EXHIBIT 10.9
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED. IT MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED EXCEPT
PURSUANT TO A REGISTRATION STATEMENT IN EFFECT WITH RESPECT TO THE SECURITY
UNDER SUCH ACT OR AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER SUCH
ACT.
LLC INTEREST PURCHASE WARRANT
-----------------------------
Date of Issuance: February 16, 1999 Certificate No. ___
For value received, PLUG POWER, LLC, a Delaware limited liability company
(the "Company"), hereby grants to Xxxxxxx X. Xxxxxx, or his registered assigns
(the "Registered Holder"), the right to purchase from the Company, at the
Exercise Price therefor, 400,000 Shares of Class A Membership Interests of the
Company, as adjusted from time to time pursuant to Section 2 hereof (the
"Warrant Shares"). This Warrant is issued pursuant to the LLC Interest Purchase
Agreement. The Exercise Price and number of Warrant Shares (and the amount and
kind of other securities) for which this Warrant is exercisable shall be subject
to adjustment as provided herein. Certain capitalized terms used herein are
defined in Section 3 hereof.
This Warrant is subject to the following provisions:
SECTION 1. Exercise of Warrant.
-------------------
1A. Exercise Period. The purchase rights represented by this Warrant may
---------------
be exercised, in whole or in part, at any time and from time to time, following
the Date of Issuance until the earliest of (i) December 31, 2001, (ii) a
Qualifying Offering and (iv) 18 months after an initial public offering of the
Company's Shares of Class A Membership Interests other than a Qualifying
Offering (the "Exercise Period").
1B. Exercise Procedure.
------------------
(i) This Warrant shall be deemed to have been exercised when all of
the following items have been delivered to the Company (the "Exercise Time"):
(a) a completed Exercise Agreement, in substantially the form set
forth in Exhibit I hereto, executed by the Registered Holder;
(b) this Warrant; and
(c) a certified or bank check payable to the Company in an amount
equal to the Exercise Price multiplied by the number of Warrant Shares being
purchased upon such exercise (the "Aggregate Exercise Price").
------------------------
(ii) Certificates for Warrant Shares (including, without limitation,
fractional
shares) purchased upon exercise of this Warrant shall be delivered by the
Company to the Purchaser within seven business days after the date of the
Exercise Time together with any cash payable in lieu of a fraction of a share
pursuant to Section IC below. Unless this Warrant has expired or all of the
purchase rights represented hereby have been exercised, the Company shall
prepare a new Warrant, substantially identical hereto, representing the rights
formerly represented by this Warrant which have not expired or been exercised
and shall, within such seven-day period, deliver such new Warrant to the
Registered Holder.
(iii) The Warrant Shares issuable upon the exercise of this Warrant
shall be deemed to have been issued to the Registered Holder at the Exercise
Time.
(iv) The Company shall not close its books against the transfer of
this Warrant
of any Warrant Shares issued or issuable upon the exercise of this Warrant in
any manner which interferes with the timely exercise of this Warrant.
(v) Notwithstanding any other provision hereof, if an exercise of any
portion of this Warrant is to be made in connection with a public offering or a
Sale of the Company, then such exercise may at the election of the Registered
Holder be conditioned upon the consummation of such transaction, in which case
such exercise shall not be deemed to be effective until immediately prior to the
consummation of such transaction.
(vi) If the Warrant Shares issuable by reason of exercise of this
Warrant are convertible into or exchangeable for any other stock or securities,
then the Company shall, at the Registered Holder's option and upon surrender of
this Warrant by the Registered Holder as provided above together with any
notice, statement, payment and other requirement required to effect such
conversion or exchange of Warrant Shares, deliver to the Registered Holder a
certificate or certificates representing the stock or securities into which the
Warrant Shares issuable by reason of such conversion are convertible or
exchangeable.
1C. Fractional Shares. If a fractional share of a Warrant Share would, but
-----------------
for the provisions of Section 1A, be issuable upon exercise of the rights
represented by this Warrant, the Company may, but should not be required, in
lieu of such fractional share, within five business days after the date of the
Exercise Time, deliver to the Purchaser a check payable to the Purchaser in lieu
of such fractional share in an amount equal to the difference between the Fair
Market Value of such fractional share as of the date of the Exercise Time and
the Exercise Price of such fractional share.
SECTION 2. Adjustments: Notices.
