UNITED STATES
SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
FORM 8-A/A
(Amendment No. 5)
FOR REGISTRATION OF
CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION
12(b) OR (g) OF THE
SECURITIES EXCHANGE
ACT OF 1934
PLUG POWER INC.
(Exact name of
registrant as specified in charter)
Delaware
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22-3672377
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(State or other jurisdiction
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(IRS Employer
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of incorporation)
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Identification No.)
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968 Albany Shaker
Road,
Latham, New York
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12110
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(Address of principal executive offices)
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(Zip Code)
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Securities to be registered pursuant to Section 12(b) of the
Act:
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Name of each exchange
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Title of each class
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on
which each
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to be so registered
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class
is to be registered
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Preferred Stock Purchase Rights
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The
NASDAQ Stock Market LLC
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If this Form
relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box.
x
If this Form
relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box.
¨
Securities Act
registration statement file number to which this form relates: Not applicable.
Securities to be registered pursuant to Section 12(g) of the
Act: None
EXPLANATORY NOTE
This Amendment No. 5 to Form 8-A
amends and supplements the Registration Statement on Form 8-A filed by Plug
Power Inc., a Delaware corporation (the
Company
), with the Securities
and Exchange Commission (the
SEC
) on June 24, 2009, as amended by the
Amendment No. 1 to Form 8-A filed by the Company with the SEC on May 6, 2011,
the Amendment No. 2 to Form 8-A filed by the Company with the SEC on March 19,
2012, the Amendment No. 3 to Form 8-A filed by the Company with the SEC on
March 26, 2012 and the Amendment No. 4 to Form 8-A filed by the Company with
the SEC on February 13, 2013 (including the exhibits thereto, the
Form 8-A
).
Capitalized terms used without definition herein shall have the meaning set
forth in the Shareholder Rights Agreement, dated June 23, 2009 (as amended, the
Rights Agreement
), between the Company and Broadridge Corporate Issuer
Solutions, Inc. (
Broadridge
), as rights agent.
Item 1.
Description of
Registrants Securities to be Registered
.
Item 1 of the Form 8-A is amended
and supplemented by adding the following:
Amendment to Rights Agreement
On May 8, 2013, the
Board of Directors of the Company approved an Amendment No. 5 to Shareholder Rights
Agreement (the
Amendment No. 5
). The Amendment No. 5 amends the
definition of Acquiring Person to allow Air Liquide Investissements d'Avenir
et de Demonstration (
Air Liquide
) to acquire, under the Securities
Purchase Agreement, dated May 8, 2013, by and between the Company and Air
Liquide (the
Purchase Agreement
), shares of the Companys Series C
Redeemable Convertible Preferred Stock, par value $0.01 per share (
Series C
Preferred Stock
), as well as the shares of the Companys outstanding
common stock, par value $0.01 per share (
Common Stock
) issuable upon
conversion thereof and any dividends payable or paid-in-kind, without
triggering the rights under the Rights Agreement. If Air Liquide becomes the
beneficial owner of 15% or more of the shares of Common Stock and at such time
Air Liquide is or is deemed to be the beneficial owner of any shares of Common
Stock other than by virtue of owning shares of Series C Preferred Stock and any
shares of Common Stock acquired upon conversion thereof or any dividends
payable or paid-in-kind, then Air Liquide will be deemed an Acquiring Person
under the Rights Agreement.
Miscellaneous
The Rights Agreement, the Amendment No. 1 to Shareholder Rights Agreement,
the Amendment No. 2 to Shareholder Rights Agreement, the Amendment No. 3 to
Shareholder Rights Agreement, the Amendment No. 4 to Shareholder Rights
Agreement and the Amendment No. 5 to Shareholder Rights Agreement are filed as
Exhibits 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6 respectively, to this Amendment No. 5
to Form 8-A and are incorporated herein by reference. The above description of
the material terms of the Amendment No. 5 as they relate to the Rights
Agreement is qualified in its entirety by reference to such exhibits.
2
Item 2.
Exhibits
.
Exhibit No.
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Description
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3.1
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Certificate of Designations, Preferences and
Rights of a Series of Preferred Stock of Plug Power Inc. classifying and
designating the Series A Junior Participating Cumulative Preferred Stock
(incorporated by reference to Exhibit 3.1 from the Companys Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on June
24, 2009).
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4.1
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Shareholder Rights Agreement, dated as of June
23, 2009, between Plug Power Inc. and American Stock Transfer & Trust
Company LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 from the
Companys Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on June 24, 2009).
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4.2
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Amendment No. 1, effective as of May 6, 2011, to Shareholder Rights Agreement by and between Plug Power
Inc. and American Stock Transfer & Trust Company LLC, as Rights Agent
(incorporated by reference to Exhibit 4.1 from the Companys Current Report on Form 8-K filed with
the SEC on May 6, 2011).
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4.3
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Amendment No. 2, effective as of March 16, 2012, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on March 19, 2012).
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4.4
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Amendment No. 3, effective as of March 23, 2012, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on March 26, 2012).
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4.5
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Amendment No. 4, effective as of February 12, 2013, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on February 13, 2013)
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4.6
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Amendment No. 5, effective as of May 8, 2013, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on May 8, 2013)
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3
SIGNATURE
Pursuant to the
requirements of Section 12 of the Securities Exchange Act of 1934, the
registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
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Plug Power Inc.
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Date: May 20, 2013
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By:
/s/
Gerard L. Conway, Jr.
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Name: Gerard L. Conway, Jr.
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Title: General Counsel and Corporate Secretary
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4
EXHIBIT INDEX
Exhibit No.
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Description
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3.1
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Certificate of Designations, Preferences and
Rights of a Series of Preferred Stock of Plug Power Inc. classifying and
designating the Series A Junior Participating Cumulative Preferred Stock
(incorporated by reference to Exhibit 3.1 from the Companys Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on June
24, 2009).
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4.1
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Shareholder Rights Agreement, dated as of June
23, 2009, between Plug Power Inc. and American Stock Transfer & Trust
Company LLC, as Rights Agent (incorporated by reference to Exhibit 4.1 from the
Companys Registration Statement on Form 8-A filed with the Securities and
Exchange Commission on June 24, 2009).
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4.2
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Amendment No. 1, effective as of May 6, 2011, to Shareholder Rights Agreement by and between Plug Power
Inc. and American Stock Transfer & Trust Company LLC, as Rights Agent
(incorporated by reference to Exhibit 4.1 from the Companys Current Report on Form 8-K filed with
the SEC on May 6, 2011).
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4.3
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Amendment No. 2, effective as of March 16, 2012, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on March 19, 2012).
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4.4
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Amendment No. 3, effective as of March 23, 2012, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on March 26, 2012).
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4.5
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Amendment No. 4, effective as of February 12, 2013, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on February 13, 2013)
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4.6
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Amendment No. 5, effective as of May 8, 2013, to Shareholder Rights Agreement by and between Plug Power
Inc. and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference to
Exhibit 4.1 from the Companys Current
Report on Form 8-K filed with the SEC on May 8, 2013)
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