SUMMARY
This summary highlights selected information contained
elsewhere or incorporated by reference in this prospectus supplement and the
accompanying prospectus. This summary may not contain all the information that
you should consider before investing in our securities. You should read the
entire prospectus supplement and the accompanying prospectus carefully,
including Risk Factors contained in this prospectus supplement, the
accompanying prospectus and the documents incorporated by reference herein and
therein and the financial statements incorporated by reference in this
prospectus supplement and the accompanying prospectus, before making an
investment decision. This prospectus supplement may add to, update or change
information in the accompanying prospectus.
Overview
We are a leading provider of alternative energy technology
focused on the design, development, commercialization and manufacture of fuel
cell systems for the industrial off-road (forklift or material handling)
market.
Effective April 1, 2010, we were no longer considered a
development stage enterprise since our principal operations began to provide
more than insignificant revenues as we received orders from repeat customers,
increased our customer base and had a significant backlog. Prior to April 1,
2010, we were considered a development stage enterprise because substantially
all of our resources and efforts were aimed at the discovery of new knowledge
that could lead to significant improvement in fuel cell reliability and
durability, and the establishment, expansion and stability of markets for our
products.
We are focused on proton exchange membrane, or PEM, fuel
cell and fuel processing technologies and fuel cell/battery hybrid
technologies, from which multiple products are available. A fuel cell is an
electrochemical device that combines hydrogen and oxygen to produce electricity
and heat without combustion. Hydrogen is derived from hydrocarbon fuels such as
liquid petroleum gas (LPG), natural gas, propane, methanol, ethanol, gasoline
or biofuels. Hydrogen can also be obtained from the electrolysis of water.
Hydrogen can be purchased directly from industrial gas providers or can be
produced on-site at consumer locations.
We concentrate our efforts on developing, manufacturing
and selling our hydrogen-fueled PEM GenDrive® products on commercial terms for
industrial off-road (forklift or material handling) applications, with a focus
on multi-shift high volume manufacturing and high throughput distribution
sites.
We have previously invested in development and sales
activities for low-temperature remote-prime power GenSys® products and our
GenCore® product, which is a hydrogen fueled PEM fuel cell system to provide
back-up power for critical infrastructure. While we will continue to service
and support GenSys and/or GenCore products on a limited basis, our main focus
is our Gendrive product line.
We sell our products worldwide, with a primary focus on
North America, through our direct product sales force, original equipment
manufacturers (OEMs) and their dealer networks. We sell to business, industrial
and government customers.
We were organized in the State of Delaware on June 17,
1997. We were originally a joint venture between Edison Development
Corporation and Mechanical Technology Incorporated. In 2007, we acquired all
the issued and outstanding equity of Cellex Power Products, Inc. (Cellex) and
General Hydrogen Corporation (General Hydrogen). Through these acquisitions,
and our continued GenDrive product development efforts, we became the first
fuel cell company to offer a complete suite of Class 1 - sit-down
counterbalance trucks, Class 2 stand-up reach trucks and Class 3 rider
pallet trucks products.
Our principal executive offices are located at 968
Albany-Shaker Road, Latham, New York, 12110, and our telephone number is (518)
782-7700. Our corporate website address is www.plugpower.com. The information
contained on, or accessible through, our website is not part of this prospectus
supplement or the accompanying prospectus.
S-2
Financial Update
Our net loss for the year ended December
31, 2011 was $27.5 million, with total revenue for the year ended December 31,
2011 of $27.6 million.
Net cash used in operating
activities for the year ended December 31, 2011 was $33.3 million.
On December 31, 2011, we had cash
and cash equivalents of $13.9 million and net working capital of $19.4
million. This compares to $21.4 million and $23.7 million, respectively, at
December 31, 2010.
For the full year ended December 31, 2011, we received a total of
$46.1 million in orders from material handling customers; $18.1 million of
those orders were received during the fourth quarter. We received 2,503 GenDrive unit orders in 2011, compared to 543 GenDrive unit
orders in 2010. The Company currently has more than 2,000 GenDrive fuel cell
units deployed at live customer sites.
We entered 2012 with a backlog of more than
1,900 GenDrive units representing approximately $36.0 million in revenue.
Shareholder Rights Agreement
We may amend our Shareholder Rights Agreement, dated as of June 23,
2009, to exempt any person or entity purchasing Common Stock in this
Offering who becomes the beneficial owner of 15% or more of our outstanding
Common Stock as a result of their participation in the offering. As a result,
such ownership by any such purchaser will not trigger the exercisability of the
preferred share purchase rights that would give each holder the right to
receive upon exercise one ten-thousandth of a share of our Series A Junior
Participating Cumulative Preferred Stock. Any such holder who owns
15% or more of our outstanding Common Stock would have the ability to
significantly influence or control certain matters requiring approval by
our stockholders, including the approval of mergers or other extraordinary
transactions. Such holder's interests may differ from the interests of
the Company and our other stockholders, and may vote in a way which may be
adverse to the interests of the Company and our other stockholders.
This concentration of ownership may have the effect of delaying, preventing or
deterring key transactions such as a change of control of our Company, could
deprive our stockholders of an opportunity to receive a premium for their
common stock as part of a sale of our Company and might ultimately affect the
market price of our common stock. For additional information, see
"Description of Capital Stock Shareholder Rights Agreement."
S-3
THE
OFFERING
Common
stock offered by us
|
shares
|
Common
stock outstanding following the offering
|
shares
|
Over-allotment
option
|
shares
|
Use of
proceeds
|
We
intend to use the net proceeds from this offering for general corporate
purposes, which may include working capital, capital expenditures, research
and development expenditures, commercial expenditures, acquisitions of new
technologies or businesses that are complementary to our current technologies
or business focus, and investments.
|
NASDAQ
Capital Market Symbol
|
PLUG
|
Risk factors
|
Investing in our securities involves risks. See Risk
Factors beginning on page S-5 of this
prospectus supplement and other information included or incorporated into
this prospectus supplement and the accompanying prospectus for a discussion
of the factors you should carefully consider before deciding to invest in our
securities.
|
The number of shares of our common stock to be outstanding
after the offering is based on 22,817,541shares of common stock outstanding as of March
21, 2012 and excludes:
-
1,948,374 shares of
common stock issuable upon the exercise of stock options outstanding as of March
21, 2012;
-
280,771 shares of
common stock issuable upon the exercise of unvested restricted stock awards
outstanding as of March 21, 2012; and
-
7,128,563 shares of common stock issuable upon the exercise of
warrants outstanding as of March 21, 2012, which number of shares will increase
as a result of the offering due to anti-dilution provisions contained in such
warrants.
Except as otherwise indicated,
all information in this prospectus supplement assumes no exercise by the
underwriter of its over-allotment option.
S-4
RISK
FACTORS
Investing in our securities involves a high degree of
risk. You should carefully consider the risks and all other information
contained in this prospectus supplement and the accompanying prospectus,
including the risk factors in the section entitled Risk Factors in the
accompanying prospectus and in the documents incorporated by reference herein
and therein. You should also refer to the other information in this prospectus
supplement and the accompanying prospectus, including our financial statements
and the related notes incorporated by reference in this prospectus supplement
and the accompanying prospectus.
Risks Related to Our Business
We have incurred losses,
anticipate continuing to incur losses and might never achieve or maintain
profitability.
We have not
achieved profitability in any quarter since our formation and we will continue
to incur net losses until we can produce sufficient revenue to cover our costs.
Our net losses were approximately $60.6 million in 2007, $121.7 million in
2008, $40.7 million in 2009, $47.0 million in 2010 and $27.5 million in 2011.
As of December 31, 2011, we had an accumulated deficit of $754.8 million. We
anticipate that we will continue to incur losses until we can produce and sell
our products on a large-scale and cost-effective basis. Substantially all of
our losses resulted from costs incurred in connection with our manufacturing
operations, research and development expenses and from general and
administrative costs associated with our operations. We cannot guarantee when
we will operate profitably, if ever. In order to achieve profitability, among
other factors,(i) management must successfully execute our planned path to
profitability in the early adoption markets on which we are focused, (ii) the
hydrogen infrastructure that is needed to support our growth readiness and cost
efficiency must be available and cost efficient, (iii) we must continue to
shorten the cycles in our product roadmap with respect to: (A) product
reliability and performance that our customers expect and (B) successful
introduction of our products into the market, (iv) we must accurately evaluate
our markets for, and react to, competitive threats in both other technologies
(such as advanced batteries) and our technology field, and (v) we must continue
to lower our products build costs and lifetime service costs. If we are
unable to successfully take these steps, we may never operate profitably, and,
even if we do achieve profitability, we may be unable to sustain or increase
our profitability in the future.
We expect we will need to
raise additional capital to fund our operations and such capital may not be
available to us, in which case we may need to reduce and/or cease our
operations.
Since
inception, we have funded our operations primarily through private and public
offerings of our common and preferred stock, borrowings under our line of
credit and maturities and sales of our available-for-sale securities. To fully
execute our future business plans, we expect we will need to raise additional
funds through equity or debt financings, strategic alliances or otherwise. Our
future liquidity and capital requirements will depend upon numerous factors,
including the following: the timing and quantity of product orders and
shipments; the timing and amount of our operating expenses; the timing and
costs of working capital needs; the timing and costs of building a sales base;
the timing and costs of developing marketing and distribution channels; the
timing and costs of product service requirements; the timing and costs of
hiring and training product staff; the extent to which our products gain
market acceptance; the timing and costs of product development and
introductions; the extent of our ongoing and any new research and development
programs; and changes in our strategy or our planned activities. If we are
unable to obtain additional capital, we may not be able to sustain our future
operations and may be required to delay, reduce and/or cease our operations
and/or seek bankruptcy protection. If we raise additional funds through the
issuance of equity or convertible debt securities, the percentage ownership of
our stockholders could be significantly diluted, and these newly issued
securities may have rights, preferences or privileges senior to those of
existing stockholders. If we incur additional debt, a substantial portion of
our operating cash flow may be dedicated to the payment of principal and
interest on such indebtedness, thus limiting funds available for our business
activities. The terms of any debt could also impose significant restrictions on
our operations. We cannot assure you that any necessary additional financing will
be available on terms favorable to us, or at all. Given the current economic
environment, we believe that it could be difficult to raise additional funds
and there can be no assurance as to the availability of additional financing or
the terms upon which additional financing may be available. In recent years and
months, the stock market in general, and the NASDAQ Capital Market and the
market for smaller capitalized companies in particular, have experienced
significant price and volume fluctuations that may have been unrelated or
disproportionate to the operating performance of the listed companies. Broad
market and industry factors may seriously harm the market price of our common
stock, regardless of our operating performance, and may adversely impact our
ability to raise additional funds. If we raise additional funds through
collaborations and/or licensing arrangements, we might be required to
relinquish significant rights to our technologies, or grant licenses on terms
that are not favorable to us. If adequate funds are not available, we may be
required to reduce, delay and/or cease our operations and/or seek bankruptcy
protection. Additionally, even if we raise sufficient capital through equity or
debt financing, strategic alliances or otherwise, there can be no assurances
that the revenue or capital infusion will be sufficient to enable us to develop
our business to a level where it will be profitable or generate positive cash
flow.
S-5
We do not have extensive
experience in manufacturing and marketing our products and, as a result, may be
unable to sustain a profitable commercial market for our new and existing
products.
From 1997 to
2008, we have focused primarily on research and development of fuel cell
systems. In the latter half of 2008, we shifted our focus to viable
commercialization of our fuel cell products. While we have been manufacturing
our products in small quantities for several years, we do not have extensive
experience in mass-manufacturing and marketing our products. We do not know whether
or when we will be able to develop efficient, low-cost manufacturing
capabilities and processes that will enable us to manufacture our products in
commercial quantities while meeting the quality, price, engineering, design,
and production standards required to profitably market our products. Even if we
are successful in developing our manufacturing capabilities and processes, we
do not know whether we will do so in time to meet our product commercialization
schedule or to satisfy the requirements of our distributors or customers.
Before investing in our common stock, you should consider the challenges,
expenses and difficulties that we will face as an emerging technology company
seeking to sustain a viable commercial market for our new and existing products.
If we are unable to sustain a viable commercial market for our products, that
failure would have a material adverse effect on our business, prospects,
financial condition and results of operations.
Our purchase orders may
not ship, be commissioned or installed, or convert to revenue, in whole or in
part; and our pending orders may not convert to purchase orders, in whole or in
part, which may have a material adverse effect on our revenue and cash flow.
