existing patent, or pending application
therefor, any registered or unregistered trademark, service xxxx, trade name,
common-law or registered copyright, or other proprietary right of any property
in connection with its business. The consummation of the transactions
contemplated hereby will not alter or impair any of such rights. Use of the
Company's PEM fuel cell system (the "Product") does not, and sale in the future
would not, to the best knowledge of the Company, infringe upon any existing
patent, or pending application therefor, agreement or right or claim of any
party. A true and correct listing of all patents, trademarks, service marks,
trade names, copyrights and licenses held by, and patent and trademark
applications filed by the Company is attached as Schedule 5.10.
5.11 The Company is not (and to the best knowledge of the Company no other
party is) and shall not be in breach or violation of, or default under, and
there is no valid basis for a claim of breach or violation of, or default under,
any agreement, instrument, or other obligation of any type to which the Company
or GE Fuel Cell Systems, L.L.C. is a party or is bound (a "Material Contract")
which involves a commitment or forbearance which could reasonably exceed $25,000
during a 12-month period and (a) relates to its business including, without
limitation, the Product or (b) to which any of the Company's assets is subject,
and no event has occurred which constitutes or, with the lapse of time or the
giving of notice or both, would constitute such a breach, violation or default
by the Company thereunder. Each Material Contract is listed on Schedule 5.11.
5.12 The Company has complied with, and is not in violation of, applicable
federal,
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state and local laws, rules and regulations materially affecting the operation
of its business.
5.13 The Company has duly and timely filed all federal, state and local tax
reports and returns required to be filed by it, and withheld and, if payable,
paid, all taxes required to be withheld from or paid relating to salaries paid
to its employees.
5.14 While they have not been audited, all of the financial statements,
books and records of the Company for the calendar years 1997 and 1998, as made
available to the Investor and its advisors for inspection prior to the Closing
Date, have been prepared in accordance with generally accepted accounting
principles, consistently applied throughout the periods covered thereby, and
fairly and accurately present the financial condition of the Company.
5.15 No Reqistration Riehts. No securities issued by the Company to date,
nor securities subject to warrants issued by the Company to date, are subject to
registration rights, whether "demand rights," "piggyback rights" or otherwise.
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 Investor. This
Agreement constitutes a legal, valid and bindina oblication 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. Indemnity Remedies
7.1 Indemnity. The Company shall indemnify, defend and hold Investor
(and its directors, officers, direct and indirect parent companies, employees
and agents) harmless from and against any and all claims, demands, losses,
costs, expenses, obligations, liabilities,
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damages, recoveries and deficiencies, including interest, penalties and
reasonable attorneys fees (collectively, "Claims") that the Investor shall incur
or suffer which arise, result from or relate to any material breach of warranty
or materially inaccurate or materially erroneous representation made by the
Company. The Investor shall indemnify, defend and hold the Company (and its
directors, officers, direct and indirect parent companies, Class A Members,
employees and agents) harmless from and against any and all Claims that the
Company shall incur or suffer which arise, result from or relate to any material
breach of warranty or materially inaccurate or materially erroneous
representation made by the Investor.
7.2 Investor's Right of Offset. If Investor in good faith determines
that it has properly incurred any Claims for which Investor is entitled to
indemnification from the Company under Section 7.1, the Investor may, at its
option and without prejudice to any right of the Investor to proceed directly
against the Company under Section 7.1, be entitled to offset all or any portion
of the amount of any liability, loss, damage or expense to which the Company
shall be entitled to hereunder against any amount owing to the Company by
Investor, including, without limitation, under any LLC Interest Purchase Warrant
in connection with the exercise of warrants subject thereto. The exercise of
such right of offset by the Investor hereunder shall be evidenced by such means
of a notice to such effect given by the Investor to the Company which sets forth
all details relating to and the basis for such offset. Upon the exercise by the
Investor of its right to offset hereunder, the amount to which the Investor is
entitled to offset shall be, and is deemed to be, applied in reduction of such
amounts due to the extent specified in the notice of offset.
7.3 Indemnification Procedures. The indemnified party shall promptly
notify the indemnifying party of any liability, breach of warranty, inaccuracy,
misrepresentation or any other Claim arising under the foregoing indemnification
provisions. If any third party shall notify either the Investor or the Company
(the "Indemnified Party") with respect to any matter (a "Third Party Claim")
that may give rise to a claim for indemnification against the other (the
"Indemnifying Party") under this Section 7, then the Indemnifying Party may
contest and defend in good faith any Third Party Claim covered by this section.,
provided such contest is made without cost or prejudice to the Indemnified
Party, and provided that within ten (10) days of the Indemnifying Party's
receipt of notice of such claim, the Indemnifying Party notifies the Indemnified
Party of its desire to defend and contest such claim. If the Indemnifying, Party
does not so notify the Indemnified Party of its desire to contest the claim, the
Indemnifying Party shall reimburse tiie Indemnified Party for any payment
actually made by the Indemnified P"arty at any time after the Closing Date with
respect to any Claims to which the foregoing indemnity relates.
