EXHIBIT H Registration Rights Agreement
EXHIBIT H
This REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of June 29, 2006 by and
between Plug Power Inc., a Delaware corporation (the “Company”), and Smart Hydrogen Inc., a BVI
Business Company incorporated under the laws of the British Virgin Islands (“Initial Holder”), each
of which is sometimes referred to herein as a “Party” and collectively as the “Parties.”
RECITALS
WHEREAS, pursuant to that certain Stock Purchase Agreement dated as of April 10, 2006, by and
between the Company and Initial Holder (the “Stock Purchase Agreement”), Initial Holder shall
acquire shares (the “Shares”) of the Company’s Class B Capital Stock, a series of preferred stock,
$0.01 par value per share (“Class B Capital Stock”); and
WHEREAS, in connection with Initial Holder’s investment pursuant to the Stock Purchase
Agreement, the Company agreed to provide certain rights to Initial Holder to cause the resale of
the shares of Common Stock of the Company, $.01 par value per share (the “Common Stock”), issuable
upon conversion of the Shares to be registered pursuant to the Securities Act (as defined below);
and
WHEREAS, the Parties desire to set forth their rights and obligations relating to the
registration of the resale of the Registrable Securities (as defined below) pursuant to the
Securities Act;
AGREEMENT
NOW, THEREFORE, in consideration of the purchase of the Shares by Initial Holder pursuant to
the Stock Purchase Agreement, and for other good consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties, intending to be legally bound, hereby agree as follows:
1. Definitions. As used in this Agreement the following capitalized terms shall have the
following meanings. Capitalized terms used and not defined herein shall have the respective
meanings ascribed to them in the Stock Purchase Agreement:
“Affiliate” shall have the meaning set forth in the Stock Purchase Agreement.
“Agreement” shall have the meaning set forth in the recitals to this Agreement.
“Business Day” shall have the meaning set forth in the Stock Purchase Agreement.
“Chairperson” shall have the meaning set forth in Section 23.1 hereof.
“Charter” shall mean the Company’s Amended and Restated Certificate of Incorporation in effect
as of the date hereof, including the Certificate of Designations creating the Class B Capital
Stock, as amended from time to time.
“Class B Capital Stock” shall have the meaning set forth in the recitals of this Agreement.
“Class B Period” shall have the meaning set forth in the Charter.
“Common Stock” shall have the meaning set forth in the recitals of this Agreement.
“Company” shall have the meaning set forth in the recitals of this Agreement.
“Company Offering” shall have the meaning set forth in Section 4.4 hereof.
“Dispute” shall have the meaning set forth in Section 23.1 hereof.
“Disputing Party” shall have the meaning set forth in Section 23.1 hereof.
“Effectiveness Period” shall mean the period of time commencing on the Resale Shelf Date and
ending on the Termination Date.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Fair Market Value” shall mean the average of the per share closing price, or the closing
sales bid if no sales were reported, of the Common Stock as quoted by the NASDAQ National Market
for the ten (10) consecutive trading days immediately preceding the date of calculation or if there
are no sales or bids for such date, then the average of the ten (10) preceding consecutive trading
days for such sales or bids as reported in The Wall Street Journal or similar publication.
“Holder” shall mean Initial Holder and any subsequent transferee of Registrable Securities as
permitted by Section 10, at such times as such Persons shall own Registrable Securities.
“Indemnitee” shall have the meaning set forth in Section 9 hereof.
“Initial Holder” shall have the meaning assigned to such term in the first paragraph of this
Agreement.
“Initiating Holders” shall have the meaning set forth in Section 3.1 hereof.
“Investor Rights Agreement” shall mean that certain Investor Rights Agreement, dated as of the
date hereof, by and among the Company, the Initial Holder and certain Affiliates of the Initial
Holder named therein.
“NASD” shall mean the National Association of Securities Dealers, Inc.
“NASDAQ” shall mean the National Association of Securities Dealers Automated Quotations.
“Non-Initiating Holders” shall have the meaning set forth in Section 3.1 hereof.