Some of the
orders we accept from customers require certain conditions or contingencies to
be satisfied prior to shipment or prior to commissioning or installation, some
of which are outside of our control. Historically, shipments made against these
orders have generally occurred between ninety (90) days and twenty-four (24)
months from the date of acceptance of the order. Orders received during the
year ended December 31, 2011 totaled 2,503 units. Backlog on December 31, 2011
was 1,969 units. Of the unit orders in backlog on December 31, 2011, orders for
109 units were older than 12 months. The time periods from receipt of an order
to shipment date and installation vary widely and are determined by a number of
factors, including the terms of the customer contract and the customers
deployment plan. There may also be product redesign or modification
requirements that must be satisfied prior to shipment of units under certain of
our agreements. If the redesigns or modifications are not completed, some or
all of our orders may not ship or convert to revenue. We also have publicly
discussed anticipated, pending orders with prospective customers; however,
those prospective customers may require certain conditions or contingencies to
be satisfied prior to issuing a purchase order to us, some of which are outside
of our control. Such conditions or contingencies that may be required to be
satisfied before we receive a purchase order may include, but are not limited
to, successful product demonstrations or field trials. Some conditions or
contingencies that are out of our control may include, but are not limited to,
government tax policy, government funding programs, and government incentive
programs. Additionally, some conditions and contingencies may extend for
several years. We may have to compensate customers, by either reimbursement,
forfeiting portions of associated revenue, or other methods depending on the
terms of the customer contract, based on the failure on any of these conditions
or contingencies. This could have an adverse impact on our revenue and cash
flow.
Our GenDrive product
depend on the availability of hydrogen and our lack of control over or limited
availability of such fuel may adversely impact our sales and product
deployment.
Our products
depend largely on the availability of natural gas and hydrogen gas. We are
dependant upon hydrogen suppliers for success with the profitable
commercialization of our GenDrive product. Although we will continue to work
with hydrogen suppliers to mutually agree on terms for our customers,
including, but not limited to, price of the hydrogen molecules, liquid
hydrogen, hydrogen infrastructure and service costs, to the benefit of our
GenDrive product value proposition, ultimately we have no control over such
third parties. If these fuels are not readily available or if their prices are
such that energy produced by our products costs more than energy provided by
other sources, then our products could be less attractive to potential users
and our products value proposition could be negatively affected. If hydrogen
suppliers elect not to participate in the material handling market, there may
be an insufficient supply of hydrogen for this market that could negatively
affect our sales and deployment of our GenDrive product.
S-6
Unless we lower the cost
of our GenDrive products and demonstrate their reliability, our product sales
could be adversely affected.
The initial
capital cost of our GenDrive products is currently higher than many established
competing technologies. If we are unable to successfully complete the development
of GenDrive or any future products we develop that are competitive with
competing technologies in terms of price, reliability and longevity, customers
will be unlikely to buy our products. The profitability of our products depends
largely on material and manufacturing costs. We cannot guarantee that we will
be able to lower these costs to the level where we will be able to produce a
competitive product or that any product produced using lower cost materials and
manufacturing processes will not suffer from a reduction in performance,
reliability and longevity.
Our GenDrive products
face intense competition and we may be unable to compete successfully.
The markets
for energy products are intensely competitive. Some of our competitors in the
fuel cell sector and in incumbent technologies are much larger than we are and
may have the manufacturing, marketing and sales capabilities to complete
research, development and commercialization of profitable, commercially viable
products more quickly and effectively than we can. There are many companies
engaged in all areas of traditional and alternative energy generation in the
United States, Canada and abroad, including, among others, major electric, oil,
chemical, natural gas, battery, generator and specialized electronics firms, as
well as universities, research institutions and foreign government-sponsored
companies. These firms are engaged in forms of power generation such as solar
and wind power, reciprocating engines and micro turbines, advanced battery technologies,
generator sets, fast charged technologies and other types of fuel cell
technologies. Many of these entities have substantially greater financial,
research and development, manufacturing and marketing resources than we do.
Technological advances in alternative energy products, battery systems or other
fuel cell technologies may make our products less attractive or render them
obsolete.
We depend on only a few
customers for the majority of our revenues and the loss of any one or more of
these customers, or a significant loss, reduction or rescheduling of orders
from any of these customers, would have a material adverse effect on our
business, financial condition and results of operations.
We sell
most of our products to a small number of customers, and while we are
continually seeking to expand our customer base, we expect this will continue
for the next several years. As of December 31, 2011, five of our customers
comprised approximately 83.0% of the total accounts receivable balance, with
each customer individually representing 27.0%, 17.3%, 16.4%, 12.1% and 10.2% of
that amount. For the year ended December 31, 2011, contracts with three
customers comprise approximately 39.0% of total consolidated revenues, with
each customer individually representing 14.5%, 14.0% and 10.5%, of total
consolidated revenues, respectively. Any decline in business with these small
numbers of customers could have an adverse impact on our business, financial
condition and results of operations. Our future success is dependent upon the
continued purchases of our products by a small number of customers. Any
fluctuations in demand from such customers or other customers may negatively
impact our business, financial condition and results of operations. If we are
unable to broaden our customer base and expand relationships with potential
customers, our business will continue to be impacted by unanticipated demand
fluctuations due to our dependence on a small number of customers.
Unanticipated demand fluctuations can have a negative impact on our revenues
and business, and an adverse effect on our business, financial condition and
results of operations. In addition, our dependence on a small number of major
customers exposes us to numerous other risks, including: (i) a slowdown or delay
in a customers deployment of our products could significantly reduce demand
for our products; (ii) reductions in a single customers forecasts and demand
could result in excess inventories; (iii) the current or future economic
conditions could negatively affect one or more of our major customers and cause
them to significantly reduce operations, or file for bankruptcy; (iv)
consolidation of customers can reduce demand as well as increase pricing
pressure on our products due to increased purchasing leverage; (v) each of our
customers has significant purchasing leverage over us to require changes in
sales terms including pricing, payment terms and product delivery schedules;
and (vi) concentration of accounts receivable credit risk, which could have a material
adverse effect on our liquidity and financial condition if one of our major
customers declared bankruptcy or delayed payment of their receivables.
S-7
Our stock price has been
and could remain volatile, which could adversely affect the price of our stock,
our ability to raise additional capital and/or cause us to be subject to
securities class action litigation.
The market
price of our common stock has historically experienced and may continue to
experience significant volatility. In 2011, the market price of our common
stock fluctuated from a high of $9.00 per share in the first quarter of 2011 to
a low of $1.40 per share in the fourth quarter of 2011. Our progress in
developing and commercializing our products, our quarterly operating results,
announcements of new products by us or our competitors, our perceived
prospects, changes in securities analysts recommendations or earnings
estimates, changes in general conditions in the economy or the financial
markets, adverse events related to our strategic relationships, significant
sales of our common stock by existing stockholders, including one or more of
our strategic partners, and other developments affecting us or our competitors
could cause the market price of our common stock to fluctuate substantially. In
addition, in recent years, the stock market has experienced significant price
and volume fluctuations. This volatility has affected the market prices of
securities issued by many companies for reasons unrelated to their operating
performance and may adversely affect the price of our common stock. Such market
price volatility could adversely affect our ability to raise additional
capital. In addition, we may be subject to additional securities class action
litigation as a result of volatility in the price of our common stock, which
could result in substantial costs and diversion of managements attention and
resources and could harm our stock price, business, prospects, results of
operations and financial condition.
The
loss of one or more of our key supply partners could have a material adverse
effect on our business.
We have
certain key suppliers, such as Ballard and Air Squared, that we rely on for
critical components in our products and there are numerous other components for
our products that are sole sourced. A suppliers failure to develop and supply
components in a timely manner or at all, or to develop or supply components
that meet our quality, quantity or cost requirements, or our inability to
obtain substitute sources of these components on a timely basis or on terms
acceptable to us, could harm our ability to manufacture our products. In
addition, to the extent that our supply partners use technology or
manufacturing processes that are proprietary, we may be unable to obtain
comparable components from alternative sources.
One of our stockholders,
OJSC Third Generation Company of the Wholesale Electricity Market (OGK-3)
has, and any purchasers in this transaction who purchase 15% or more of our
outstanding common stock would have, substantial control over us and could limit our other stockholders ability
to influence the outcome of key transactions, including a change of control.
As of March 21, 2012, OGK-3 owned
approximately 19.6% of the outstanding shares of our common stock. Also,
certain purchasers in this offering may acquire 15% or more of the outstanding
shares of our common stock. As a result, OGK-3 and any such
purchasers would have the ability to significantly influence or
control certain matters requiring approval by our stockholders, including the
approval of mergers or other extraordinary transactions. The interests of OGK-3
and such purchasers may differ from the interest of the Company and its
other stockholders, and OGK-3 and such purchasers may vote in a way which
may be adverse to the interests of the Company and its other stockholders. This
concentration of ownership may have the effect of delaying, preventing or
deterring key transactions such as a change of control of our Company, could
deprive our stockholders of an opportunity to receive a premium for their
common stock as part of a sale of our Company and might ultimately affect the
market price of our common stock.
In addition,
pursuant to the Standstill and Support Agreement, dated as of May 6, 2011,
among us, OGK-3 and OJSC INTER RAO UES, the owner of a majority of the
outstanding equity interests of OGK-3, INTER RAO has the right to nominate two
members to serve on our Board of Directors of the Company. In October 2011, we
increased our board to eight directors and appointed two new directors to serve
on our Board of Directors. These two individuals are affiliates of INTER RAO
UES and were nominated pursuant to the Standstill and Support Agreement.
S-8
The
sale by OGK-3 of a substantial number of shares of the Companys common stock
could cause the market price of our common stock to decline and adversely
affect our ability to remain listed on an exchange and/or raise capital through
equity offerings.
OGK-3 held 4,462,693 shares of common stock as of March
21, 2012, which represents in the
aggregate approximately 19.6% of the Companys outstanding common stock. If
OGK-3 or its affiliates sell substantial amounts of our common stock in the
public market, the market price of our common stock could decrease
significantly.
A robust market for our
GenDrive products may never develop or may take longer to develop than we
anticipate.
We
believe we have identified viable markets for our GenDrive products, however
our products represent emerging technologies, and we do not know the extent to
which our targeted customers will want to purchase them and whether end-users
will want to use them. If a sizable market fails to develop or develops more
slowly than we anticipate, we may be unable to recover the losses we will have
incurred to develop our products and may be unable to achieve profitability.
The development of a sizable market for our products may be impacted by many
factors which are out of our control, including: (i) the cost competitiveness
of our products; (ii) the future costs of natural gas, hydrogen and other fuels
expected to be used by our products; (iii) consumer reluctance to try a new
product; (iv) consumer perceptions of our products safety; (v) regulatory
requirements; (vi) barriers to entry created by existing energy providers; and
(vii) the emergence of newer, more competitive technologies and products.
We may be unable to
establish or maintain relationships with third parties for certain aspects of
continued product development, manufacturing, distribution and servicing and
the supply of key components for our products.
We will need
to maintain and may need to enter into additional strategic relationships in
order to complete our current product development and commercialization plans.
We will also require partners to assist in the sale, servicing and supply of
components for our anticipated products, which are in development. If we are
unable to identify or enter into satisfactory agreements with potential
partners, including those relating to the distribution, service and support of
our anticipated products, we may not be able to complete our product
development and commercialization plans on schedule or at all. We may also need
to scale back these plans in the absence of needed partners, which would
adversely affect our future prospects for development and commercialization of
future products. In addition, any arrangement with a strategic partner may
require us to issue a significant amount of equity securities to the partner,
provide the partner with representation on our board of directors and/or commit
significant financial resources to fund our product development efforts in
exchange for their assistance or the contribution to us of intellectual
property. Any such issuance of equity securities would reduce the percentage
ownership of our then current stockholders. While we have entered into
relationships with suppliers of some key components for our products, we do not
know when or whether we will secure supply relationships for all required
components and subsystems for our products, or whether such relationships will
be on terms that will allow us to achieve our objectives. Our business
prospects, results of operations and financial condition could be harmed if we
fail to secure relationships with entities which can develop or supply the
required components for our products and provide the required distribution and
servicing support. Additionally, the agreements governing our current
relationships allow for termination by our partners under certain
circumstances, some of which are beyond our control. If any of our current
strategic partners were to terminate any of its agreements with us, there could
be a material adverse impact on the continued development and profitable
commercialization of our products and the operation of our business, financial condition,
results of operations and prospects.
We face risks associated
with our plans to market, distribute and service our GenDrive products
internationally.
We intend to
market, distribute, sell and service our GenDrive products internationally. We
have limited experience developing and manufacturing our products to comply
with the commercial and legal requirements of international markets. Our
success in international markets will depend, in part, on our ability and that
of our partners to secure relationships with foreign sub-distributors, and our
ability to manufacture products that meet foreign regulatory and commercial
requirements. Additionally, our planned international operations are subject to
other inherent risks, including potential difficulties in enforcing contractual
obligations and intellectual property rights in foreign countries and
fluctuations in currency exchange rates. Also, to the extent our operations and
assets are located in foreign countries, they are potentially subject to nationalization
actions over which we will have no control.
S-9
For example,
we have formed a joint venture company based in France with Axane, S.A. under
the name Hypulsion, to develop and sell hydrogen fuel cell systems for the
European material handling market. However, for the reasons discussed above,
Hypulsion may not be able to accomplish its goals or become profitable.
Delays in our product
development could have a material impact on the profitable commercialization of
our products.