--------------------
2A. Subdivision or Combination of Class A Membership Interests. If the
----------------------------------------------------------
Company at any time subdivides (by any share split, dividend, recapitalization
or otherwise) the Shares of Class A Membership Interests into a greater number
of shares or pays a dividend or makes a distribution to holders of the Shares of
Class A Membership Interests in the form of Shares of
2
Class A Membership Interests, then the Exercise Price in effect immediately
prior to such subdivision shall be proportionately reduced and the number of
Warrant Shares obtainable upon exercise of this Warrant (whether or not then
acquirable or subject to a contingency), as the case may be, shall be
proportionately increased. If the Company at any time combines (by reverse share
split or otherwise) the Shares of Class A Membership Interests into a smaller
number of shares, then the Exercise Price in effect immediately prior to such
combination shall be proportionately increased and the number of Warrant Shares
obtainable upon exercise of this Warrant (whether or not then acquirable or
subject to a contingency), as the case may be, shall be proportionately
decreased.
2B. Organic Change. Any recapitalization, reorganization,
--------------
reclassification, consolidation, merger, sale of all or substantially all of the
Company's assets or other transaction which is effected in such a way that
holders of Shares of Class A Membership Interests are entitled to receive
(either directly or upon subsequent liquidation) stock, securities or assets
with respect to or in exchange for Shares of Class A Membership Interests is
referred to herein as an "Organic Change." Prior to the consummation of any
--------------
Organic Change, the Company shall make appropriate provision (in form and
substance reasonably satisfactory to the Required Holders) to provide that the
Registered Holder shall have upon consummation thereof the right to acquire and
receive upon exercise hereof such shares of stock, securities or assets as may
be issued or payable with respect to or in exchange for the number of Warrant
Shares immediately theretofore acquirable and receivable upon exercise of such
Registered Holder's Warrants had such Organic Change not taken place.
2C. Notices.
-------
(i) Promptly upon any adjustment of the Exercise Price, the Company
shall give written notice thereof to the Registered Holder, setting forth in
reasonable detail and certifying the calculation of such adjustment.
(ii) The Company shall also give written notice to the Registered
Holder at least 30 days prior to the date on which any Organic Change or
Liquidity Event shall take place.
2D. Minimum Adjustment. No adjustment in the Exercise Price shall be made
------------------
if such adjustment is less than $0.01; provided, however , that any adjustments
which by reason of this Section 2D are not required to be made shall be carried
forward and taken into account in any subsequent adjustment.
SECTION 3. Definitions. The following terms have the meanings set forth
-----------
below:
"Affiliate" means, as applied to any Person, (i) any other Person directly
---------
or indirectly controlling, controlled by or under common control with, that
Person, (ii) any other Person that owns or controls 10% or more of any class of
equity securities (including any equity securities issuable upon the exercise of
any Option or the conversion or exchange of any
3
Convertible Securities) of that Person or any of its Affiliates, or (iii) any
member, director, partner, officer, agent, employee or relative of such Person
or any of its direct or indirect Affiliates. For the purposes of this
definition, "control" (including with correlative meanings, the terms
"controlling", "controlled by", and "under common control with") as applied to
any Person, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of that Person, whether
through ownership of voting securities or by contract or otherwise. With respect
to a natural person, the term "Affiliate" also shall include such person's
spouse and lineal descendants.
"Aggregate Exercise Price" has the meaning ascribed to it in Section 1B(i).
------------------------
"Class A Membership Interests" means the Class A Membership Interests of
----------------------------
the Company as defined in the Limited Liability Company Agreement.
"Convertible Securities" means any right, option or security exercisable
----------------------
for, or convertible or exchangeable into, Shares of Class A Membership
Interests.
"Date of Issuance" means the date the Company initially issues this Warrant
----------------
regardless of the number of times new certificates representing the unexpired
and unexercised rights formerly represented by this Warrant shall be issued.
"Exercise Period" has the meaning ascribed to it in Section 1A.
---------------
"Exercise Price" means $8.50 for each Warrant Share as such price may be
--------------
adjusted from time to time pursuant to Section 2 hereof.
"Exercise Time" has the meaning ascribed to it in Section 1B(i).
-------------
"Fair Market Value" means, as to any security, as of a particular date (i)
-----------------
the average of the closing sales prices on such date of such security on all
domestic securities exchanges on which such security is listed, or (ii) if there
have been no sales on any such exchange on any day, the average of the highest
bid and lowest asked prices on all such exchanges at the end of such day, or
(iii) if on any day such security is not so listed, the sales price for such
security as of 4:00 P.M., New York time, as reported on the Nasdaq Stock Market,
or (iv) if such security is not reported on the Nasdaq Stock Market, the average
of the representative bid and asked quotations for such security as of 4:00
P.M., New York time, as reported on the Nasdaq interdealer quotation system, or
any similar successor organization, in each such case averaged over a period of
21 trading days consisting of the day before "Fair Market Value" is being
determined and the immediately prior 20 trading days prior to such day during
which such security was traded. Notwithstanding the foregoing, if at any time of
determination such security is not registered pursuant to Section 12 of the
Securities Exchange Act of 1934, as amended, and either listed on a national
securities exchange or authorized for quotation in the Nasdaq Stock Market, then
Fair Market Value shall mean the price that would be paid per
4
share for the entire common equity interest in the issuer thereof in an orderly
sale transaction between a willing buyer and a willing seller, using valuation
techniques then prevailing in the securities industry and assuming full
disclosure of all relevant information and a reasonable period of time for
effectuating such sale, without discount for lack of liquidity, or minority
position. Fair Market Value shall be determined by the Company's Management
Committee in its good faith judgment.