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“Offering Blackout Period” shall have the meaning set forth in Section 4.4 hereof.
“Person” shall have the meaning set forth in the Stock Purchase Agreement.
“Prior Registrable Securities” shall have the meaning set forth in Section 3.7 hereof.
“Prospectus” shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, as amended or supplemented by any prospectus supplement with respect to the
terms of the offering of any portion of the Registrable Securities covered by such Registration
Statement, and by all other amendments and supplements to such prospectus, including post-effective
amendments, and in each case including all material incorporated by reference therein and excluding
all “free writing prospectuses” as defined in Rule 405 of the Securities Act.
“Registrable Securities” shall mean all shares of Common Stock issued or issuable upon
conversion of the Shares and any shares of Common Stock or other securities issued or issuable in
respect of Registrable Securities by way of spin-off, dividend, distribution, stock split or in
connection with a combination of shares, reclassification, merger, consolidation or reorganization;
provided, however, that Registrable Securities shall not include (i) any securities
for which a Registration Statement relating to the sale thereof has become effective under the
Securities Act and which have been disposed of under such Registration Statement, (ii) any
securities sold pursuant to Rule 144, or (iii) any securities held by a person whose registration
rights pursuant to this Agreement have terminated pursuant to Section 7.
“Registration Expenses” shall mean any and all expenses incident to the performance of or
compliance with this Agreement, including without limitation: (a) all registration, federal and
state filing, and qualification fees and expenses; (b) all fees and expenses associated with a
required listing of the Registrable Securities on any securities exchange; (c) fees and expenses
with respect to filings required to be made with the NASDAQ or the NASD; (d) fees and expenses of
compliance with securities or “blue sky” laws (including reasonable fees and disbursements of
counsel for the underwriters or holders of securities in connection with blue sky qualifications of
the securities and determination of their eligibility for investment under the laws of such
jurisdictions); (e) printing expenses, messenger, telephone and delivery expenses; (f) fees and
disbursements of counsel for the Company and customary fees and expenses for independent certified
public accountants retained by the Company (including the expenses of any comfort letters, or costs
associated with the delivery by independent certified public accountants of a comfort letter or
comfort letters, if such comfort letter or comfort letters is required by the managing
underwriter); and (g) the fees and expenses of any Person, including special experts, retained by
the Company; provided, however, that Registration Expenses shall not include any
underwriting fees, discounts, or commissions attributable to the sale of such Registrable
Securities, or any legal fees and expenses of counsel to any Holder and any underwriter engaged in
connection with an Underwritten Demand Statement.
“Registration Statement” shall mean any registration statement of the Company which covers the
resale of any of the Registrable Securities under the Securities Act on an appropriate form, and
all amendments and supplements to such registration statement, including post-
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effective amendments, in each case including the Prospectus contained therein, all exhibits
thereto and all materials incorporated by reference.
“Resale Shelf Date” shall have the meaning set forth in Section 2.1 hereof.
“Resale Shelf Registration Statement” shall have the meaning set forth in Section 2.1
hereof.
“Rule 144” means Rule 144 under the Securities Act (or any successor provision).
“Rules” shall have the meaning set forth in Section 23.1 hereof.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
“Selling Holder” shall mean, with respect to a specified Registration Statement pursuant
to this Agreement, Holders whose Registrable Securities are included in such registration.
“Shares” shall have the meaning set forth in the recitals of this Agreement.
“Suspension Event” shall have the meaning set forth in Section 4.3 hereof.
“Suspension Event Certificate” shall have the meaning set forth in Section 4.3 hereof.
“Termination Date” shall mean the earlier of (a) the date on which the registration rights of
all Persons pursuant to this Agreement have terminated pursuant to Section 7 or (b) the
date the Company is acquired in a transaction approved by the Company’s Board of Directors
(including, without limitation, through a merger, consolidation, stock purchase, or sale of all or
substantially all of the Company’s assets).
“Tribunal” shall have the meaning set forth in Section 23.1 hereof.
“Underwritten Demand Notice” shall have the meaning set forth in Section 3.1 hereof.