If we
experience delays in meeting our development goals, our products exhibit
technical defects, or if we are unable to meet cost or performance goals,
including power output, useful life and reliability, the profitable
commercialization of our products will be delayed. In this event, potential
purchasers of our products may choose alternative technologies and any delays
could allow potential competitors to gain market advantages. We cannot assure
you that we will successfully meet our commercialization schedule in the future.
We may enter into
contracts for products that have not yet been developed or produced, which may
give such customers the right to terminate their agreements with us.
We may enter
into contracts with our customers for certain products that have not been developed
or produced. There can be no assurance that we will complete the development
of these products and meet the specifications required to fulfill customer
agreements and deliver products on schedule. Pursuant to such agreements, the
customers would have the right to provide notice to us if, in their good faith
judgment, we have materially deviated from such agreements. Should a customer
provide such notice, and we cannot mutually agree to a modification to the
agreement, then the customer may have the right to terminate the agreement,
which could adversely affect our future business.
We may never complete the
research and development of certain commercially viable products, which may
adversely affect our revenue, profitability and result in possible warranty
claims.
Other than
certain products within our GenCore, GenSys and GenDrive product families,
which we believe to be commercially viable at this time, we do not know when or
whether we will successfully complete research and development of other commercially
viable products. If we are unable to develop additional commercially viable
products, we may not be able to generate sufficient revenue to become
profitable. The profitable commercialization of our products depends on our
ability to reduce the costs of our components and subsystems, and we cannot
assure you that we will be able to sufficiently reduce these costs. In
addition, the profitable commercialization of our products requires achievement
and verification of their overall reliability, efficiency and safety targets,
and we cannot assure you that we will be able to develop, acquire or license
the technology necessary to achieve these targets. We must complete additional
research and development to fill out product portfolios and deliver enhanced
functionality and reliability in order to manufacture additional commercially
viable products in commercial quantities. In addition, while we are conducting
tests to predict the overall life of our products, we may not have run our
products over their projected useful life prior to large-scale
commercialization. As a result, we cannot be sure that our products will last
as long as predicted, resulting in possible warranty claims and commercial
failures.
Failure of our prospective customer demonstrations could
negatively impact demand for our products.
We conduct demonstrations with a number of our
prospective customers, and we plan to conduct additional demonstrations for
prospective customers as required in the future. We may encounter problems and
delays during these demonstrations for a number of reasons, including the
failure of our technology or the technology of third parties, as well as our
failure to maintain and service our products properly. Many of these potential
problems and delays are beyond our control. Any problem or perceived problem
with our demonstrations with these prospective customers could materially harm
our reputation and impair market acceptance of, and demand for, our products.
Product liability or
defects could negatively impact our results of operations.
Any liability
for damages resulting from malfunctions or design defects could be substantial
and could materially adversely affect our business, financial condition,
results of operations and prospects. In addition, a well-publicized actual or
perceived problem could adversely affect the markets perception of our
products resulting in a decline in demand for our products and could divert the
attention of our management, which may materially and adversely affect our
business, financial condition, results of operations and prospects.
S-10
Our GenDrive products
face intense competition and we may be unable to compete successfully.
The markets
for energy products are intensely competitive. Some of our competitors in the
fuel cell sector and in incumbent technologies are much larger than we are and
may have the manufacturing, marketing and sales capabilities to complete
research, development and commercialization of profitable, commercially viable
products more quickly and effectively than we can. There are many companies
engaged in all areas of traditional and alternative energy generation in the
United States, Canada and abroad, including, among others, major electric, oil,
chemical, natural gas, battery, generator and specialized electronics firms, as
well as universities, research institutions and foreign government-sponsored
companies. These firms are engaged in forms of power generation such as solar
and wind power, reciprocating engines and micro turbines, advanced battery
technologies, as well as traditional grid-supplied electric power. Many of
these entities have substantially greater financial, research and development,
manufacturing and marketing resources than we do.
The raw materials on
which our products rely may not be readily available or available on a
cost-effective basis.
For example,
platinum is a key material in our PEM fuel cells. Platinum is a scarce natural
resource and we are dependent upon a sufficient supply of this commodity. Any
shortages could adversely affect our ability to produce commercially viable
fuel cell systems and significantly raise our cost of producing our fuel cell
systems.
Our future plans could be
harmed if we are unable to attract or retain key personnel.
We have
attracted a highly skilled management team and specialized workforce, including
scientists, engineers, researchers, manufacturing, marketing and sales
professionals. Our future success will depend, in part, on our ability to
attract and retain qualified management and technical personnel. We do not know
whether we will be successful in hiring or retaining qualified personnel. Our
inability to hire qualified personnel on a timely basis, or the departure of
key employees, could materially and adversely affect our development and
profitable commercialization plans and, therefore, our business prospects,
results of operations and financial condition.
Provisions in our charter
documents and Delaware law may discourage or delay an acquisition that
stockholders may consider favorable, which could decrease the value of our
common stock.
Our
certificate of incorporation, our bylaws, and Delaware corporate law contain
provisions that could make it harder for a third party to acquire us without
the consent of our board of directors. These provisions include those that: (i)
authorize the issuance of up to 5,000,000 shares of preferred stock in one or
more series without a stockholder vote; (ii) limit stockholders ability to
call special meetings; (iii) establish advance notice requirements for
nominations for election to our board of directors or for proposing matters
that can be acted on by stockholders at stockholder meetings; and (iv) provide
for staggered terms for our directors. We have a shareholders rights plan that
may be triggered if a person or group of affiliated or associated persons
acquires beneficial ownership of 15% or more of the outstanding shares of our
common stock. In addition, in certain circumstances, Delaware law also imposes
restrictions on mergers and other business combinations between us and any
holder of 15% or more of our outstanding common stock.
Adverse changes in
general economic conditions in the United States or any of the major countries
in which we do business could adversely affect our operating results.
We are subject
to the risks arising from adverse changes in global economic conditions. For
example, adverse changes in general economic conditions, continuing economic
uncertainties, and the direction and relative strength of the U.S. economy has
become increasingly uncertain. If economic growth in the United States and
other countries slows or recedes, our current or prospective customers may
delay or reduce technology purchases. This could result in reductions in sales
of our products, longer sales cycles, slower adoption of new technologies and
increased price competition, which could materially and adversely affect our
business, results of operations and financial condition.
S-11
Our business may become
subject to future government regulation, which may impact our ability to market
our products and costs and price of our products.
Our products
are subject to certain federal, local, and non-U.S. laws and regulations,
including, for example, state and local ordinances relating to building codes,
public safety, electrical and gas pipeline connections, hydrogen transportation
and siting and related matters. See BusinessGovernment Regulations for
additional information. Further, as products are introduced into the market
commercially, governments may impose new regulations. We do not know the extent
to which any such regulations may impact our ability to distribute, install and
service our products. Any regulation of our products, whether at the federal,
state, local or foreign level, including any regulations relating to installation
and servicing of our products, may increase our costs and the price of our
products.
Our
products use flammable fuels that are inherently dangerous substances.
Our fuel cell
systems use natural gas and hydrogen gas in catalytic reactions. While our
products do not use this fuel in a combustion process, natural gas and hydrogen
gas are flammable fuels that could leak in a home or business and combust if
ignited by another source. Further, while we are not aware of any accidents
involving our products, any such accidents involving our products or other
products using similar flammable fuels could materially suppress demand for, or
heighten regulatory scrutiny of, our products.
We may not be able to
protect important intellectual property and we could incur substantial costs
defending against claims that our products infringe on the proprietary rights
of others.
PEM
fuel
cell technology was first developed in the 1950s, and fuel processing
technology has been practiced on a large scale in the petrochemical industry
for decades. Accordingly, we do not believe that we can establish a significant
proprietary position in the fundamental component technologies in these areas.
However, our ability to compete effectively will depend, in part, on our
ability to protect our proprietary system-level technologies, systems designs
and manufacturing processes. We rely on patents, trademarks, and other policies
and procedures related to confidentiality to protect our intellectual property.
However, some of our intellectual property is not covered by any patent or
patent application. Moreover, we do not know whether any of our pending patent
applications will issue or, in the case of patents issued or to be issued, that
the claims allowed are or will be sufficiently broad to protect our technology
or processes. Even if all of our patent applications are issued and are
sufficiently broad, our patents may be challenged or invalidated. We could
incur substantial costs in prosecuting or defending patent infringement suits
or otherwise protecting our intellectual property rights. While we have
attempted to safeguard and maintain our proprietary rights, we do not know
whether we have been or will be completely successful in doing so. Moreover,
patent applications filed in foreign countries may be subject to laws, rules
and procedures that are substantially different from those of the United
States, and any resulting foreign patents may be difficult and expensive to
enforce. In addition, we do not know whether the U.S. Patent & Trademark
Office will grant federal registrations based on our pending trademark
applications. Even if federal registrations are granted to us, our trademark
rights may be challenged. It is also possible that our competitors or others
will adopt trademarks similar to ours, thus impeding our ability to build brand
identity and possibly leading to customer confusion. We could incur substantial
costs in prosecuting or defending trademark infringement suits.
Further, our
competitors may independently develop or patent technologies or processes that
are substantially equivalent or superior to ours. If we are found to be
infringing third party patents, we could be required to pay substantial
royalties and/or damages, and we do not know whether we will be able to obtain
licenses to use such patents on acceptable terms, if at all. Failure to obtain
needed licenses could delay or prevent the development, manufacture or sale of
our products, and could necessitate the expenditure of significant resources to
develop or acquire non-infringing intellectual property.
Asserting, defending and
maintaining our intellectual property rights could be difficult and costly and
failure to do so may diminish our ability to compete effectively and may harm
our operating results.
We may need to
pursue lawsuits or legal action in the future to enforce our intellectual
property rights, to protect our trade secrets and domain names, and to
determine the validity and scope of the proprietary rights of others. If third
parties prepare and file applications for trademarks used or registered by us,
we may oppose those applications and be required to participate in proceedings
to determine the priority of rights to the trademark. Similarly, competitors
may have filed applications for patents, may have received patents and may
obtain additional patents and proprietary rights relating to products or
technology that block or compete with ours. We may have to participate in
interference proceedings to determine the priority of invention and the right to
a patent for the technology. Litigation and interference proceedings, even if
they are successful, are expensive to pursue and time consuming, and we could
use a substantial amount of our financial resources in either case.
S-12
We rely, in part, on
contractual provisions to protect our trade secrets and proprietary knowledge,
the adequacy of which may not be sufficient.
Confidentiality
agreements to which we are party may be breached, and we may not have adequate
remedies for any breach. Our trade secrets may also be known without breach of
such agreements or may be independently developed by competitors. Our inability
to maintain the proprietary nature of our technology and processes could allow
our competitors to limit or eliminate any competitive advantages we may have.
Our
government contracts could restrict our ability to profitably commercialize our
technology.
Some of our
technology has been developed with state and federal government funding in the
United States, Canada and other countries. The United States and Canadian
governments have a non-exclusive, royalty-free, irrevocable world-wide license
to practice or have practiced some of our technology developed under contracts
funded by the respective government. In some cases, government agencies in the United
States or Canada can require us to obtain or produce components for our systems
from sources located in the United States or Canada, respectively, rather than
foreign countries. Our contracts with government agencies are also subject to
the risk of termination at the convenience of the contracting agency, potential
disclosure of our confidential information to third parties and the exercise of
march-in rights by the government. March-in rights refer to the right of the
United States or Canadian governments or government agency to license to others
any technology developed under contracts funded by the government if the
contractor fails to continue to develop the technology. The implementation of
restrictions on our sourcing of components or the exercise of march-in rights
could harm our business, prospects, results of operations and financial
condition. In addition, under the Freedom of Information Act, any documents
that we have submitted to the government or to a contractor under a government
funding arrangement are subject to public disclosure that could compromise our
intellectual property rights unless such documents are exempted as trade
secrets or as confidential information and treated accordingly by such
government agencies.
Risks
Related to this Offering
Our
management will have broad discretion in the use of the net proceeds we receive
in this offering and might not apply the proceeds in ways that increase the
value of your investment.
Our
management will have broad discretion over the use of our net proceeds from
this offering, and you will be relying on the judgment of our management
regarding the application of these proceeds. Our management might not apply our
net proceeds in ways that ultimately increase the value of your investment and we
might not be able to yield a significant return, if any, on any investment of
these net proceeds. Our failure to apply these funds effectively could have a
material adverse effect on our business, delay the development of our products
and cause the price of our common stock to decline.
There may be future sales
or other dilution of our equity, which may adversely affect the market price of
our common stock.
Except as
described under Underwriting, we are not restricted from issuing additional
shares of our common stock, including any securities that are convertible into
or exchangeable for, or that represent the right to receive, our common stock.
The market price of our common stock could decline as a result of sales of
shares of our common stock or sales of such other securities made after this
offering or the perception that such sales could occur.
The market price of our
common stock may be adversely affected by market conditions affecting the stock
markets in general, including price and trading fluctuations on the NASDAQ
Capital Market.