7.4 Other Remedies. In addition to any other remedy which the
Investor may have available to it at law or in equity, the Investor shall be
entitled to exercise any remedy in connection with any Claims which it may have
against the Company which any other member of the Company may have against the
Company with respect to events or circumstances similar to such claims. This
right shall be broadly construed to be quantifiably equivalent to such other
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members' remedies even where such remedies would not be directly applicable or
practicable under this Agreement.
8. Anti-dilution Rights.
8.1 Attached hereto as Exhibit A is a proposed amendment to the
Company's Limited Liability Company Agreement that the Company intends to submit
to its interestholders.
8.2 The Company covenants that it will not grant anti-dilution rights
to any person more favorably than those set out in Exhibit A hereto.
9. Investor Services.
9.1 Services. Over a period of two years from the date hereof, the
Investor shall expend an aggregate of $840.000 for (a) market research on behalf
of and for the direct benefit of the Company and (b) related services as part of
its overall ongoing efforts to advance the utilization of distributed power
generation technologies, including natural gas fueled residential sized PEM fuel
cell systems.
9.2 Consequences of Non-Performance. By April 7, 2001, the Investor
shall have delivered to the Company a certificate, sworn to and executed by a
duly authorized officer of the Investor, representing that the services set
forth in Section 9.1 herein have been rendered. If such services have not been
rendered, the Investor shall have an additional 12-month period to either (a)
expend an additional amount of money so that the Investor has spent an aggregate
of $840,000 for the services it was to provide pursuant to Section 9.1; (b) pay
cash to the Company in an amount equal to the difference between $840,000 and
the amount the Investor incurred for services already rendered; or (c) return
the appropriate number of Shares to the Company so that the total number of
Shares actually retained by the Investor will equal $7.51 per Share, based on
$6.67 million purchase price paid plus the value of the services rendered for
the Investor Interest on the date hereof.
10. Miscellaneous.
10.1 Amendment. This Agreement may be amended, supplemented or
modified only by a written instrument duly executed by or on behalf of each
party hereto.
10.2 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
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Investor may specify by written notice to the Company:
Southern California Gas Company
000 Xxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx
With a copy to:
SEMPRA Energy
000 Xxx Xxxxxx,
00xx Xxxxx
Xxx Xxxxx., XX 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
(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 & Bocklus 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.
10.3 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 two years.
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10.4 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.
10.5 Construction: Headings. Each Schedule to this Agreement is
incorporated herein by this reference. 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.
10.6 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. Such choice of law shall have no bearing upon determination of the
proper venue or jurisdiction for resolution of any dispute hereunder.
10.7 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.
10.8 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.
10.9 No Assignment. Neither this Agreement nor any right, interest or
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.
10.10 Counterparts. This Agreement maybe 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
SOUTHERN CALIFORNIA GAS COMPANY
By:_____________________________
Name:
Title:
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SCHEDULE 1 TO THE LLC INTEREST PURCHASE AGREEMENT
This Schedule 1 to that certain LLC Interest Purchase Agreement (the
"Agreement"), dated as of April 7, 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 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,
1998, November 30, 1998 and the minutes of the Special Meeting dated January 29.
1999, attached hereto as Schedule 3(c).
"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
MT1 10,000,000
GE 2,250,000
Cudahy 1,440,000
Lindsay 60,000
Antaeus 299,850
Total outstanding: 24,049,850
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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
MTI 3,000,000 $ 7.50 $22,500,000
EDC 3,000,000 $ 7.50 $22,500,000
GE 3,000,000 $12.50 $37,500,000
Total/Avg: 9,000,000 $ 7.53 $82,500,000
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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EXHIBIT 5.10
Applicant's Name: Plug Power, L.L.C.
Applicant's Address: 000 Xxxxxx-Xxxxxx Xxxx Xxxxxx, Xxx Xxxx 00000
Goods: Fuel cell systems, namely, fuel cell stacks, fuel processors, reformers,
power controllers, power inverters, power Conditioners and energy storage
devices, namely, barteries.
