UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
PLUG POWER INC.
(Exact name of registrant as specified in charter)
Delaware
22-3672377
(State of incorporation (I.R.S. Employer
of organization) Identification No.)
968 Albany-Shaker Road
Latham, New York
12110
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each
to be so registered
class is to be registered
Preferred Stock Purchase Rights The NASDAQ Stock Market LLC
If this form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box.
x
If this form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box.
Securities Act registration statement file number to which this form relates:
Not applicable.
Securities to be registered pursuant to Section 12(g) of the Act: None.
Item 1.
Description of Registrant's Securities to be
Registered.
On June 22, 2009, the Board of Directors of Plug Power Inc.
(the "Company") adopted a shareholder rights plan, as set forth in the
Shareholder Rights Agreement, dated June 23, 2009, between the Company and
American Stock Transfer & Trust Company, LLC, as Rights Agent (the "Rights
Agreement"). The following description of the terms of the Rights Agreement does
not purport to be complete and is qualified in its entirety by reference to the
Rights Agreement, which is attached hereto as an exhibit and is incorporated
herein by reference.
Rights Dividend
Pursuant to the terms of the Rights Agreement, the Board of
Directors declared a dividend distribution of one Preferred Stock Purchase Right
(a "Right") for each outstanding share of common stock, par value $0.01 per
share, of the Company (the "Common Stock") to stockholders of record as of the
close of business on June 23, 2009 (the "Record Date"). In addition, one Right
will automatically attach to each share of Common Stock issued between the
Record Date and the Distribution Date (as hereinafter defined). Each Right
entitles the registered holder thereof to purchase from the Company a unit
consisting of one ten-thousandth of a share (a "Unit") of Series A Junior
Participating Cumulative Preferred Stock, par value $0.01 per share, of the
Company (the "Preferred Stock") at a cash exercise price of $6.50 per Unit (the
"Exercise Price"), subject to adjustment, under certain conditions specified in
the Rights Agreement and summarized below.
Distribution Date
Initially, the Rights are not exercisable and are attached to
and trade with all shares of Common Stock outstanding as of, and issued
subsequent to, the Record Date. The Rights will separate from the Common Stock
and will become exercisable upon the earlier of (i) the close of business on the
tenth calendar day following the first public announcement that a person or
group of affiliated or associated persons (an "Acquiring Person") has acquired
beneficial ownership of 15% or more of the outstanding shares of Common Stock,
other than as a result of repurchases of stock by the Company or certain
inadvertent actions by a stockholder (the date of said announcement being
referred to as the "Stock Acquisition Date"), or (ii) the close of business on
the tenth business day (or such later day as the Board of Directors may
determine) following the commencement of a tender offer or exchange offer that
could result upon its consummation in a person or group becoming the beneficial
owner of 15% or more of the outstanding shares of Common Stock (the earlier of
such dates being herein referred to as the "Distribution Date").
Notwithstanding the foregoing, with respect to any person who
beneficially owns (for purposes of the Rights Agreement) 15% or more of the
outstanding shares of Common Stock as of June 23, 2009 (such person being
referred to in the Rights Agreement as a "Grandfathered Person"), such
Grandfathered Person's share ownership will not cause the Rights to be
exercisable unless (i) such Grandfathered Person acquires beneficial ownership
of shares of Common Stock representing more than an additional 1/2% of the
outstanding shares of Common Stock held by such Grandfathered Person as of June
23, 2009 or (ii) if after June 23, 2009 such Grandfathered Person reduces its
beneficial ownership of shares of Common Stock and such Grandfather Person
subsequently acquires beneficial ownership of more than an additional 1/2% of
the Common Stock (provided that a Grandfathered Person will cease to be a
Grandfathered Person under the Rights Agreement if that person no longer
beneficially owns 15% or more of the outstanding shares of Common Stock).
Until the Distribution Date (or earlier redemption, exchange or
expiration of the Rights), (i) the Rights will be evidenced by the Common Stock
certificates and will be transferred with and only with such Common Stock
certificates, (ii) new Common Stock certificates issued after the Record Date
will contain a notation incorporating the Rights Agreement by reference, and
(iii) the surrender for transfer of any certificates for Common Stock will also
constitute the transfer of the Rights associated with the Common Stock
represented by such certificate.
As soon as practicable after the Distribution Date, one or more
certificates evidencing one Right for each share of Common Stock of the Company
so held, subject to adjustment as provided herein (the "Right Certificates")
will be mailed to holders of record of Common Stock as of the close of business
on the Distribution Date and, thereafter, the separate Right Certificates alone
will represent the Rights. Except as otherwise determined by the Board of
Directors, only shares of Common Stock issued prior to the Distribution Date
will be issued with Rights.
Subscription and Merger Rights
In the event that a Stock Acquisition Date occurs, proper
provision will be made so that each holder of a Right (other than an Acquiring
Person or its associates or affiliates, whose Rights shall become null and void)
will thereafter have the right to receive upon exercise, in lieu of a number of
Units of Preferred Stock, that number of shares of Common Stock of the Company
(or, in certain circumstances, including if there are insufficient shares of
Common Stock to permit the exercise in full of the Rights, Units of Preferred
Stock, other securities, cash or property, or any combination of the foregoing)
having a market value of two times the Exercise Price of the Right (such right
being referred to as the "Subscription Right"). In the event that, at any time
following the Stock Acquisition Date, (i) the Company consolidates with, or
merges with and into, any other person, and the Company is not the continuing or
surviving corporation, (ii) any person consolidates with the Company, or merges
with and into the Company and the Company is the continuing or surviving
corporation of such merger and, in connection with such merger, all or part of
the shares of Common Stock are changed into or exchanged for stock or other
securities of any other person or cash or any other property, or (iii) 50% or
more of the Company's assets or earning power is sold, mortgaged or otherwise
transferred, each holder of a Right (other than an Acquiring Person or its
associates or affiliates, whose Rights shall become null and void) will
thereafter have the right to receive, upon exercise, common stock of the
acquiring company having a market value equal to two times the Exercise Price of
the Right (such right being referred to as the "Merger Right"). The holder of a
Right will continue to have the Merger Right whether or not such holder has
exercised the Subscription Right. Rights that are or were beneficially owned by
an Acquiring Person may (under certain circumstances specified in the Rights
Agreement) become null and void.