S-13
Market
conditions may result in volatility in the level of, and fluctuations in, the
market prices of stocks generally and, in turn, our common stock and sales of
substantial amounts of our common stock in the market, in each case being
unrelated or disproportionate to changes in our operating performance. The
overall weakness in the economy has recently contributed to the extreme
volatility of the markets which may have an affect on the market price of our
common stock.
Investors in this offering will experience
immediate and substantial dilution.
The public
offering price of the securities offered pursuant to this prospectus supplement
is substantially higher than the net tangible book value per share of our
common stock. Therefore, if you purchase shares of common stock in this
offering, you will incur immediate and substantial dilution in the pro forma
net tangible book value per share of common stock from the price per share that
you pay for the common stock. If the holders of outstanding options or
warrants exercise those options or warrants at prices below the public offering
price, you will incur further dilution. If the public offering price in this offering
is less than $3.00 per share, the exercise price of our existing 2011 five-year
warrants to purchase shares of our common stock may be adjusted downward in
accordance with the weighted-average anti-dilution provisions of such warrants,
and the number of shares issuable upon exercise of such warrants would increase,
both of
which would result in further dilution to our stockholders. See the
section entitled Dilution below for a more detailed discussion of the
dilution associated with this offering.
We have not paid cash dividends to our shareholders and currently
have no plans to pay future cash dividends.
We plan to retain earnings to finance future growth and have no current
plans to pay cash dividends to shareholders. Because we have not paid cash
dividends, holders of our securities will experience a gain on their investment
in our securities only in the case of an appreciation of value of our
securities. You should neither expect to receive dividend income from investing
in our securities nor an appreciation in value.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus supplement, the accompanying
prospectus, and the documents incorporated by reference herein and therein
contain forward-looking statements regarding our future performance. All
forward-looking information is inherently uncertain and actual results may
differ materially from assumptions, estimates or expectations reflected or
contained in the forward-looking statements as a result of various factors,
including those set forth under Risk Factors in this prospectus supplement
and elsewhere in this prospectus supplement, the accompanying prospectus, and
the documents incorporated by reference herein and therein. In addition, such
Risk Factors may be updated from time to time by our filings under the
Securities Exchange Act of 1934. Forward-looking statements convey our current
expectations or forecasts of future events. All statements contained in this
prospectus supplement and the accompanying prospectus other than statements of
historical fact are forward-looking statements. Forward-looking statements
include statements regarding our future financial position, business strategy,
budgets, projected costs, plans and objectives of management for future
operations. The words may, continue, estimate, intend, plan, will,
believe, project, expect, anticipate and similar expressions may
identify forward-looking statements, but the absence of these words does not
necessarily mean that a statement is not forward-looking. With respect to the
forward-looking statements, we claim the protection of the safe harbor for
forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995.
These forward-looking statements speak only as of the
date each such statement is made. Unless required by law, we undertake no
obligation to publicly update or revise any forward-looking statements to
reflect new information or future events or otherwise, and we do not intend to
provide such updates.
S-14
USE OF
PROCEEDS
We expect to receive approximately $ million
in net proceeds from this offering, or approximately $ million if
the underwriter exercises its over-allotment option in full. Net proceeds is
what we expect to receive after paying the expenses of this offering, including
the underwriting discounts and commissions, as described in Underwriting
below, and other estimated offering expenses payable by us, which include
legal, accounting and printing fees.
We intend to use the net proceeds from this offering for
general corporate purposes, which may include working capital, capital
expenditures, research and development expenditures, commercial expenditures,
acquisitions of new technologies or businesses that are complementary to our
current technologies or business focus, and investments
As of the date of this prospectus supplement, we cannot
specify with certainty all of the particular uses of the proceeds from this
offering. Accordingly, we will retain broad discretion over the use of such
proceeds. Until we use the net proceeds of this offering, we intend to invest
the funds in short-term, investment grade, interest-bearing securities.
S-15
DILUTION
If you invest in our common stock,
your ownership interest will be diluted by the difference between the price per
share you pay and the net tangible book value per share of our common stock
immediately after this offering.
Our net tangible book value as of September 30, 2011 was
approximately $27.7 million, or $1.22 per share of our common stock, based upon
22,701,741 shares of our common stock
outstanding as of that date. Net tangible book value per share is determined
by dividing our total tangible assets, less total liabilities, by the number of
shares of our common stock outstanding as of September
30, 2011. Dilution in net tangible book value per share represents the
difference between the amount per share paid by purchasers of shares of common
stock in this offering and the net tangible book value per share of our common
stock immediately after this offering.
After giving effect to the sale
of shares of our common stock in this offering at the public
offering price of $ per share and after deducting the underwriting
discounts and commissions and estimated offering expenses payable by us, our as
adjusted net tangible book value as of September 30,
2011 would have been approximately $ million, or $ per share. This
represents an immediate increase in net tangible book value of $ per
share to existing stockholders and immediate dilution in net tangible book
value of $ per share to new investors purchasing our common stock in this
offering at the public offering price. The following table illustrates this
dilution on a per share basis:
Public offering price per share
|
|
|
|
|
$
|
|
|
Net tangible book value per
share as of September 30, 2011
|
|
$
|
1.22
|
|
|
|
|
|
Increase in net tangible book
value per share attributable to this offering
|
|
$
|
|
|
|
|
|
|
Adjusted net tangible book value
per share as of September 30, 2011 after
giving effect to this offering
|
|
|
|
|
|
$
|
|
|
Dilution in net tangible book
value per share to new investors
|
|
|
|
|
|
$
|
|
|
If the
underwriters exercise in full their option to purchase additional
shares of common stock at the public offering price, the as adjusted net
tangible book value after this offering would have been $ per share,
representing an increase in net tangible book value of $ per share to
existing stockholders and immediate dilution in net tangible book value of
$ per share to new investors purchasing our common stock in this offering
at the public offering price.
The foregoing table and
discussion is based on 22,701,741
shares of common stock outstanding as of September
30, 2011 and excludes:
-
1,344,665 shares of
common stock issuable upon the exercise of stock options outstanding as of September 30, 2011;
-
408,388 shares of
common stock issuable upon the exercise of unvested restricted stock awards
outstanding as of September 30, 2011; and
-
7,128,563 shares of common stock issuable upon the exercise of
warrants outstanding as of September 30, 2011, which number of shares will
increase as a result of the offering due to anti-dilution provisions contained
in such warrants.
In addition,
we may choose to raise additional capital due to market conditions or strategic
considerations even if we believe we have sufficient funds for our current or
future operating plans. To the extent that additional capital is raised through
the sale of equity or convertible debt securities, the issuance of these
securities could result in further dilution to our stockholders. Also, if the public offering price in this offering is
less than $3.00 per share, the exercise price of our existing 2011 five-year
warrants to purchase shares of our common stock may be adjusted downward in
accordance with the weighted-average anti-dilution provisions of such warrants,
and the number of shares issuable upon exercise of such warrants would increase,
both of which would result in further dilution to our stockholders. See Risk Factors
Investors in this offering will experience immediate and substantial dilution
on page S-14.
S-16
UNDERWRITING
We have entered into an underwriting agreement with Roth
Capital Partners, LLC with respect to the shares of common stock subject to
this offering. Subject to certain conditions, we have agreed to sell to the
underwriter, and the underwriter has agreed to purchase, the number of shares
of common stock provided below opposite its name.
|
|
Underwriter
|
Number of Shares
of Common Stock
|
Roth Capital Partners, LLC
|
|
|
|
Total
|
|
The underwriter is offering
the shares of common stock subject to its acceptance of the shares of common
stock from us and subject to prior sale. The underwriting agreement provides
that the obligation of the underwriter to pay for and accept delivery of the
shares of common stock offered by this prospectus supplement and the related
prospectus is subject to the approval of certain legal matters by its counsel
and to certain other conditions. The underwriter is obligated to take and pay
for all of the shares of common stock if any such shares are taken. However,
the underwriter is not required to take or pay for the shares of common stock
covered by the underwriters over-allotment option described below.
Over-Allotment Option
We have granted the
underwriter an option, exercisable for 45 days from the date of this
prospectus, to purchase up to an aggregate of additional shares of
common stock to cover over-allotments, if any, at the public offering price set
forth on the cover page of this prospectus supplement, less underwriting
discounts and commissions. The underwriter may exercise this option solely for
the purpose of covering over-allotments, if any, made in connection with the
offering of the shares of common stock offered by this prospectus supplement
and the accompanying prospectus.
Commission and Expenses
The underwriter has advised
us that it proposes to offer the shares of common stock to the public at the
initial public offering prices set forth on the cover page of this prospectus
supplement and to certain dealers at that price less a concession not in excess
of $ per share of common stock. After this offering, the initial public
offering price and concession may be changed by the underwriter. No such
change shall change the amount of proceeds to be received by us as set forth on
the cover page of this prospectus supplement. The per share of common stock is
offered by the underwriter as stated herein, subject to receipt and acceptance
by it and subject to its right to reject any order in whole or in part. The
underwriter has informed us that it does not intend to confirm sales to any
accounts over which it exercises discretionary authority.
The following table shows the
underwriting discounts and commissions payable to the underwriter by us in
connection with this offering. Such amounts are shown assuming both no
exercise and full exercise of the underwriters over-allotment option to
purchase additional shares.
S-17
|
|
Per Share of Common Stock
|
|
Total Without
Exercise of Over-Allotment Option
|
|
Total With Exercise
of Over-Allotment Option
|
Public offering price
|
|
$
|
|
$
|
|
$
|
Underwriting discounts and commissions payable by us
|
|
$
|
|
$
|
|
$
|
We
estimate that expenses payable by us in connection with this offering, other
than the underwriting discounts and commissions referred to above, will be
approximately $ . We have agreed to reimburse the underwriter for
certain out-of-pocket expenses not to exceed $75,000 for all expenses,
including attorneys fees and expenses. In no event will the total compensation
payable to the underwriter and any other member of the Financial Industry Regulatory
Authority, Inc. (or FINRA) or independent broker-dealer (including any
financial advisor) in connection with the sale of the securities offered hereby
exceed 8.0% of the gross proceeds of this offering.
Indemnification
We
have agreed to indemnify the underwriter against certain liabilities, including
liabilities under the Securities Act of 1933, as amended, or the Securities
Act, and liabilities arising from breaches of representations and warranties
contained in the underwriting agreement, or to contribute to payments that the
underwriter may be required to make in respect of those liabilities.
Lock-up Agreements
We and certain of our
officers and directors have agreed, subject to limited exceptions, for a period
of 90 days after the date of the underwriting agreement, not to offer, sell,
contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, directly or indirectly any shares of common stock or any
securities convertible into or exchangeable for our common stock either owned
as of the date of the underwriting agreement or thereafter acquired without the
prior written consent of the underwriter. This 90-day period may be extended
if (1) during the last 17 days of the 90-day period, we issue an earnings
release or material news or a material event regarding us occurs or
(2) prior to the expiration of the 90-day period, we announce that we will
release earnings results during the 16-day period beginning on the last day of
the 90-day period, then the period of such extension will be 18 days, beginning
on the issuance of the earnings release or the occurrence of the material news
or material event. If after any announcement described in clause (2) of
the preceding sentence, we announce that we will not release earnings results
during the 16-day period, the lock-up period shall expire the later of the
expiration of the 90-day period and the end of any extension of such period
made pursuant to clause (1) of the preceding sentence. The underwriter
may, in its sole discretion and at any time or from time to time before the
termination of the lock-up period, without notice, release all or any portion
of the securities subject to lock-up agreements.
Electronic Distribution
This prospectus supplement
and the related prospectus in electronic format may be made available on
websites or through other online services maintained by the underwriter, or by
its affiliates. Other than this prospectus supplement and the related
prospectus in electronic format, the information on the underwriters website
and any information contained in any other website maintained by the
underwriter is not part of this prospectus supplement, the related prospectus
or the registration statement of which this prospectus supplement and the related
prospectus forms a part, has not been approved and/or endorsed by us or the
underwriter in its capacity as underwriter, and should not be relied upon by
investors.
S-18
Price
Stabilization, Short Positions and Penalty Bids
In connection with the offering the
underwriter may engage in stabilizing transactions, over-allotment
transactions, syndicate covering transactions and penalty bids in accordance
with Regulation M under the Exchange Act:
-
Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum.
-
Over-allotment involves sales by the underwriter of shares
in excess of the number of shares the underwriter is obligated to
purchase, which creates a syndicate short position. The short position may
be either a covered short position or a naked short position. In a covered
short position, the number of shares over-allotted by the underwriter is
not greater than the number of shares that it may purchase in the
over-allotment option. In a naked short position, the number of shares
involved is greater than the number of shares in the over-allotment
option. The underwriter may close out any covered short position by either
exercising its over-allotment option and/or purchasing shares in the open
market.