“Underwritten Demand Shares” shall have the meaning set forth in Section 3.1 hereof.
“Underwritten Demand Statement” shall have the meaning set forth in Section 3.1
hereof.
“WKSI” shall mean a well-known seasoned issuer as defined under Rule 405 of the Securities
Act.
2. Resale Shelf Registration Rights.
2.1 Registration Statement Covering Resale of Registrable Securities. Prior
to date that is eighteen (18) months after the Closing Date (the “Resale Shelf Date”), the
Company shall file with the SEC a shelf registration statement on Form S-3
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pursuant to Rule 415 under the Securities Act covering all of the Registrable
Securities registering the resale on a delayed or continuous basis of all such Registrable
Securities by the Holders (a “Resale Shelf Registration Statement”). The Resale Shelf
Registration Statement shall be filed on Form S-3, and if the Company is eligible as a
WKSI, the Resale Shelf Registration Statement shall utilize the automatic shelf
registration process under Rule 415 and Rule 462 under the Securities Act. If the Company
is not a WKSI or is otherwise ineligible to utilize the automatic shelf registration
process, then the Company shall use its commercially reasonable efforts to have the Resale
Shelf Registration Statement declared effective under the Securities Act prior to the
Resale Shelf Date and as expeditiously as reasonably practicable following the filing of
the Resale Shelf Registration Statement. The Company agrees to use its commercially
reasonable efforts to maintain the effectiveness of the Resale Shelf Registration
Statement, including by filing any necessary post-effective amendments and prospectus
supplements during the Effectiveness Period; provided that the effectiveness of the
Resale Shelf Registration Statement need not be maintained for the purposes of registering
the resale of securities that no longer constitute Registrable Securities or at any time
when the Company is not eligible to file a registration statement on Form S-3 (or any
similar or successor form) for the purpose of registering the resale of the Registrable
Securities. If, during the Effectiveness Period, the Company becomes eligible to file a
registration statement on Form S-3 (or any similar or successor form) for the purpose of
registering the resale of the Registrable Securities at any time when a Resale Shelf
Registration Statement is not effective, the Company, shall promptly file a Resale Shelf
Registration Statement and use commercially reasonable efforts to have such Resale
Registration Statement become effective in accordance with the procedures described above.
2.2 Notification and Distribution of Materials. The Company shall notify the
Holders in writing of the effectiveness of the Resale Shelf Registration Statement and
shall furnish to the Holders, without charge, such number of copies of the Resale Shelf
Registration Statement (including any amendments, supplements and exhibits), the Prospectus
contained therein (including each preliminary prospectus and all related amendments and
supplements) and any documents incorporated by reference in the Resale Shelf Registration
Statement or such other documents as the Holders may reasonably request in order to
facilitate the sale of the Registrable Securities in the manner described in the Resale
Shelf Registration Statement.
2.3 Amendments and Supplements. Subject to the provisions of Section
2.1 above, the Company shall promptly prepare and file with the SEC from time to time
such amendments and supplements to the Resale Shelf Registration Statement and Prospectus
used in connection therewith as may be necessary to keep the Resale Shelf Registration
Statement effective and to comply with the provisions of the Securities Act with respect to
the disposition of all the Registrable Securities during the Effectiveness Period.
2.4 Notice of Certain Events. The Company shall promptly notify the Holders
in writing of any request by the SEC for any amendment or supplement to, or additional
information in connection with, the Resale Shelf Registration Statement
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required to be prepared and filed hereunder (or Prospectus relating thereto). The
Company shall promptly notify each Holder in writing of the filing of the Resale Shelf
Registration Statement or any Prospectus, amendment or supplement related thereto or any
post-effective amendment to the Resale Shelf Registration Statement and the effectiveness
of any post-effective amendment.