"Liquidity Event" means (i) a liquidation, dissolution or winding-up of the
---------------
Company or (ii) a Sale of the Company.
"Limited Liability Company Agreement" means the Limited Liability Company
-----------------------------------
Agreement of the Company dated June 27, 1997, as amended.
"LLC Interest Purchase Agreement" means the LLC Interest Purchase
-------------------------------
Agreement, dated as of February 16, 1999, between the Company and Xxxxxxx
Xxxxxx, as such agreement may be amended, modified or restated from time to
time.
"Person" means any individual, corporation, joint stock corporation,
------
limited liability company or partnership, general partnership, limited
partnership, proprietorship, joint venture, other business organization, trust,
union, association or governmental or regulatory authority.
"Qualifying Offering" means the consummation of an initial underwritten
-------------------
public offering of Shares of Class A Membership Interests registered under the
Securities Act of 1933, as amended, pursuant to which the Shares of Class A
Membership Interests are sold at a price per share of at least $8.50 (subject to
appropriate adjustment for share splits, reverse share splits, share dividends,
recapitalizations, reclassifications and similar events).
"Sale of the Company" means the sale of the Company (whether by merger,
-------------------
consolidation, recapitalization, reorganization, sale of securities, sale of
assets or otherwise) in one transaction or a series of related transactions to a
Person or Persons, pursuant to which such Person or Persons (together with its
Affiliates) acquires (i) securities representing at least a majority of the
voting power of all securities of the Company, assuming the conversion, exchange
or exercise of all securities convertible, exchangeable or exercisable for or
into voting securities, or (ii) a material portion of the Company's consolidated
assets other than in the ordinary course of business.
"Shares" means units of Class A Membership Interests.
------
"Warrant Shares" has the meaning ascribed thereto in the first paragraph of
--------------
this Warrant; provided, that if the securities issuable upon exercise of the
Warrants are issued by an entity other than the Company or there is a change in
the class of securities so issuable, then the term "Warrant Shares" shall mean
shares of the security issuable upon exercise of the Warrants if such security
is issuable in shares, or shall mean the equivalent units in which such
5
security is issuable if such security is not issuable in shares.
SECTION 4. No Voting Rights: Limitations of Liability. This Warrant shall
------------------------------------------
not entitle the Registered Holder hereof to any voting rights or other rights as
a member of the Company. No provision hereof, in the absence of affirmative
action by the Registered Holder to purchase Warrant Shares, and no enumeration
herein of the rights or privileges of the Registered Holder shall give rise to
any liability of such Registered Holder for the Exercise Price of Warrant Shares
acquirable by exercise hereof or as a stockholder of the Company.
SECTION 5. Restrictions. The Registered Holder agrees that it will not
------------
sell, transfer or otherwise dispose of this Warrant or any Warrant Shares, in
whole or in part, except pursuant to an effective registration statement under
the Securities Act of 1933, as amended, or an exemption from registration
thereunder and then only in accordance with the terms of the Limited Liability
Company Agreement. Each certificate evidencing Warrant Shares and each Warrant
issued upon such transfer shall bear the restrictive legend required by the LLC
Interest Purchase Agreement. The Company may require, as a condition of allowing
the transfer or exchange of this Warrant, that the Registered Holder furnish to
the Company an opinion of counsel reasonably acceptable to the Company to the
effect that such transfer or exchange is permitted under the Securities Act of
1933, as amended, and applicable state securities laws.
SECTION 6. Warrant Exchangeable for Different Denominations. This Warrant
------------------------------------------------
is exchangeable, upon the surrender hereof by the Registered Holder at the
principal office of the Company, for new Warrants of like tenor representing in
the aggregate the purchase rights hereunder, and each of such new Warrants shall
represent such portion of such rights as is designated by the Registered Holder
at the time of such surrender. All Warrants representing portions of the rights
hereunder are also referred to herein as "Warrants."