-
Syndicate covering transactions involve purchases of
shares of the common stock in the
open market after the distribution has been completed in order to cover
syndicate short positions. In determining the source of shares to close
out the short position, the underwriter will consider, among other things,
the price of shares available for purchase in the open market as compared
to the price at which it may purchase shares through the over-allotment
option. If the underwriter sells more shares than could be covered by the
over-allotment option, a naked short position, the position can only be
closed out by buying shares in the open market. A naked short position is
more likely to be created if the underwriter is concerned that there could
be downward pressure on the price of the shares in the open market after
pricing that could adversely affect investors who purchase in the
offering.
-
Penalty bids permit the underwriter to reclaim a selling
concession from a syndicate member when the common
stock originally sold by the syndicate member is purchased in a
stabilizing or syndicate covering transaction to cover syndicate short
positions.
These
stabilizing transactions, syndicate covering transactions and penalty bids may
have the effect of raising or maintaining the market price of our common stock or preventing or retarding a
decline in the market price of the common stock. As a result, the price of our common stock may be higher than the price that might otherwise exist in the open
market. Neither we nor the underwriter makes any representation or prediction
as to the direction or magnitude of any effect that the transactions described
above may have on the price of the common stock. In addition, neither we nor the underwriter makes any representations
that the underwriter will engage in these stabilizing transactions or that any
transaction, once commenced, will not be discontinued without notice.
Listing and Transfer
Agent
Our
common stock is listed on the NASDAQ Capital Market and trades under the symbol
PLUG. The transfer agent of our common stock is Broadridge Corporate Issuer
Solutions, Inc.
Other
The
underwriter and/or its affiliates have provided, and may in the future provide,
various investment banking and other financial services for us for which
services it has received and, may in the future receive, customary fees.
Except for services provided in connection with this offering, the underwriter
has not provided any investment banking or other financial services during the
180-day period preceding the date of this prospectus supplement and we do not
expect to retain the underwriter to perform any investment banking or other
financial services for at least 90 days after the date of this prospectus
supplement.
S-19
NOTICE TO INVESTORS
Notice
to Investors in the United Kingdom
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a Relevant Member State) an offer
to the public of any securities which are the subject of the offering
contemplated by this prospectus supplement and the related prospectus may not
be made in that Relevant Member State except that an offer to the public in
that Relevant Member State of any such securities may be made at any time under
the following exemptions under the Prospectus Directive, if they have been
implemented in that Relevant Member State:
(a) to
legal entities which are authorized or regulated to operate in the financial
markets or, if not so authorized or regulated, whose corporate purpose is
solely to invest in securities;
(b) to
any legal entity which has two or more of (1) an average of at least 250
employees during the last financial year; (2) a total balance sheet of more
than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as
shown in its last annual or consolidated accounts;
(c) by
the underwriter to fewer than 100 natural or legal persons (other than
qualified investors as defined in the Prospectus Directive); or
(d) in
any other circumstances falling within Article 3(2) of the Prospectus
Directive, provided that no such offer of these securities shall result in a
requirement for the publication by the issuer or the underwriter of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For the purposes
of this provision, the expression an offer to the public in relation to any
of the securities in any Relevant Member State means the communication in any
form and by any means of sufficient information on the terms of the offer and
any such securities to be offered so as to enable an investor to decide to
purchase any such securities, as the same may be varied in that Member State by
any measure implementing the Prospectus Directive in that Member State and the
expression Prospectus Directive means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
The
underwriter has represented, warranted and agreed that:
(a) it
has only communicated or caused to be communicated and will only communicate or
cause to be communicated any invitation or inducement to engage in investment
activity (within the meaning of section 21 of the Financial Services and
Markets Act 2000 (the FSMA)) received by it in connection with the issue or
sale of any of the securities in circumstances in which section 21(1) of the
FSMA does not apply to the issuer; and
(b) it
has complied with and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the securities in, from or
otherwise involving the United Kingdom.
European Economic Area
In
particular, this document does not constitute an approved prospectus in
accordance with European Commissions Regulation on Prospectuses no. 809/2004
and no such prospectus is to be prepared and approved in connection with this
offering. Accordingly, in relation to each Member State of the European
Economic Area which has implemented the Prospectus Directive (being the
Directive of the European Parliament and of the Council 2003/71/EC and including
any relevant implementing measure in each Relevant Member State) (each, a
Relevant Member State), with effect from and including the date on which the
Prospectus Directive is implemented in that Relevant Member State (the Relevant
Implementation Date) an offer of securities to the public may not be made in
that Relevant Member State prior to the publication of a prospectus in relation
to such securities which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant
Member State and notified to the competent authority in that Relevant Member
State, all in accordance with the Prospectus Directive, except that it may,
with effect from and including the Relevant Implementation Date, make an offer
of securities to the public in that Relevant Member State at any time:
S-20
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to legal entities which are authorized or regulated to operate in
the financial markets or, if not so authorized or regulated, whose corporate
purpose is solely to invest in securities;
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to any legal entity which has two or more of (1) an average of at
least 250 employees during the last financial year; (2) a total balance sheet
of more than €43,000,000; and (3) an annual net turnover of more than
€50,000,000, as shown in the last annual or consolidated accounts; or
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in any other circumstances which do not require the publication
by the Issuer of a prospectus pursuant to Article 3 of the Prospectus
Directive.
For the
purposes of this provision, the expression an offer of securities to the
public in relation to any of the securities in any Relevant Member State means
the communication in any form and by any means of sufficient information on the
terms of the offer and the securities to be offered so as to enable an investor
to decide to purchase or subscribe for the securities, as the same may be
varied in that Member State by any measure implementing the Prospectus
Directive in that Member State. For these purposes the shares offered hereby
are securities.
LEGAL MATTERS
Certain legal matters with respect to the securities
offered by this prospectus supplement will be passed upon for us by Goodwin
Procter LLP, Boston, Massachusetts. Certain legal matters will be passed upon
for the underwriter by Lowenstein Sandler P.C., Roseland, New Jersey.
EXPERTS
The consolidated financial statements of Plug Power Inc.
and subsidiaries as of December 31, 2010 and 2009, and for each of the years in
the three-year period ended December 31, 2010, and managements assessment of
the effectiveness of internal control over financial reporting as of December
31, 2010 have been incorporated by reference herein in reliance upon the
reports of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon authority of said firm as experts in
accounting and auditing.
The audit report covering the December 31, 2010
consolidated financial statements refers to a change in the method of
accounting for revenue arrangements with multiple-deliverables entered into or
substantially modified after January 1, 2010.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with it, which means that we can disclose important
information to you by referring you to those documents instead of having to
repeat the information in this prospectus supplement. The information
incorporated by reference is considered to be part of this prospectus
supplement, and later information that we file with the SEC will automatically
update and supersede this information. We incorporate by reference the
documents listed below that we have filed with the SEC:
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our Annual Report on Form 10-K for the year ended December 31,
2010, filed on March 31, 2011;
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our Quarterly Reports on Form 10-Q for the quarterly periods
ended (i) March 31, 2011, filed on May 13, 2011, (ii) June 30, 2011, filed on
August 11, 2011 and (iii) September 30, 2011, filed on November 9, 2011;
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our Current Reports on Form 8-K filed on February 2, 2011, May 6,
2011, May 13, 2011 (as amended on May 16, 2011 and July 29, 2011), May 19,
2011, May 25, 2011, June 6, 2011, September 30, 2011, October 3, 2011, October
20, 2011, January 30, 2012, March 6, 2012, March 19, 2012, March 21, 2012 and
March 22, 2012;
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our Proxy Statement on Schedule 14A filed with the SEC on April
11, 2011; and
S-21
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the section entitled Description of Registrants Securities to
be Registered contained in our Registration Statement on Form 8-A, filed
pursuant to Section 12(b) of the Exchange Act on June 24, 2009 (as amended on
May 6, 2011 and March 19, 2012).
We also incorporate by reference into this prospectus
supplement all documents (other than current reports furnished under Item 2.02
or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such
items) that are filed by us with the SEC pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus supplement.
You may access our Annual Report on Form 10-K, Quarterly
Reports on Form 10-Q, Current Reports on Form 8-K and amendments to any of
these reports, free of charge on the SECs website. You may also access the
documents incorporated by reference on our website at www.plugpower.com. Other
than the foregoing documents incorporated by reference, the information
contained in, or that can be accessed through, our website is not part of this
prospectus supplement or the accompanying prospectus.
In addition, we will furnish without charge to each
person, including any beneficial owner, to whom a prospectus supplement is
delivered, on written or oral request of such person, a copy of any or all of
the documents incorporated by reference in this prospectus supplement (not
including exhibits to such documents, unless such exhibits are specifically
incorporated by reference in this prospectus supplement or into such
documents). Such requests may be directed to Corporate Secretary, Plug Power
Inc., 968 Albany-Shaker Road, Latham, New York, 12110, or call (518) 782-7700.
S-22
ABOUT THIS PROSPECTUS
This
prospectus is part of a registration statement on Form S-3 that we filed
with the Securities and Exchange Commission, or the SEC, utilizing a shelf
registration process. Under this shelf registration process, we may offer
shares of our common stock and preferred stock, various series of warrants to
purchase common stock or preferred stock, either individually or in units, in
one or more offerings, up to a total dollar amount of $100,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we offer a type or series of securities under this prospectus,
we will provide a prospectus supplement that will contain more specific
information about the specific terms of the offering. We may also authorize one
or more free writing prospectuses to be provided to you that may contain
material information relating to these offerings. Each such prospectus
supplement (and any related free writing prospectus that we may authorize to be
provided to you) may also add, update or change information contained in this
prospectus or in documents incorporated by reference into this prospectus. We
urge you to carefully read this prospectus, any applicable prospectus
supplement and any related free writing prospectus, together with the
information incorporated herein by reference as described under the headings
Where You Can Find Additional Information and Incorporation of Certain
Information by Reference before buying any of the securities being offered.
This
prospectus may not be used to offer or sell securities unless it is accompanied
by a prospectus supplement.
You
should rely only on the information contained or incorporated by reference in
this prospectus, any applicable prospectus supplement and any related free
writing prospectus. We have not authorized anyone to provide you with different
information in addition to or different from that contained in this prospectus,
any applicable prospectus supplement and any related free writing prospectus.
No dealer, salesperson or other person is authorized to give any information or
to represent anything not contained in this prospectus, any applicable prospectus
supplement or any related free writing prospectus that we may authorize to be
provided to you. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the securities offered
hereby, but only under circumstances and in jurisdictions where it is lawful to
do so. You should assume that the information in this prospectus, any
applicable prospectus supplement or any related free writing prospectus is
accurate only as of the date on the front of the document and that any
information incorporated by reference is accurate only as of the date of the
document incorporated by reference, regardless of the time of delivery of this
prospectus, any applicable prospectus supplement or any related free writing
prospectus, or any sale of a security.
This
prospectus contains summaries of certain provisions contained in some of the
documents described herein, but reference is made to the actual documents for
complete information. All of the summaries are qualified in their entirety by
the actual documents. Copies of some of the documents referred to herein have
been filed, will be filed or will be incorporated by reference as exhibits to
the registration statement of which this prospectus is a part, and you may
obtain copies of those documents as described below under the heading Where
You Can Find Additional Information.
1
SUMMARY
This
summary highlights selected information from this prospectus or incorporated by
reference in this prospectus, and does not contain all of the information that
you need to consider in making your investment decision. You should carefully
read the entire prospectus, the applicable prospectus supplement and any
related free writing prospectus, including the risks of investing in our
securities referred to under the heading Risk Factors in this prospectus and
contained in the applicable prospectus supplement and any related free writing
prospectus, and in the other documents that are incorporated by reference into
this prospectus. You should also carefully read the information incorporated by
reference into this prospectus, including our financial statements, and the
exhibits to the registration statement of which this prospectus is a part.
Unless otherwise mentioned or unless the context requires
otherwise, throughout this prospectus, any applicable prospectus supplement and
any related free writing prospectus, the words Plug Power, we, us, our,
the company or similar references refer to Plug Power Inc. and its
subsidiaries; and the term securities refers collectively to our common
stock, preferred stock or warrants to purchase common stock or preferred stock,
or any combination of the foregoing securities.
This
prospectus and the information incorporated herein by reference includes
trademarks, service marks and trade names owned by us or other companies. All
trademarks, service marks and trade names included or incorporated by reference
into this prospectus, any applicable prospectus supplement or any related free
writing prospectus are the property of their respective owners.
Our Company
We are a leading
provider of alternative energy technology focused on the design, development,
commercialization and manufacture of fuel cell systems for the industrial
off-road (forklift or material handling) market. We have also developed
products for the back-up and stationary power markets worldwide. Effective
April 1, 2010, we were no longer considered a development stage enterprise
since our principal operations began to provide more than insignificant
revenues as we received orders from repeat customers, increased our customer
base and had a significant backlog. Prior to April 1, 2010, we were considered
a development stage enterprise because substantially all of our resources and
efforts were aimed at the discovery of new knowledge that could lead to
significant improvement in fuel cell reliability and durability, and the
establishment, expansion and stability of markets for our products.
We are focused on
proton exchange membrane, or PEM, fuel cell and fuel processing technologies
and fuel cell/battery hybrid technologies, from which multiple products are
available. A fuel cell is an electrochemical device that combines hydrogen and
oxygen to produce electricity and heat without combustion. Hydrogen is derived
from hydrocarbon fuels such as liquid petroleum gas (LPG), natural gas,
propane, methanol, ethanol, gasoline or biofuels. Hydrogen can also be obtained
from the electrolysis of water. Hydrogen can be purchased directly from industrial
gas providers or can be produced on-site at consumer locations.
We concentrate our
efforts on developing, manufacturing and selling our hydrogen-fueled PEM
GenDrive® products on commercial terms for industrial off-road (forklift or
material handling) applications, with a focus on multi-shift high volume
manufacturing and high throughput distribution sites.
We have previously
invested in development and sales activities for low-temperature remote-prime
power GenSys® products and our GenCore® product, which is a hydrogen fueled PEM
fuel cell system to provide back-up power for critical infrastructure. While we
will continue to service and support GenSys and/or GenCore products on a
limited basis, our main focus is our Gendrive product line.
We sell our products
worldwide, with a primary focus on North America, through our direct product
sales force, original equipment manufacturers (OEMs) and their dealer networks.
We sell to business, industrial and government customers.
2
We were organized
in the State of Delaware on June 27, 1997. We were originally a joint venture
between Edison Development Corporation and Mechanical Technology Incorporated.
In 2007, we acquired all the issued and outstanding equity of Cellex Power
Products, Inc. (Cellex) and General Hydrogen Corporation (General Hydrogen).
Through these acquisitions, and our continued GenDrive product development
efforts, we became the first fuel cell company to offer a complete suite of
Class 1 - sit-down counterbalance trucks, Class 2 stand-up reach trucks and
Class 3 rider pallet trucks products. Our principal executive offices are
located at 968 Albany-Shaker Road, Latham, New York, 12110, and our telephone
number is (518) 782-7700. Our corporate website address is www.plugpower.com.
Our current and future annual reports on Form 10-K, future quarterly reports on
Form 10-Q, current reports on Form 8-K and other filings with the SEC are
available, free of charge, through our website as soon as reasonably
practicable after we electronically file such materials with, or furnish them
to, the SEC. Our SEC filings can be accessed through the investor relations
section of our website. The information contained on, or accessible through,
our website is not intended to be part of this or any other report we file
with, or furnish to, the SEC. Our common stock trades on the NASDAQ Capital
Market under the symbol PLUG.
The Securities We May Offer
We may
offer shares of our common stock and preferred stock, various series of
warrants to purchase common stock or preferred stock, either individually or in
units, with a total value of up to $100,000,000 from time to time under this
prospectus at prices and on terms to be determined at the time of any offering.
This prospectus provides you with a general description of the securities we
may offer. Each time we offer a type or series of securities under this
prospectus, we will provide a prospectus supplement that will describe the
specific amounts, prices and other important terms of the securities.
The
prospectus supplement and any related free writing prospectus that we may
authorize to be provided to you may also add, update or change information
contained in this prospectus or in documents we have incorporated by reference.
However, no prospectus supplement or free writing prospectus will offer a
security that is not registered and described in this prospectus at the time of
the effectiveness of the registration statement of which this prospectus is a
part.
This
prospectus may not be used to offer or sell securities unless it is accompanied
by a prospectus supplement.
We may sell the securities directly to investors or to
or through agents, underwriters or dealers. We, and our agents or underwriters,
reserve the right to accept or reject all or part of any proposed purchase of
securities. If we do offer securities to or through agents or underwriters, we
will include in the applicable prospectus supplement:
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the names of those agents or underwriters;
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applicable fees, discounts and commissions
to be paid to them;
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details regarding over-allotment options,
if any; and
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the net proceeds to us.
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Common
Stock.
We may issue shares of our
common stock from time to time. Holders of shares of our common stock are
entitled to one vote for each share held of record on all matters to be voted
on by stockholders and do not have cumulative voting rights. Subject to the
preferences that may be applicable to any then outstanding preferred stock, the
holders of our outstanding shares of common stock are entitled to receive
dividends, if any, as may be declared from time to time by our board of
directors out of legally available funds. In the event of our liquidation,
dissolution or winding up, holders of our common stock will be entitled to share
ratably in the net assets legally available for distribution to stockholders
after the payment of all of our debts and other liabilities, subject to the
satisfaction of any liquidation preference granted to the holders of any
outstanding shares of preferred stock.
Preferred
Stock.
We may issue shares of our
preferred stock from time to time, in one or more series. Our board of
directors will determine the rights, preferences and privileges of the shares
of each wholly unissued series, and any qualifications, limitations or
restrictions thereon, including dividend rights, conversion rights, preemptive
rights, terms of redemption or repurchase, liquidation preferences, sinking
fund terms and the number of shares constituting any series or the designation
of any series. Convertible preferred stock will be convertible into our common
stock or exchangeable for other securities. Conversion may be mandatory or at
your option and would be at prescribed conversion rates.
3
If we
sell any series of preferred stock under this prospectus, we will fix the
rights, preferences and privileges of the preferred stock of such series, as
well as any qualifications, limitations or restrictions thereon, in the
certificate of designation relating to that series. We will file as an exhibit
to the registration statement of which this prospectus is a part, or will
incorporate by reference from reports that we file with the SEC, the form of
any certificate of designation that describes the terms of the series of
preferred stock we are offering before the issuance of that series of preferred
stock. We urge you to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you) related to the
series of preferred stock being offered, as well as the complete certificate of
designation that contains the terms of the applicable series of preferred
stock.
Warrants.
We may issue warrants for the
purchase of common stock and/or preferred stock in one or more series. We may
issue warrants independently or together with common stock and/or preferred
stock, and the warrants may be attached to or separate from these securities.
In this prospectus, we have summarized certain general features of the
warrants. We urge you, however, to read the applicable prospectus supplement
(and any free writing prospectus that we may authorize to be provided to you)
related to the particular series of warrants being offered, as well as the
complete warrant agreements and warrant certificates that contain the terms of
the warrants. Forms of the warrant agreements and forms of warrant certificates
containing the terms of the warrants being offered will be filed as exhibits to
the registration statement of which this prospectus is a part or will be
incorporated by reference from reports that we file with the SEC.
We
will evidence each series of warrants by warrant certificates that we will
issue. Warrants may be issued under an applicable warrant agreement that we
enter into with a warrant agent. We will indicate the name and address of the
warrant agent, if applicable, in the prospectus supplement relating to the
particular series of warrants being offered.
Units.
We may issue, in one or more series,
units consisting of common stock, preferred stock, and/or warrants for the
purchase of common stock and/or preferred stock in any combination. In this
prospectus, we have summarized certain general features of the units. We urge
you, however, to read the applicable prospectus supplement (and any free
writing prospectus that we may authorize to be provided to you) related to the
series of units being offered, as well as the complete unit agreement that
contains the terms of the units. We will file as exhibits to the registration
statement of which this prospectus is a part, or will incorporate by reference
from reports that we file with the SEC, the form of unit agreement and any
supplemental agreements that describe the terms of the series of units we are
offering before the issuance of the related series of units.
We will
evidence each series of units by unit certificates that we will issue. Units
may be issued under a unit agreement that we enter into with a unit agent. We
will indicate the name and address of the unit agent, if applicable, in the
prospectus supplement relating to the particular series of units being offered.
RISK FACTORS
Investing
in our securities involves a high degree of risk. Before purchasing our
securities, you should carefully consider the risks and uncertainties set forth
under the heading Risk Factors in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2010, filed with the SEC on March 31, 2011,
which is incorporated by reference in this prospectus, as well as any updates
thereto contained in subsequent filings with the SEC or any applicable
prospectus supplement or free writing prospectus. If any of these risks were to
occur, our business, financial condition or results of operations would likely
suffer. In that event, the value of our securities could decline, and you could
lose all or part of your investment. The risks and uncertainties we describe
are not the only ones facing us. Additional risks not presently known to us or
that we currently deem immaterial may also impair our business operations.
FORWARD-LOOKING STATEMENTS
This
prospectus contains statements that are not historical facts and are considered
forward-looking within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act. These forward-looking statements contain
projections of our future results of operations or of our financial position or
state other forward-looking information. In some cases you can identify these
statements by forward-looking words such as anticipate, believe, could,
continue, estimate, expect, intend, may, should, will, would,
plan, projected or the negative of such words or other similar words or
phrases. We believe that it is important to communicate our future expectations
to our investors. However, there may be events in the future that we are not
able to accurately predict or control and that may cause our actual results to
differ materially from the expectations we describe in our forward-looking
statements. Investors are cautioned not to unduly rely on forward-looking statements
because they involve risks and uncertainties, and actual results may differ
materially from those discussed as a result of various factors, including, but
not limited to: the risk that we continue to incur losses and might never
achieve or maintain profitability, the risk that the additional capital we
expect we will need to raise to fund our operations beyond the first quarter of
2012 may not be available; our lack of extensive experience in manufacturing
and marketing products may impact our ability to manufacture and market
products on a profitable and large-scale commercial basis; the risk that unit
orders will not ship, be installed and/or converted to revenue, in whole or in
part; the risk that pending orders may not convert to purchase orders, in whole
or in part; the risk that our continued failure to comply with NASDAQs listing
standards may severely limit our ability to raise additional capital; the cost
and timing of developing, marketing and selling our products and our ability to
raise the necessary capital to fund such costs; the ability to achieve the
forecasted gross margin on the sale of our products; the actual net cash used
for operating expenses may exceed the projected net cash for operating
expenses; the cost and availability of fuel and fueling infrastructures for our
products; market acceptance of our GenDrive systems; our ability to establish
and maintain relationships with third parties with respect to product
development, manufacturing, distribution and servicing and the supply of key
product components; the cost and availability of components and parts for our
products; our ability to develop commercially viable products; our ability to
reduce product and manufacturing costs; our ability to successfully expand our
product lines; our ability to improve system reliability for our GenDrive
systems; competitive factors, such as price competition and competition from
other traditional and alternative energy companies; our ability to protect our
intellectual property; the cost of complying with current and future federal,
state and international governmental regulations; and other risks and
uncertainties referenced under Risk Factors above and in any applicable
prospectus supplement or free writing prospectus and any documents incorporated
by reference herein or therein. Readers should not place undue reliance on our
forward-looking statements. These forward-looking statements speak only as of
the date on which the statements were made and are not guarantees of future
performance. Except as may be required by applicable law, we do not undertake
or intend to update any forward-looking statements after the date of this
prospectus or the respective dates of documents incorporated herein or therein
that include forward-looking statements.
4
RATIO OF COMBINED FIXED CHARGES AND PREFERENCE
DIVIDENDS TO EARNINGS
Our
ratio of combined fixed charges and preference dividends to earnings for each
of the five most recently completed fiscal years and any required interim
periods will each be specified in a prospectus supplement or in a document that
we file with the SEC and incorporate by reference pertaining to the issuance,
if any, by us of preference securities in the future.
USE OF PROCEEDS
Except
as described in any prospectus supplement or in any related free writing
prospectus that we may authorize to be provided to you, the net proceeds
received by us from our sale of the securities described in this prospectus
will be added to our general funds and will be used for our general corporate purposes.
From time to time, we may engage in additional public or private financings of
a character and amount which we may deem appropriate.
PLAN OF DISTRIBUTION
We may
sell the securities from time to time pursuant to underwritten public
offerings, negotiated transactions, block trades or a combination of these
methods. We may sell the securities to or through underwriters or dealers,
through agents, or directly to one or more purchasers. We may distribute
securities from time to time in one or more transactions:
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at a fixed price or prices, which may be
changed;
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at market prices prevailing at the time of
sale;
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at prices related to such prevailing market
prices; or
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Each
time we offer and sell securities, we will provide a prospectus supplement that
will set forth the terms of the offering of the securities, including:
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the name or names of the underwriters, if
any;
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the purchase price of the securities and
the proceeds we will receive from the sale;
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any over-allotment options under which
underwriters may purchase additional securities;
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any agency fees or underwriting discounts
and other items constituting agents or underwriters compensation;
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any public offering price;
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any discounts or concessions allowed or
reallowed or paid to dealers; and
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any securities exchange or market on which
the securities may be listed.
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If
underwriters are used in the sale, they will acquire the securities for their
own account and may resell the securities from time to time in one or more
transactions at a fixed public offering price or at varying prices determined
at the time of sale. The obligations of the underwriters to purchase the
securities will be subject to the conditions set forth in the applicable
underwriting agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by underwriters
without a syndicate. Subject to certain conditions, the underwriters will be
obligated to purchase all of the securities offered by the prospectus
supplement, other than securities covered by any over-allotment option. Any
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may change from time to time. We may use underwriters with whom
we or they have a material relationship. The prospectus supplement, naming the
underwriter, will describe the nature of any such relationship.
We may
sell securities directly or through agents we or they designate from time to
time. The prospectus supplement will name any agent involved in the offering
and sale of securities and any commissions we will pay to them. Unless the
prospectus supplement states otherwise, any agent will be acting on a
best-efforts basis for the period of its appointment.
We may
authorize agents or underwriters to solicit offers by certain purchasers to
purchase securities from us or them at the public offering price set forth in
the prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. The prospectus
supplement will set forth the conditions to these contracts and any commissions
we must pay for solicitation of these contracts.
We may
provide agents and underwriters with indemnification against civil liabilities,
including liabilities under the Securities Act, or contribution with respect to
payments that the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions with, or
perform services for, us in the ordinary course of business.
All
securities we may offer, other than common stock, will be new issues of
securities with no established trading market. Any underwriters may make a
market in these securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot guarantee
the liquidity of the trading markets for any securities.
Any
underwriter may engage in over-allotment, stabilizing transactions,
short-covering transactions and penalty bids in accordance with
Regulation M under the Exchange Act. Over-allotment involves sales in
excess of the offering size, which create a short position. Stabilizing transactions
permit bids to purchase the underlying security so long as the stabilizing bids
do not exceed a specified maximum price. Syndicate-covering or other
short-covering transactions involve purchases of the securities, either through
exercise of the over-allotment option or in the open market after the
distribution is completed, to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the securities
originally sold by the dealer are purchased in a stabilizing or covering
transaction to cover short positions. Those activities may cause the price of
the securities to be higher than it would otherwise be. If commenced, the
underwriters may discontinue any of the activities at any time.
Any
underwriters that are qualified market makers on the NASDAQ Capital Market may
engage in passive market making transactions in the common stock on the NASDAQ
Capital Market in accordance with Regulation M under the Exchange Act,
during the business day prior to the pricing of the offering, before the
commencement of offers or sales of the common stock. Passive market makers must
comply with applicable volume and price limitations and must be identified as
passive market makers. In general, a passive market maker must display its bid
at a price not in excess of the highest independent bid for such security; if
all independent bids are lowered below the passive market makers bid, however,
the passive market makers bid must then be lowered when certain purchase
limits are exceeded. Passive market making may stabilize the market price of
the securities at a level above that which might otherwise prevail in the open
market and, if commenced, may be discontinued at any time.
In
compliance with guidelines of the Financial Industry Regulatory Authority, or
FINRA, the maximum consideration or discount to be received by any FINRA member
or independent broker dealer may not exceed 8% of the aggregate amount of the
securities offered pursuant to this prospectus and any applicable prospectus
supplement.
6
DESCRIPTION OF CAPITAL STOCK
General
Our authorized capital stock consists of 245,000,000
shares of common stock, $0.01 par value per share, and 5,000,000 shares of
preferred stock, $0.01 par value per share. As of March 31, 2011, there were
132,784,673 shares of our common stock outstanding and no shares of preferred
stock outstanding.
The
following summary description of our capital stock is based on the provisions
of our amended and restated certificate of incorporation and amended and
restated bylaws and the applicable provisions of the Delaware General
Corporation Law. This information is qualified entirely by reference to the
applicable provisions of our amended and restated certificate of incorporation,
amended and restated bylaws and the Delaware General Corporation Law. For
information on how to obtain copies of our amended and restated certificate of
incorporation and amended and restated bylaws, which are exhibits to the
registration statement of which this prospectus is a part, see Where You Can
Find Additional Information and Incorporation of Certain Information by
Reference.
Common Stock
Holders
of shares of our common stock are entitled to one vote for each share held of
record on all matters to be voted on by stockholders, including the election of
directors. Our amended and restated certificate of incorporation and amended
and restated bylaws do not provide for cumulative voting rights. Because of
this, the holders of a majority of our common stock entitled to vote in any
election of directors can elect all of the directors standing for election.
Subject to the preferences that may be applicable to any then outstanding
preferred stock, the holders of our outstanding shares of common stock are
entitled to receive dividends, if any, as may be declared from time to time by
our board of directors out of legally available funds. In the event of our
liquidation, dissolution or winding up, holders of our common stock will be
entitled to share ratably in the net assets legally available for distribution
to stockholders after the payment of all of our debts and other liabilities,
subject to the satisfaction of any liquidation preference granted to the
holders of any outstanding shares of preferred stock. Holders of our common
stock have no preemptive, conversion or subscription rights, and there are no
redemption or sinking fund provisions applicable to our common stock. The
rights, preferences and privileges of the holders of our common stock are
subject to, and may be adversely affected by, the rights of the holders of
shares of any series of our preferred stock that we may designate and issue in
the future.
Preferred Stock
Pursuant
to our amended and restated certificate of incorporation, our board of
directors has the authority, without further action by the stockholders (unless
such stockholder action is required by applicable law or NASDAQ rules), to
designate and issue up to 5,000,000 shares of preferred stock in one or more
series, to establish from time to time the number of shares to be included in
each such series, to fix the rights, preferences and privileges of the shares
of each wholly unissued series, and any qualifications, limitations or
restrictions thereon, and to increase or decrease the number of shares of any
such series, but not below the number of shares of such series then
outstanding.
We
will fix the rights, preferences and privileges of the preferred stock of each
such series, as well as any qualifications, limitations or restrictions
thereon, in the certificate of designation relating to that series. We will
file as an exhibit to the registration statement of which this prospectus is a
part, or will incorporate by reference from reports that we file with the SEC,
the form of any certificate of designation that describes the terms of the
series of preferred stock we are offering before the issuance of that series of
preferred stock. This description will include:
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the title and stated value;
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the number of shares we are offering;
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the liquidation preference per share;
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the dividend rate, period and payment date
and method of calculation for dividends;
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whether dividends will be cumulative or
non-cumulative and, if cumulative, the date from which dividends will
accumulate;
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the procedures for any auction and
remarketing, if any;
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the provisions for a sinking fund, if any;
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the provisions for redemption or
repurchase, if applicable, and any restrictions on our ability to exercise
those redemption and repurchase rights;
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any listing of the preferred stock on any
securities exchange or market;
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whether the preferred stock will be
convertible into our common stock, and, if applicable, the conversion price,
or how it will be calculated, and the conversion period;
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whether the preferred stock will be
exchangeable into debt securities, and, if applicable, the exchange price, or
how it will be calculated, and the exchange period;
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voting rights, if any, of the preferred
stock;
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preemptive rights, if any;
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restrictions on transfer, sale or other
assignment, if any;
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whether interests in the preferred stock
will be represented by depositary shares;
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a discussion of any material United States
federal income tax considerations applicable to the preferred stock;
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the relative ranking and preferences of the
preferred stock as to dividend rights and rights if we liquidate, dissolve or
wind up our affairs;
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any limitations on the issuance of any
class or series of preferred stock ranking senior to or on a parity with the
series of preferred stock as to dividend rights and rights if we liquidate,
dissolve or wind up our affairs; and
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any other specific terms, preferences,
rights or limitations of, or restrictions on, the preferred stock.
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The
General Corporation Law of the State of Delaware, the state of our
incorporation, provides that the holders of preferred stock will have the right
to vote separately as a class (or, in some cases, as a series) on an amendment
to our amended and restated certificate of incorporation if the amendment would
change the par value, the number of authorized shares of the class or the
powers, preferences or special rights of the class or series so as to adversely
affect the class or series, as the case may be. This right is in addition to
any voting rights that may be provided for in the applicable certificate of
designation.
Our
board of directors may authorize the issuance of preferred stock with voting or
conversion rights that could adversely affect the voting power or other rights
of the holders of our common stock. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and other
corporate purposes, could, among other things, have the effect of delaying,
deferring or preventing a change in our control and may adversely affect the
market price of the common stock and the voting and other rights of the holders
of common stock. Additionally, the issuance of preferred stock may have the
effect of decreasing the market price of our common stock.
8
Delaware Anti-Takeover Law and Provisions of our
Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws
Delaware Anti-Takeover Law
. We are subject to Section 203 of the Delaware
General Corporation Law. Section 203 generally prohibits a public Delaware
corporation from engaging in a business combination with an interested
stockholder for a period of three years after the date of the transaction in
which the person became an interested stockholder, unless:
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prior to the date of the transaction, the
board of directors of the corporation approved either the business
combination or the transaction which resulted in the stockholder becoming an
interested stockholder;
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the interested stockholder owned at least
85% of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding for purposes of determining the number of
shares outstanding (a) shares owned by persons who are directors and
also officers and (b) shares owned by employee stock plans in which
employee participants do not have the right to determine confidentially whether
shares held subject to the plan will be tendered in a tender or exchange
offer; or
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on or subsequent to the date of the
transaction, the business combination is approved by the board and authorized
at an annual or special meeting of stockholders, and not by written consent,
by the affirmative vote of at least 66- 2/3% of the outstanding voting stock
which is not owned by the interested stockholder.
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Section 203
defines a business combination to include:
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any merger or consolidation involving the corporation
and the interested stockholder;
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any sale, transfer, pledge or other
disposition involving the interested stockholder of 10% or more of the assets
of the corporation;
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subject to exceptions, any transaction that
results in the issuance or transfer by the corporation of any stock of the
corporation to the interested stockholder; and
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the receipt by the interested stockholder
of the benefit of any loans, advances, guarantees, pledges or other financial
benefits provided by or through the corporation.
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In
general, Section 203 defines an interested stockholder as any entity or
person beneficially owning 15% or more of the outstanding voting stock of the
corporation or any entity or person affiliated with or controlling or controlled
by the entity or person.
Amended
and Restated Certificate of Incorporation and Amended and Restated Bylaws
. Provisions of our amended and restated certificate
of incorporation and amended and restated bylaws may delay or discourage
transactions involving an actual or potential change in our control or change
in our management, including transactions in which stockholders might otherwise
receive a premium for their shares or transactions that our stockholders might
otherwise deem to be in their best interests. Therefore, these provisions could
adversely affect the price of our common stock. Among other things, our amended
and restated certificate of incorporation and amended and restated bylaws:
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permit our board of directors to issue up to
5,000,000 shares of preferred stock, with any rights, preferences and
privileges as they may designate;
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provide that the authorized number of
directors may be changed only by resolution of the board of directors;
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provide that all vacancies, including newly
created directorships, may, except as otherwise required by law and subject
to the rights of the holders of any series of preferred stock, be filled by
the affirmative vote of a majority of directors then in office, even if less
than a quorum;
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divide our board of directors into three
classes;
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require that any action to be taken by our
stockholders must be effected at a duly called annual or special meeting of
stockholders and not be taken by written consent;
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provide that stockholders seeking to
present proposals before a meeting of stockholders or to nominate candidates
for election as directors at a meeting of stockholders must provide notice in
writing in a timely manner, and also specify requirements as to the form and
content of a stockholders notice;
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do not provide for cumulative voting rights
(therefore allowing the holders of a majority of the shares of common stock
entitled to vote in any election of directors to elect all of the directors
standing for election, if they should so choose); and
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provide that special meetings of our
stockholders may be called only by the chairman of the board, our chief
executive officer, our president or by the board of directors pursuant to a
resolution adopted by a majority of the total number of authorized directors.
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The
amendment of any of these provisions, with the exception of the ability of our
board of directors to issue shares of preferred stock and designate any rights,
preferences and privileges thereto, would require approval by the holders of at
least 66- 2/3% of our then outstanding common stock.
Shareholder Rights Plan
On June 22, 2009, we adopted a shareholder rights plan, the
purpose of which is, among other things, to enhance our Boards ability to
protect stockholder interests and to ensure that stockholders receive fair
treatment in the event any coercive takeover attempt of the company is made in
the future. The shareholder rights plan could make it more difficult for a
third party to acquire, or could discourage a third party from acquiring, the
company or a large block of our common stock. The following summarizes material
terms of the shareholder rights plan and the associated preferred share
purchase rights. This description is subject to the detailed provisions of,
and is qualified by reference to, the shareholder rights agreement which has
been filed as an exhibit to our Registration Statement on Form 8-A dated June
24, 2009, as previously filed with the Commission.
Each
outstanding share of our common stock evidences one preferred share purchase
right. Under the terms of the shareholder rights agreement, each preferred
share purchase right entitles the registered holder to purchase from us one
ten-thousandth of a share (each, a unit) of our Series A Junior Participating
Cumulative Preferred Stock, par value $0.01 per share, at a cash exercise price
of $6.50 per unit, subject to adjustment. Initially, the preferred
share purchase rights are not exercisable and are attached to and trade
with all shares of common stock. The preferred share
purchase rights will separate from the common stock and will become
exercisable upon the earlier of:
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the close of
business on the tenth calendar day following the first public announcement
that a person or group of affiliated or associated persons 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, or
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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.
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With respect to any
person who beneficially owned 15% or more of the outstanding shares of common
stock as of June 23, 2009, such person's share ownership will not cause the preferred share purchase rights to be exercisable
unless:
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such person
acquires beneficial ownership of shares of common stock representing more
than an additional 0.5% of the outstanding shares of common stock held by
such person as of June 23, 2009; or
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if after June 23,
2009 such person reduces its beneficial ownership of shares of common stock
and such person subsequently acquires beneficial ownership of more than an
additional 0.5% of the common stock.