3. Underwritten Offering Rights.
3.1 Subject to the conditions set forth in this Agreement, the Company shall, at the
written request of any Holder or Holders (the “Initiating Holders”) to sell in an
underwritten offering at any time during the Effectiveness Period that number of
Registrable Securities with an aggregate Fair Market Value of not less than $5,000,000 as
of the date of such request (or any lesser aggregate amount if such request is with respect
to all to the Registrable Securities of such Initiating Holder(s) under this Agreement) (an
“Underwritten Demand Notice”), cause to be prepared and filed as soon as reasonably
practicable after the date of such Underwritten Demand Notice (and in any event within 45
days of such Underwritten Demand Notice, provided that, in the event that there are any
Non-Initiating Holders, such filing shall not occur prior to the date that is 10 days after
the date on which the Company provides notice to the Non-Initiating Holders of the receipt
of the Underwritten Demand Notice) either:
(a) in the event that the Resale Shelf Registration Statement has not been
declared effective, is not currently effective, or ceases to be usable and the
Company is not eligible to file a registration statement on Form S-3 (or any similar
or successor form) for the purpose of registering the resale of the Registrable
Securities, a registration statement; or
(b) a (1) supplement to the Prospectus contained in the Resale Shelf
Registration Statement, (2) post-effective amendment to the Resale Shelf
Registration Statement, or (3) Form 8-K incorporated by reference into the Resale
Shelf Registration Statement in accordance with the rules under the Securities Act
(or such other rule as is applicable to the proposed sale);
(each document referred to in clauses (a) and (b) is referred to as an “Underwritten Demand
Statement”), in each case covering all the Registrable Securities requested to be included
in such underwritten offering by the Initiating Holders, plus the Registrable
Securities requested to be included in such underwritten offering by the Holders, if any,
other than the Initiating Holders (the “Non-Initiating Holders”) in a notice received by
the Company within 10 days of the date on which the Company provides notice to the
Non-Initiating Holders of the receipt of the Underwritten Demand Notice, less any
such Registrable Securities subsequently withdrawn from such underwritten offering by a
Holder or as a result of reductions in accordance with Section 3.7 below (such
total number of Registrable Securities being referred to herein as the “Underwritten Demand
Shares”); provided, however, that the Company shall not be required to
effect an Underwritten Demand Statement pursuant to a request under this Section
3.1 more than 5 times for the Holders of Registrable Securities collectively; and
provided, further, that no Holder shall be entitled to demand an
Underwritten Demand Statement during a
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Suspension Event or Offering Blackout Period. An Underwritten Demand Statement shall be
deemed to have been effected, for the purposes of the number of requests that may be made
by the Holders, upon the earlier of (x) the date as of which all of the Underwritten Demand
Shares shall have been disposed of pursuant to the Underwritten Demand Statement and (y)
the 90th day following the later of (A) the filing of a preliminary prospectus
with the SEC covering all of the Underwritten Demand Shares for sale in accordance with the
method of disposition specified by the Initiating Holders or (B) the effectiveness of the
registration statement registering the sale of all of the Underwritten Demand Shares for
sale in accordance with the method of disposition specified by the Initiating Holders
unless, with respect to this clause (y), during such 90-day period there was a Suspension
Event or the Company delivered a notice pursuant to Section 4.2 prior to the sale
of 75% of the Underwritten Demand Shares covered or registered thereby and the Holders of a
majority of the Underwritten Demand Shares, within 2 Business Days after the occurrence of
a Suspension Event or the delivery of a notice from the Company pursuant to Section
4.2, determine to terminate the offering and provide written notice thereof to the
Company. Additionally, an Underwritten Demand Statement shall be deemed to be have been
effected, in the event that, upon the request of the Initiating Holders, the Company files
a registration statement to register the sale of all of the Underwritten Demand Shares for
sale in accordance with the method of disposition specified by the Initiating Holders, but
such registration statement does not become effective thereafter solely by reason of the
refusal of the Holders to proceed with an underwritten offering thereunder unless such
refusal occurs, and notice of such refusal is provided to the Company, within 2 Business
Days after the occurrence of a Suspension Event or the delivery of a notice from the
Company pursuant to Section 4.2. Within 5 days following its receipt of an
Underwritten Demand Notice, the Company will provide notice to the Non-Initiating Holders
of the receipt of the Underwritten Demand Notice. For purposes of clarity, the Parties
acknowledge and agree that an Underwritten Demand Notice may be issued by the Initiating
Holders prior to the Effectiveness Period.