SECTION 7. Replacement. Upon receipt of evidence reasonably satisfactory to
-----------
the Company (an affidavit of the Registered Holder shall be satisfactory) of the
ownership and the loss, theft, destruction or mutilation of any certificate
evidencing this Warrant, and in the case of any such loss, theft or destruction,
upon receipt of indemnity reasonably satisfactory to the Company or, in the case
of any such mutilation upon surrender of such certificate, the Company shall
execute and deliver in lieu of such certificate a new certificate of like kind
representing the same rights represented by such lost, stolen, destroyed or
mutilated certificate and dated the date of such lost, stolen, destroyed or
mutilated certificate.
SECTION 8. Notices. Except as otherwise expressly provided herein, all
-------
notices and deliveries-referred to in this Warrant shall be in writing, shall be
delivered personally, sent by registered or certified mail, return receipt
requested and postage prepaid or sent via nationally recognized overnight
courier or via facsimile, and shall be deemed to have been given when so
delivered (or when received, if delivered by any other method) if sent (i) to
the Company, at its principal executive offices and (ii) to a Registered Holder,
at such Registered Holder's
6
address as it appears in the records of the Company (unless otherwise indicated
by any such Registered Holder).
SECTION 9. Amendment and Waiver. Except as otherwise provided herein, the
--------------------
provisions of this Warrant may be amended and the Company may take any action
herein prohibited, or omit to perform any act herein required to be performed by
it, only if the Company has obtained the prior written consent of the Registered
Holder.
SECTION 10. Warrant Register. The Company shall maintain at its principal
----------------
executive offices books for the registration and the registration of transfer of
Warrants. The Company may deem and treat the Registered Holder as the absolute
owner hereof (notwithstanding any notation of ownership or other writing thereon
made by anyone) for all purposes and shall not be affected by any notice to the
contrary.
SECTION 11. Descriptive Headings, Governing Law. The descriptive headings
-----------------------------------
of the several Sections and paragraphs of this Warrant are inserted for
convenience only and do not constitute a part of this Warrant. THE CORPORATION
LAWS OF THE STATE OF DELAWARE SHALL GOVERN ALL ISSUES CONCERNING THE RELATIVE
RIGHTS OF THE COMPANY AND ITS STOCKHOLDERS. ALL OTHER QUESTIONS CONCERNING THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE DOMESTIC
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK.
7
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and
attested by its duly authorized officers under its corporate seal and to be
dated as of the date hereof.
PLUG POWER, LLC
By: /s/ Xxxx Xxxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxxx
Title: President and CEO
Attest:
/s/ Xxx Xxxxx Xxxxxxx
------------------------------
Name: Xxx-Xxxxx Xxxxxxx
Title: General Counsel
AMENDMENT NO. 1 TO LLC INTEREST
PURCHASE WARRANT
This amendment ("Amendment") is entered into as of July 26, 1999 between
Plug Power, LLC, a Delaware limited liability company (the "Company"), and
Xxxxxxx X. Xxxxxx ("Holder").
WHEREAS, the Company and Holder are parties to an LLC Interest Purchase
Warrant dated February 16, 1999 (the "Existing Warrant"); and
WHEREAS, the Company and Holder desire to amend the Existing Warrant as
provided herein.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. The Existing Warrant is hereby amended by adding a new Section 1D,
which shall immediately follow Section 1C, and which shall read in its entirety
as follows:
1D. Automatic Exercise. Notwithstanding any provision in this
------------------
Warrant to the contrary, in the event of the consummation of an
initial underwritten public offering of Shares of Class A Membership
Interests (or shares of common stock issued in exchange for Class A
Membership Interests in any merger, recapitalization or similar
transaction) registered under the Securities Act of 1933, as amended,
pursuant to which the Shares of Class A Membership Interests or shares
of common stock, as the case may be, are sold at a price to the public
of at least $8.50 per share (subject to appropriate adjustment for
share splits, reverse share splits, share dividends,
recapitalizations, reclassifications and similar events), then (i)
this Warrant shall be automatically exercised in full immediately
prior to the consummation of such offering, (ii) the Exercise Time
shall be deemed to occur immediately prior to the consummation of such
offering and (iii) Holder shall deliver to the Company at the Exercise
Time a completed Exercise Agreement, this Warrant and a certified or
bank check payable to the Company in an amount equal to the Exercise
Price multiplied by the total number of Warrant Shares.
2. Except as amended hereby, the Existing Warrant shall remain in full
force and effect in accordance with its terms.
3. Capitalized terms used but not defined herein shall have the meanings
ascribed thereto in the Existing Warrant.
4. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same document.
PLUG POWER, LLC
By: /s/ Xxxx Xxxxxxxxx
-----------------------------------------
Xxxx Xxxxxxxxx, President and Chief
Executive Officer
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxx