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In the event that a
person or group of affiliated or associated persons has acquired beneficial
ownership of 15% or more of the outstanding shares of common stock, proper
provision will be made so that each holder of a preferred
share purchase right (other than an acquiring person or its associates
or affiliates, whose preferred share purchase rights
shall become null and void) will thereafter have the right to receive (a
subscription right) upon exercise, in lieu of a number of units, 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 preferred share purchase
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 preferred share purchase rights.
In the event that, at
any time following the dated that a person or group of affiliated or associated
persons has acquired beneficial ownership of 15% or more of the outstanding
shares of common stock:
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we consolidate
with, or merge with and into, any other person, and we are not the continuing
or surviving corporation,
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any person
consolidates with the company, or merges with and into the company and we are
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
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50% or more of our
assets or earning power is sold, mortgaged or otherwise transferred, each
holder of a preferred share purchase right
(other than an acquiring person or its associates or affiliates, whose preferred share purchase rights shall become null
and void) will thereafter have the right to receive (a merger right), upon
exercise, common stock of the acquiring company having a market value equal
to two times the exercise price of the preferred
share purchase rights. The holder of a preferred
share purchase right will continue to have this merger right whether
or not such holder has exercised its subscription right. Preferred share purchase rights that are or were
beneficially owned by an acquiring person may (under certain circumstances
specified in the shareholder rights agreement) become null and void.
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The preferred share purchase rights may be redeemed in
whole, but not in part, at a price of $0.001 per preferred
share purchase 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:
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the time at which
any person becomes an acquiring person; or
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the expiration date
of the shareholder rights agreement.
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Immediately upon the
action of the Board of Directors ordering redemption of the preferred share purchase rights, the preferred share purchase rights will terminate and
thereafter the only right of the holders of preferred
share purchase rights will be to receive the redemption price.
The shareholder rights agreement requires an independent
committee of the Board of Directors to review at least once every three years
whether maintaining the shareholder rights agreement continues
to be in the best interests of our stockholders.
The shareholder 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 shareholder rights agreement, amend the shareholder 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 preferred share purchase 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 shareholder
rights agreement to lower the threshold at which a person becomes an
acquiring person to not less than the greater of:
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the sum of 0.001%
and the largest percentage of the outstanding common stock then owned by any
person, and
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10%.
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Until a preferred share purchase 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 preferred share
purchase 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 preferred share purchase rights
become exercisable for units, other securities of the company, other
consideration or for common stock of an acquiring company.
The preferred share purchase rights will expire at the
close of business on June 23, 2019, unless previously redeemed or exchanged by
the company.
Transfer Agent and
Registrar
The
transfer agent and registrar for our common stock is American Stock
Transfer & Trust Company, LLC. The transfer agent and registrars
address is 59 Maiden Lane, New York, New York 10038. The transfer agent and
registrar for any series of preferred stock that we may offer under this
prospectus will be named and described in the prospectus supplement for that
series.
DESCRIPTION OF
WARRANTS
11
We may
issue warrants for the purchase of common stock and/or preferred stock in one
or more series. We may issue warrants independently or together with common
stock and/or preferred stock, and the warrants may be attached to or separate
from these securities. While the terms summarized below will apply generally to
any warrants that we may offer, we will describe the particular terms of any
series of warrants in more detail in the applicable prospectus supplement. The
terms of any warrants offered under a prospectus supplement may differ from the
terms described below.
We will file as exhibits to the registration statement
of which this prospectus is a part, or will incorporate by reference from
reports that we file with the SEC, the form of warrant agreement, including a
form of warrant certificate, that describes the terms of the particular series
of warrants we are offering before the issuance of the related series of
warrants. The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their entirety by
reference to, all the provisions of the warrant agreement and warrant
certificate applicable to the particular series of warrants that we may offer
under this prospectus. We urge you to read the applicable prospectus
supplements related to the particular series of warrants that we may offer
under this prospectus, as well as any related free writing prospectuses, and
the complete warrant agreements and warrant certificates that contain the terms
of the warrants.
General
We
will describe in the applicable prospectus supplement the terms of the series
of warrants being offered, including:
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the offering price and aggregate number of
warrants offered;
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the currency for which the warrants may be
purchased;
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if applicable, the designation and terms of
the securities with which the warrants are issued and the number of warrants
issued with each such security or each principal amount of such security;
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if applicable, the date on and after which
the warrants and the related securities will be separately transferable;
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the number of shares of common stock or
preferred stock, as the case may be, purchasable upon the exercise of one
warrant and the price at which these shares may be purchased upon such
exercise;
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the effect of any merger, consolidation,
sale or other disposition of our business on the warrant agreements and the
warrants;
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the terms of any rights to redeem or call
the warrants;
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any provisions for changes to or
adjustments in the exercise price or number of securities issuable upon
exercise of the warrants;
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the dates on which the right to exercise
the warrants will commence and expire;
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the manner in which the warrant agreements
and warrants may be modified;
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the terms of the securities issuable upon
exercise of the warrants; and
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any other specific terms, preferences,
rights or limitations of or restrictions on the warrants.
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Before
exercising their warrants, holders of warrants will not have any of the rights
of holders of the securities purchasable upon such exercise, including the
right to receive dividends, if any, or, payments upon our liquidation,
dissolution or winding up or to exercise voting rights, if any
12
Exercise of
Warrants
Each
warrant will entitle the holder to purchase the securities that we specify in
the applicable prospectus supplement at the exercise price that we describe in
the applicable prospectus supplement. Unless we otherwise specify in the
applicable prospectus supplement, holders of the warrants may exercise the
warrants at any time up to the specified time on the expiration date that we
set forth in the applicable prospectus supplement. After the close of business
on the expiration date, unexercised warrants will become void.
Holders
of the warrants may exercise the warrants by delivering the warrant certificate
representing the warrants to be exercised together with specified information,
and paying the required amount to the warrant agent in immediately available
funds, as provided in the applicable prospectus supplement. We will set forth
on the reverse side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be required to
deliver to the warrant agent.
Upon
receipt of the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant agent or any
other office indicated in the applicable prospectus supplement, we will issue
and deliver the securities purchasable upon such exercise. If fewer than all of
the warrants represented by the warrant certificate are exercised, then we will
issue a new warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the warrants may
surrender securities as all or part of the exercise price for warrants.
Governing Law
Unless
we provide otherwise in the applicable prospectus supplement, the warrants and
warrant agreements will be governed by and construed in accordance with the
laws of the State of New York.
Enforceability of
Rights by Holders of Warrants
Each
warrant agent will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of agency or trust
with any holder of any warrant. A single bank or trust company may act as
warrant agent for more than one issue of warrants. A warrant agent will have no
duty or responsibility in case of any default by us under the applicable
warrant agreement or warrant, including any duty or responsibility to initiate
any proceedings at law or otherwise, or to make any demand upon us. Any holder
of a warrant may, without the consent of the related warrant agent or the
holder of any other warrant, enforce by appropriate legal action its right to
exercise, and receive the securities purchasable upon exercise of, its
warrants.
DESCRIPTION OF UNITS
We may
issue, in one more series, units consisting of common stock, preferred stock,
and/or warrants for the purchase of common stock and/or preferred stock in any
combination. While the terms we have summarized below will apply generally to
any units that we may offer under this prospectus, we will describe the
particular terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a prospectus
supplement may differ from the terms described below.
We
will file as exhibits to the registration statement of which this prospectus is
a part, or will incorporate by reference from reports that we file with the
SEC, the form of unit agreement that describes the terms of the series of units
we are offering, and any supplemental agreements, before the issuance of the
related series of units. The following summaries of material terms and
provisions of the units are subject to, and qualified in their entirety by
reference to, all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you to read the
applicable prospectus supplements related to the particular series of units
that we may offer under this prospectus, as well as any related free writing
prospectuses and the complete unit agreement and any supplemental agreements
that contain the terms of the units.
General
Each
unit will be issued so that the holder of the unit is also the holder of each
security included in the unit. Thus, the holder of a unit will have the rights
and obligations of a holder of each included security. The unit agreement under
which a unit is issued may provide that the securities included in the unit may
not be held or transferred separately, at any time or at any time before a
specified date.
We
will describe in the applicable prospectus supplement the terms of the series
of units being offered, including:
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the designation and terms of the units and
of the securities comprising the units, including whether and under what
circumstances those securities may be held or transferred separately;
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any provisions of the governing unit
agreement that differ from those described below in this section; and
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any provisions for the issuance, payment,
settlement, transfer or exchange of the units or of the securities comprising
the units.
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The
provisions described in this section, as well as those described under
Description of Capital Stock and Description of Warrants will apply to each
unit and to any common stock, preferred stock or warrant included in each
unit, respectively.
Issuance in Series
We may
issue units in such amounts and in such numerous distinct series as we
determine.
Enforceability of
Rights by Holders of Units
Each
unit agent will act solely as our agent under the applicable unit agreement and
will not assume any obligation or relationship of agency or trust with any
holder of any unit. A single bank or trust company may act as unit agent for
more than one series of units. A unit agent will have no duty or responsibility
in case of any default by us under the applicable unit agreement or unit,
including any duty or responsibility to initiate any proceedings at law or
otherwise, or to make any demand upon us. Any holder of a unit may, without the
consent of the related unit agent or the holder of any other unit, enforce by
appropriate legal action its rights as holder under any security included in
the unit.
Title
We,
and any unit agent and any of their agents, may treat the registered holder of
any unit certificate as an absolute owner of the units evidenced by that
certificate for any purpose and as the person entitled to exercise the rights
attaching to the units so requested, despite any notice to the contrary.
LEGAL MATTERS
The
validity of the securities being offered by this prospectus will be passed upon
by Goodwin Procter LLP, Boston, Massachusetts.
EXPERTS
The consolidated
financial statements of Plug Power Inc. and subsidiaries as of December 31,
2010 and 2009, and for each of the years in the three-year period ended
December 31, 2010, and managements assessment of the effectiveness of internal
control over financial reporting as of December 31, 2010 have been incorporated
by reference herein and in the Registration Statement in reliance upon the
reports of KPMG LLP, independent registered public account firm, incorporated
by reference herein, and upon authority of said firm as experts in accounting
and auditing.
The audit report
covering the December 31, 2010 consolidated financial statements refers to a
change in the method of accounting for revenue arrangements with
multiple-deliverables entered into or substantially modified after January 1,
2010.
WHERE YOU CAN FIND
ADDITIONAL INFORMATION
This
prospectus is part of a registration statement that we have filed with the SEC.
Certain information in the registration statement has been omitted from this
prospectus in accordance with the rules of the SEC. We are a public
company and file proxy statements, annual, quarterly and special reports and
other information with the SEC. The registration statement, such reports and
other information can be inspected and copied at the Public Reference
Room of the SEC located at 100 F Street, N.E., Washington D.C. 20549.
Copies of such materials, including copies of all or any portion of the
registration statement, can be obtained from the Public Reference Room of
the SEC at prescribed rates. You can call the SEC at 1-800-SEC-0330 to obtain
information on the operation of the Public Reference Room. Such materials may
also be accessed electronically by means of the SECs home page on the
Internet
(www.sec.gov)
.
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The
SEC allows us to incorporate by reference the information we file with it,
which means that we can disclose important information to you by referring you
to those documents instead of having to repeat the information in this
prospectus. The information incorporated by reference is considered to be part
of this prospectus, and later information that we file with the SEC will
automatically update and supersede this information. We incorporate by
reference the documents listed below that we have filed with the SEC:
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our Annual Report on Form 10-K for the
year ended December 31, 2010, filed on March 31, 2011;
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our Current Report on Form 8-K filed
on February 2, 2011; and
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the section entitled
Description of Registrants Securities to be Registered contained in our
Registration Statement on Form 8-A, filed pursuant to Section 12(b) of the
Exchange Act on June 24, 2009.
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We also incorporate by reference into this prospectus
all documents (other than current reports furnished under Item 2.02 or
Item 7.01 of Form 8-K and exhibits filed on such form that are related to
such items) that are filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (i) after the date of the initial
filing of the registration statement of which this prospectus is a part and
prior to effectiveness of the registration statement, or (ii) after the
date of this prospectus until we sell all of the shares covered by this prospectus
or the sale of shares by us pursuant to this prospectus is terminated.
You
may access our Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q, Current Reports on Form 8-K and amendments to any of these
reports, free of charge on the SECs website. You may also access the documents
incorporated by reference on our website at
www.plugpower.com
. Other
than the foregoing documents incorporated by reference, the information
contained in, or that can be accessed through, our website is not part of this
prospectus.
In
addition, we will furnish without charge to each person, including any
beneficial owner, to whom a prospectus is delivered, on written or oral request
of such person, a copy of any or all of the documents incorporated by reference
in this prospectus (not including exhibits to such documents, unless such
exhibits are specifically incorporated by reference in this prospectus or into
such documents). Such requests may be directed to Corporate Secretary, Plug
Power Inc., 968 Albany-Shaker Road, Latham, New York, 12110, or call (518)
782-7700.
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