3.2 The Company shall use its commercially reasonable efforts to have the Underwritten
Demand Statement declared effective under the Securities Act, if required, as expeditiously
as reasonably practicable following the filing of such Underwritten Demand Statement. Any
Underwritten Demand Statement filed under this Section 3 shall reflect such plan or
method of distribution of the applicable securities as shall be designated by the managing
underwriter.
3.3 The Company shall have the right to postpone the filing or the effectiveness of
each Underwritten Demand Statement pursuant to this Section 3 as provided in
Section 4.
3.4 Notwithstanding anything to the contrary contained herein, no request may be made
under this Section 3 within six (6) months after the completion of an underwritten
offering pursuant to any Underwritten Demand Notice.
3.5 The Holders of a majority of the Underwritten Demand Shares shall be entitled to
select nationally recognized investment banks to act as the underwriters for such offering;
provided that such selection shall be subject to the consent
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of the Company (which consent shall not be unreasonably withheld, delayed or
conditioned).
3.6 The Company shall make available members of the management of the Company for
reasonable assistance in selling efforts related to such offering (including, without
limitation, senior management attendance at due diligence meetings with underwriters and
their counsel and road shows) and shall enter into underwriting agreements containing usual
and customary terms and conditions for such types of offerings and take all such other
actions in connection therewith customarily undertaken by issuers in order to expedite or
facilitate the disposition of such Registrable Securities, including without limitation:
(i) making such representations and warranties to the underwriters with respect to the
business of the Company, the registration statement pursuant to which the sale of the
Underwritten Demand Shares is to be registered, the Prospectus and any documents, if any,
incorporated or deemed to be incorporated by reference therein, as may reasonably be
required by the underwriters; (ii) obtaining opinions of counsel to the Company and updates
thereof, addressed to Holders and each of the underwriters; (iii) obtaining “cold comfort”
letters and updates thereof from the independent certified public accountants of the
Company addressed to Holders and each of the underwriters; (iv) ensuring that, if an
underwriting agreement is entered into, such agreement shall contain indemnification
provisions and procedures that are usual and customary for an offering of such size; (v)
filing with the SEC a final Prospectus with respect to the offering that satisfies the
requirements of Section 10(a) of the Securities Act as soon as practicable following the
pricing of the offering and, in any event, prior to the first scheduled date for delivery
by the Holders to the underwriters or purchasers of Registrable Securities in the offering;
and (vi) delivering such documents and certificates as may be reasonably requested by the
underwriters and their respective counsel to evidence the continued validity of the
representations and warranties made pursuant to clause (i) of this Section 3.6.
3.7 In connection with an Underwritten Demand Statement, if the managing underwriter
of such offering reasonably determines in writing that the number of securities sought to
be offered should be limited due to market conditions, then the number of securities to be
included in such underwritten public offering shall be reduced to a number deemed
satisfactory by such managing underwriter; provided, however, that
securities shall be excluded in the following sequence: (i) first, shares of Common Stock
held by any stockholders not having rights to include such shares in the underwritten
public offering; (ii) second, shares of Common Stock held by stockholders having
contractual, incidental “piggy back” rights to include such shares in the underwritten
public offering other than Registrable Securities or shares of Common Stock held by
stockholders having contractual, incidental “piggy back” rights to include such shares in
the underwritten public offering pursuant to that certain Registration Rights Agreement,
dated as of November 3, 1999, by and among the Company and certain of its stockholders (the
“Prior Registrable Securities”); (iii) third, shares of Common Stock sought to be
registered by the Company for its own account; and (iv) fourth, Registrable Securities and
Prior Registrable Securities. If there is a reduction of some but not all of the number of
shares pursuant to clauses (i) through (iv), such reduction shall be made on
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a pro rata basis (based upon the aggregate number of securities held by the holders in
the applicable category and subject to the priorities set forth in the preceding sentence).