Until a Right is exercised, the holder will have no rights as a
stockholder of the Company (beyond those as an existing stockholder), including
the right to vote or to receive dividends. While the distribution of the Rights
will not be taxable to stockholders or to the Company, stockholders may,
depending upon the circumstances, recognize taxable income in the event that the
Rights become exercisable for Units, other securities of the Company, other
consideration or for common stock of an acquiring company.
Exchange Feature
At any time after a person becomes an Acquiring Person, the
Board of Directors may, at its option, exchange all or any part of the then
outstanding and exercisable Rights for shares of Common Stock or Units at an
exchange ratio specified in the Rights Agreement. Notwithstanding the foregoing,
the Board of Directors generally will not be empowered to effect such exchange
at any time after any person becomes the beneficial owner of 50% or more of the
Common Stock of the Company.
Adjustments
The Exercise Price payable, and the number of Units or other
securities or property issuable, upon exercise of the Rights are subject to
adjustment from time to time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or reclassification of, the Preferred
Stock, (ii) if holders of the Preferred Stock are granted certain rights or
warrants to subscribe for Preferred Stock or convertible securities at less than
the current market price of the Preferred Stock, or (iii) upon the distribution
to holders of the Preferred Stock of evidences of indebtedness or assets
(excluding regular quarterly cash dividends) or of subscription rights or
warrants (other than those referred to above).
With certain exceptions, no adjustment in the Exercise Price
will be required until cumulative adjustments amount to at least 1% of the
Exercise Price. The Company is not obligated to issue fractional Units. If the
Company elects not to issue fractional Units, in lieu thereof an adjustment in
cash will be made based on the fair market value of the Preferred Stock on the
last trading date prior to the date of exercise.
Redemption
The Rights may be redeemed in whole, but not in part, at a
price of $0.001 per Right (payable in cash, Common Stock or other consideration
deemed appropriate by the Board of Directors) by the Board of Directors only
until the earlier of (i) the time at which any person becomes an Acquiring
Person or (ii) the expiration date of the Rights Agreement. Immediately upon the
action of the Board of Directors ordering redemption of the Rights, the Rights
will terminate and thereafter the only right of the holders of Rights will be to
receive the redemption price.
Amendment
The Rights Agreement may be amended by the Board of Directors
in its sole discretion at any time prior to the time at which any person becomes
an Acquiring Person. After such time the Board of Directors may, subject to
certain limitations set forth in the Rights Agreement, amend the Rights
Agreement only to cure any ambiguity, defect or inconsistency, to shorten or
lengthen any time period, or to make changes that do not adversely affect the
interests of Rights holders (excluding the interests of an Acquiring Person or
its associates or affiliates). In addition, the Board of Directors may at any
time prior to the time at which any person becomes an Acquiring Person, amend
the Rights Agreement to lower the threshold at which a person becomes an
Acquiring Person to not less than the greater of (i) the sum of 0.001% and the
largest percentage of the outstanding Common Stock then owned by any person and
(ii) 10%.
Expiration Date
The Rights are not exercisable until the Distribution Date and
will expire at the close of business on June 23, 2019 (the "Expiration Date"),
unless previously redeemed or exchanged by the Company.
Miscellaneous
The Rights Agreement also contains a "TIDE" provision, which
requires an independent committee of the Board of Directors of the Company to
review at least once every three years whether maintaining the Rights Agreement
continues to be in the best interests of the Company's stockholders.
The certificate of designations establishing the Preferred
Stock and the form of Right Certificate are attached as Exhibits A and B,
respectively, to the Rights Agreement (which is included as an exhibit to this
Form 8-A). The foregoing description of the Rights does not purport to be
complete and is qualified in its entirety by reference to the Rights Agreement,
which is incorporated herein by reference.
Item 2. Exhibits.
3.1 Certificate of Designations, Preferences and Rights of a
Series of Preferred Stock of Plug Power Inc. classifying and designating the
Series A Junior Participating Cumulative Preferred Stock.
4.1 Shareholder Rights Agreement, dated as of June 23, 2009,
between Plug Power Inc. and Registrar and American Stock Transfer & Trust
Company, LLC, as Rights Agent.
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the registrant has duly caused this
registration statement to be signed on its behalf by the undersigned, thereto
duly authorized.
PLUG POWER INC.
Date: June 24, 2009 By:
/s/ Gerard L. Conway, Jr._____
Name: Gerard L. Conway, Jr.
Title: General Counsel
EXHIBIT INDEX
Exhibit No.
Description
3.1 Certificate of Designations, Preferences and Rights of a
Series of Preferred Stock of Plug Power Inc. classifying and designating the
Series A Junior Participating Cumulative Preferred Stock.
4.1 Shareholder Rights Agreement, dated as of June 23, 2009,
between Plug Power Inc. and American Stock Transfer & Trust Company, LLC.
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