EXHIBIT A
EXCHANGE AGREEMENT
EXCHANGE AGREEMENT, dated December 20, 2002 (the "Agreement"), by and
between FIRST ALBANY COMPANIES INC., a New York corporation ("FAC"), and
MECHANICAL TECHNOLOGY INCORPORATED, a New York corporation ("MTI").
WHEREAS, FAC and MTI wish to exchange 8,000,000 shares of common stock,
par value $1.00 per share, of MTI owned by FAC (the "MTI Shares") for 2,721,088
shares of common stock, par value $.01 per share, of Plug Power Inc., a Delaware
corporation ("Plug Power"), owned by MTI (the "Plug Power Shares") on the terms
set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, in reliance upon the
representations and warranties contained being made herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
I. Exchange of Shares
A. Exchange. Upon the terms of this Agreement and in reliance
upon the representations and warranties being made to it
herein by the other party hereto, FAC is hereby assigning,
transferring and delivering the MTI Shares to MTI, in exchange
for the Plug Power Shares, and MTI is hereby assigning,
transferring and delivering the Plug Power Shares to FAC, in
exchange for the MTI Shares, in each case free and clear of
all claims, liens, options, charges, agreements, encumbrances
and security interests of whatsoever nature ("Encumbrances").
B. Delivery of Certificate. Simultaneously with the execution
hereof, the certificates representing the MTI Shares are being
delivered by FAC to MTI, duly endorsed to MTI or with executed
stock powers attached, and the certificates representing the
Plug Power Shares are being delivered by MTI to FAC, duly
endorsed to FAC or with executed stock powers attached.
II. Representation and Warranties of FAC.
FAC hereby represents and warrants to MTI that:
1. Authorization. FAC has full corporate power and authority to
enter into and consummate the transactions contemplated by
this Agreement, and this Agreement has been duly authorized by
all necessary corporate action on the part of FAC and has been
approved by its Board of Directors.
2. Execution; Binding Obligation. This Agreement has been duly
executed and delivered by FAC and constitutes a legal, valid
and binding obligation of FAC enforceable in accordance with
its terms, except that enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws
concerning the rights of creditors generally and by general
equity principles.
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3. Delivery of Title. FAC is the holder of record and the sole
beneficial owner of the MTI Shares and, in exchange for the
Plug Power Shares in accordance with the provisions of this
Agreement, FAC is assigning, transferring and delivering the
MTI Shares to MTI, free and clear of all Encumbrances.
4. No Violation. Neither the execution of this Agreement nor the
consummation by FAC of the transactions contemplated hereby
will (i) result in a violation or breach of, or a conflict
with, the organizational or governing instruments of FAC or
any agreement, instrument, contract or commitment to which FAC
is a party or any order, statute, rule, judgment or
governmental regulation applicable to FAC or (ii) require the
approval or consent of, or any filing with, any party or
governmental authority.
5. No Knowledge. FAC is not aware of any facts material to the
business, results of operations, assets, liabilities or
financial condition of Plug Power or MTI that are not
contained in the filings with the Securities and Exchange
Commission (the "SEC") of Plug Power or MTI, and it has no
knowledge of a material change in the business or prospects of
either Plug Power or MTI since the date of each company's most
recent quarterly report on Form 10-Q filed with the SEC.
III. Representations and Warranties of MTI.
MTI represents and warrants to FAC that:
1. Authorization. MTI has full corporate power and authority to
enter into and consummate the transactions contemplated by
this Agreement and this Agreement has been duly authorized by
all necessary corporate action on the part of MTI and has been
approved by its Board of Directors in accordance with Section
713 of the Business Corporation Law of the State of New York.
2. Execution; Binding Obligation. This Agreement has been duly
executed and delivered by MTI and constitutes a legal, valid
and binding obligation of MTI enforceable in accordance with
its terms, except that enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws
concerning the right of creditors generally and by general
equity principles.
3. Delivery of Title. MTI is the holder of record and the sole
beneficial owner of the Plug Power Shares and, in exchange for
the MTI Shares in accordance with the provisions of this
Agreement, MTI is assigning, transferring and delivering the
Plug Power Shares to FAC, free and clear of all Encumbrances.
4. No Violation. Neither the execution of this Agreement nor the
consummation by MTI of the transactions contemplated hereby
will (i) result in a violation or breach of, or a conflict
with, the organization or governing instruments of MTI or any
agreement, instrument, contract or commitment to which MTI is
a party or any order, statute, rule, judgment or governmental
regulation applicable to MTI or (ii) require the approval or
consent of, or any filing with, any party or governmental
authority.
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5. No Knowledge. MTI is not aware of any facts material to the
business, results of operations, assets, liabilities or
financial condition of Plug Power or MTI that are not
contained in the filings with the Securities and Exchange
Commission (the "SEC") of Plug Power or MTI, and there has
been no material change in the business or prospects of MTI,
nor does it have any knowledge of a material change in the
business or prospects of Plug Power, since the date of each
company's most recent quarterly report on Form 10-Q filed with
the SEC.
IV. Miscellaneous.
1. Public Announcements. FAC and MTI agree that they shall issue
a mutually agreeable press release following the consummation
of the transactions contemplated by this Agreement. FAC and
MTI also agree that neither will, nor will their respective
agents, make any other public announcement with respect to
this Agreement or the transactions contemplated hereby, except
as required by applicable law, and no such public announcement
shall be made without the prior consent of the other party.
2. Expenses. Each party hereto will bear its own expenses in
connection with the transactions contemplated by this
Agreement.
3. Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York without
regard to its principles of conflicts of law.
4. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, and all of
which shall constitute one and the same document.
5. Entire Agreement, Etc. This Agreement (i) constitutes the
entire understanding of the parties hereto as the subject
matter hereof and supercedes any prior understanding or
agreement, (ii) will be binding upon, inure to the benefit of,
and be enforceable by, the parties hereto, their respective
successors and permitted assigns and (iii) shall not be
assignable without the written consent of the parties hereto.
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IN WITNESS WHEREOF, the duly authorized officers of FAC and MTI have
executed this Agreement as of the date first above written.
FIRST ALBANY COMPANIES INC.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: Senior Vice President and
Chief Investment Officer
MECHANICAL TECHNOLOGY INCORPORATED
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and
Chief Financial Officer
Agt.983
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