3.8 The Company shall promptly notify the Holders in writing of the effectiveness, if
required, of any Underwritten Demand Statement and shall furnish to the Holders, without
charge, such number of copies of the Registration Statement (including any amendments,
supplements and exhibits), the Prospectus contained therein (including each preliminary
prospectus and all related amendments and supplements) and any documents incorporated by
reference in the Registration Statement or such other documents as the Holders may
reasonably request in order to facilitate the sale of the Registrable Securities in the
manner described in the Underwritten Demand Statement.
3.9 The Company shall promptly notify in writing each Holder of Registrable Securities
covered by such registration statement of any comments made to the Company or its counsel
by the SEC with respect thereto or any request made to the Company or its counsel by the
SEC for amendments or supplements to such registration statement or prospectus or for
additional information (and furnish counsel for the selling Holder(s) copies of such
comment letters and requests).
4. Suspension of Registration Requirement; Market Standstill.
4.1 The Company shall promptly notify each Holder in writing of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration Statement with respect
to such Holder’s Registrable Securities or the initiation of any proceedings for that
purpose. The Company shall use commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of such a Registration Statement as promptly as
reasonably possible and promptly notify in writing each Holder of Registrable Securities
covered by such registration statement of the withdrawal of any such order.
4.2 At any time when a Prospectus relating to a Registration Statement is required to
be delivered under the Securities Act to a transferee, the Company shall immediately notify
each Selling Holder (A) of the happening of any event as a result of which the Prospectus
included in such Registration Statement, as then in effect, includes an untrue statement of
a material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, and (B) in such event, to suspend sales of Registrable
Securities, and each Selling Holder will refrain from selling any Registrable Securities
pursuant to such Registration Statement until the Selling Holders are advised in writing by
the Company that the current Prospectus may be used, and has received copies of any
additional or supplemental filings that are incorporated or deemed incorporated by
reference in any such Prospectus. In such event, unless such event constitutes a
Suspension Event (as defined below), the Company shall promptly, and in any event within 15
Business Days, prepare and file a supplement to or an amendment of such Prospectus as may
be necessary so that, as supplemented or amended, such Prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
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circumstances under which they are made, not misleading. The Company shall, if
necessary, promptly, and in any event within 15 Business Days, amend the Registration
Statement of which such Prospectus is a part to reflect such amendment or supplement. The
Company shall promptly notify the Selling Holders in writing when the current Prospectus
may be used.
4.3 Subject to the terms of Section 5 below, the Company’s obligation under
this Agreement to file, amend or supplement a Registration Statement, or to cause a
Registration Statement, or any filings with any state securities commission, to become
effective shall be deferred, for one or more reasonable periods, each of which may not to
exceed 90 days, if the Board of Directors of the Company determines in good faith that such
deferral is in the best interest of the Company and its stockholders in order to avoid the
disclosure of information not otherwise then required by law (in the absence of a
registration or sales thereunder) to be publicly disclosed (such circumstances being
hereinafter referred to as a “Suspension Event”). The Company shall notify the Holders of
the existence of any Suspension Event by promptly delivering to each Holder a certificate
signed by an executive officer of the Company (“Suspension Event Certificate”) stating that
a Suspension Event has occurred and is continuing and setting forth the duration of such
Suspension Event, (not to exceed 90 days from delivery of the Suspension Event
Certificate), or if such duration is not known, the anticipated duration of such Suspension
Event (not to exceed 90 days from the delivery of the Suspension Event Certificate). If
the Suspension Event Certificate does not set forth a definitive duration of the Suspension
event, then upon the earlier of (i) 90 days following delivery of the Suspension Event
Certificate or (ii) the conclusion of the Suspension Event, the Company shall notify the
Holders in writing of the termination of the Suspension Event.