Plug Power
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EXHIBIT A TO THE LLC INTEREST PURCHASE AGREEMENT
AMENDMENT TO THE LIMITED LIABILITY COMPANY
AGREEMENT OF PLUG POWER, L.L.C.
April 12.1999
A. Section 4.3 shall be amended and restated in its entirety, as follows:
4.3 Additional Capital Financing.
(a) In the event a majority of the Management Committee determines
that the Company needs additional financing, the Management Committee shall
determine the structure and the pricing of the debt/equity offering necessary to
raise such additional financing. If the Management Committee cannot agree on the
structure and pricing of such financin2, such determination shall be made by a
reputable, nationally recognized investment banking form, experienced in
structuring and pricing debt and/or equity offerings in similar industries,
selected by the Management Committee.
(b) Sale to a Non-Member. If equity and/or debt financing is
determined to be necessary pursuant to (a) above and the Company sells
additional Shares of Class A Membership Interests ("New Securities") to a non-
Member ("Purchasing Non-Member"), the Company will offer to sell to each Class A
Member additional Shares of Class A Membership Interests ("Additional
Securities"). The number of Additional Securities each Class A Member may
purchase is calculated as follows: the product of the New Securities multiplied
by the percentage of Shares of Class A Membership Interests held by such Class A
Member prior to the sale of the New Securities. The Class A Members shall be
entitled to purchase such Additional Securities at the same price as such New
Securities are sold to the Purchasing Non-Member. The rights granted to the
Class A Members pursuant to this paragraph shall be referred to as "Dilution
Mitigation Rights."
(1) Following the sale of the New Securities, the Company shall
give the Class A Members written notice of such sale, describing the type of New
Securities and the price upon which the Company sold such securities. Each Class
A Member shall have twenty (20) days after receipt of written notice ("Offering
Period") to decide whether or not to purchase, and, in the event the Class A
Member decides to purchase, then it must complete the purchase of the Additional
Securities within the 20 day period, for the price and upon the terms specified
in the notice by giving, written notice to the Company and stating therein the
quantity of Additional Securities to be purchased. In no event shall the
Purchasing Non-Member be entitled to purchase Additional Securities during the
Offering Period.
(2) The rights granted pursuant to this Section 4.3(b) shall not
apply to the granting of New Securities (a) in connection with any transaction
the predominate
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purpose of which is to acquire all or part of a Person or any of its business or
assets, whether structured as an asset purchase or a purchase of stock or other
equity (b) in exchange for services rendered in connection with any debt and/or
equity financim, pursuant to this Section 4.33 (c) upon exercise of warrants or
options exercisability into Shares of Class A Membership Interests or (d) in
relationship to a Public offering of shares.
(3) No Class A Member shall have the right to purchase Additional
Securities not purchased by another Class A Member pursuant to this Section
4(b).
(c) Sale to a Non-Member. If equity and,/or debt financing is
determined to be necessary pursuant to (a) above and the Company sells
additional Shares of Class A Membership Interests ("New Securities") to a Class
A Member(s) ("Purchasing Member(s)"), each other Class A Member shall be
entitled to purchase a sufficient number of Shares of Class A Membership
Interest so that each Class A Member maintains the same proportionate ownership
interest in the Company it had prior to the sale of the New Securities
("Additional Securities"). If one or more Class A Members elect not to exercise
their right to purchase all or a portion of the Additional Securities, the
proportionate ownership interest in the Company of all the Class A Members shall
be adjusted to reflect each such Member's proportionate interest following the
sale of New Securities to the Purchasing, Member. The rights granted to the
Class A Members pursuant to this paragraph shall be referred to as "Anti-
Dilution Rights."
(1) Following the sale of the New Securities, the Company shall
give the Class A Members written notice of such sale, describing the type of New
Securities and the price upon which the Company sold such secunities. Each Class
A Member shall have twenty (20) days after receipt of written notice to decide
whether or not to purchase, and, in the event the Class A Member decides to
purchase, then it must complete the purchase of the Additional Securities within
the 20 day period, for the price and upon the terms specified in the notice by
giving written notice to the Company and stating therein the quantity of
Additional Securities to be purchased.
(2) The rights granted pursuant to this Section 4.3(c) shall not
apply to the granting of New Securities upon exercise of warrants or options
exercisable into Shares of Class A Membership Interests.
(3) No Class A Member shall have the right to purchase Additional
Securities not purchased by another Class A Member pursuant to this Section
4.3(c).
B. All other provisions of the Agreement, as amended, shall remain in
full force and effect.
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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 confirins 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 (1)
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 (iii) 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.
[Name]
Signature
Address
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