4.4 Subject to the terms of Section 5 below, each Holder of Registrable
Securities agrees, if requested by the managing underwriter or underwriters in a
Company-initiated underwritten offering (each, a “Company Offering”), not to effect any
public sale or distribution of any of the Registrable Securities or request an Underwritten
Demand Statement during an Offering Blackout Period, provided that the Company is actively
employing in good faith commercially reasonable efforts to cause the registration statement
associated with such Offering Blackout Period to be effective, if it has not already become
effective. The Company shall use commercially reasonable efforts to give written notice to
each Holder of any Offering Blackout Period at least 15 days prior to the commencement of
the Offering Blackout Period; provided, however, that if the Company is
unable to provide 15 days advance notice of the commencement of the Offering Blackout
Period, the Company shall provide as much notice as reasonably possible, and
provided further that the failure to timely provide such notice shall not
in any way prohibit the commencement of an Offering Blackout Period. The “Offering
Blackout Period” shall commence on a date set by the Company, which shall be no earlier
than the 15th day preceding the anticipated date of pricing of such Company
Offering, and shall end on the 150th day, or such sooner date as is requested by the
managing underwriter or underwriters in such Company Offering, after the closing date of
such Company Offering.
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5. Limitations on Suspension/Blackout Periods. Notwithstanding anything herein to the
contrary, the Company covenants and agrees that (a) the Company’s rights to defer certain
of its obligations pursuant to Section 4.3 during the pendency of any Suspension
Event, and (b) the Holders’ obligation to suspend public sales of Registrable Securities
pursuant to Section 4.4 during one or more Offering Blackout Periods, shall not, in
the aggregate, cause the Holders to be required to suspend sales of Registrable Securities
or relieve the Company of its obligation to file a Registration Statement for longer than
180 days during any 12-month period.
6. Piggyback Registration Rights. If the Company proposes to register in an
underwritten offering any of its shares of Common Stock under the Securities Act for sale
to the public (other than a registration effected solely to implement an employee benefit
plan or a transaction to which Rule 145 of the Securities Act is applicable, or a
registration statement on Form ▇-▇, ▇-▇ or another form not available for registering the
Registrable Securities for sale to the public, or in connection with an Underwritten Demand
Statement), each such time it will give written notice to each Holder. Upon the written
request of any of such Holders, given within 10 Business Days after receipt by such Person
of such notice, the Company shall, subject to the limits contained in this Section
6, use its commercially reasonable efforts to cause all Registrable Securities
requested by such Holders to be registered under the Securities Act and qualified for sale
under any state securities or “blue sky” law, to the extent required to permit the sale of
their Registrable Securities in such underwritten public offering; provided,
however, that if the managing underwriter or underwriters of such offering
reasonably determine in writing that the number of securities sought to be offered should
be limited due to market conditions, then the number of securities to be included in such
underwritten public offering shall be reduced to a number deemed satisfactory by such
managing underwriter or underwriters; provided, however, that securities
shall be excluded in the following sequence: (i) first, shares of Common Stock held by any
stockholders not having rights to include such shares in the underwritten public offering;
(ii) second, shares of Common Stock held by stockholders having contractual, incidental
“piggy back” rights to include such shares in the underwritten public offering other than
Registrable Securities and Prior Registrable Securities; (iii) third, Registrable
Securities and Prior Registrable Securities; and (iv) fourth, shares of Common Stock sought
to be registered by the Company for its own account. If there is a reduction of some but
not all of the number of shares pursuant to clauses (i) through (iv), such reduction shall
be made on a pro rata basis (based upon the aggregate number of securities held by the
holders in the applicable category and subject to the priorities set forth in the preceding
sentence). Additionally, the Company shall not be required to register any Registrable
Securities pursuant to this Section 6 unless the Holders of such Registrable
Securities accept the terms of the underwriting agreed upon between the Company and the
underwriters selected by the Company (or by other persons entitled to select the
underwriters). All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and any other stockholders proposing to
distribute their securities through such underwriting) enter into an underwriting agreement
in customary form with the underwriters.
7. Termination of Registration Rights. The rights granted pursuant to Sections
2, 3 and 6 shall terminate, as to any Holder, at such time at which all
Registrable
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Securities held by such Holder can be sold in any three-month period without
registration in compliance with Rule 144; provided, however, that it shall
be assumed that no Holder will be eligible to sell any Registrable Securities pursuant to
Rule 144(k) during the Class B Period.
8. State Securities Laws and Sale Procedures.
8.1 The Company shall use its commercially reasonable efforts to file documents
required of the Company for normal blue sky clearance in states specified in writing by the
Holders; provided, however, that the Company shall not be required to qualify to do
business or consent to service of process in any jurisdiction in which it is not now so
qualified or has not so consented.
8.2 Each Holder agrees that it will not effect any disposition of the Registrable
Securities that would constitute a sale within the meaning of the Securities Act other than
transactions exempt from the registration requirements of the Securities Act or as
contemplated in a Registration Statement.
8.3 In the event of a sale of Registrable Securities by the Holder, unless such
requirement is waived by the Company in writing, the Holder must also deliver to the
Company’s transfer agent, with a copy to the Company, a Certificate of Subsequent Sale
substantially in the form attached hereto as Exhibit A, so that the Registrable
Securities may be properly transferred.
9. Indemnification by the Company. The Company agrees to indemnify and hold harmless
the Holders and, if a Holder is a person other than an individual, such Holder’s officers,
directors, employees, agents, representatives and Affiliates, and each Person, if any, that
controls a Holder within the meaning of the Securities Act, and each other Person, if any,
subject to liability because of his, her or its connection with a Holder (each, an
“Indemnitee”), against any and all losses, claims, damages, actions, liabilities, costs,
and expenses (including without limitation reasonable fees, expenses and disbursements of
attorneys and other professionals), joint or several, arising out of or based upon (i) any
violation (or alleged violation) by the Company of the Securities Act, the Exchange Act or
state securities laws and relating to action or inaction required of the Company under the
terms of this Agreement or in connection with any Registration Statement or Prospectus;
(ii) any untrue (or alleged untrue) statement of material fact contained in any
Registration Statement or any Prospectus; or (iii) any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Company shall not be liable to such
Indemnitee or any person who participates as an underwriter in the offering or sale of
Registrable Securities or any other person, if any, who controls such underwriter within
the meaning of the Securities Act, in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof) or expense arises out
of or is based upon (a) an untrue statement (or alleged untrue statement) or omission (or
alleged omission) made in such Registration Statement or in any such Prospectus in reliance
upon and in conformity with information regarding such Indemnitee or its plan of
12
distribution or ownership interests which was furnished in writing to the Company for
use in connection with such Registration Statement or the Prospectus contained therein by
such Indemnitee, (b) any Holder’s failure to send or give a copy of the final, amended or
supplemented prospectus furnished to the Holders by the Company at or prior to the time
such action is required by the Securities Act to the person claiming an untrue statement or
alleged untrue statement or omission or alleged omission if such statement or omission was
corrected in such final, amended or supplemented Prospectus, or (c) an untrue statement or
alleged untrue statement contained in any offer made by a Holder relating to the
Registrable Securities that constitutes a “free writing prospectus” as defined in Rule 405
of the Securities Act.
10. Covenants of the Holder. Each of the Holders hereby agrees (i) to cooperate with
the Company and to furnish to the Company the information concerning such Holder, its plan
of distribution and its ownership interests in securities of the Company in connection with
the preparation of a Registration Statement or Prospectus with respect to such Holder’s
Registrable Securities and any filings with any state securities commissions as the Company
may reasonably request (and to promptly notify the Company of any material changes in such
information set forth in a Registration Statement prior to and during the effectiveness of
such Registration Statement), (ii) if the Company complies with its obligations to timely
file a final Prospectus pursuant to Section 3.6 of this Agreement relating to a
sale of Registrable Securities of such Holder, to deliver or cause delivery of such final
Prospectus to any purchaser of such Registrable Securities from such Holder if the Holder
is required by the Securities Act or the rules and regulations thereunder to deliver the
Prospectus in connection with the sale of such Registrable Securities to such purchaser;
provided, however, that no delivery of the Prospectus shall be required of
any Holder pursuant to this subsection (ii) if such Prospectus is deemed delivered pursuant
to Rule 172 under the Securities Act, (iii) that it will not make any offer relating to the
Registrable Securities that would constitute a “free writing prospectus” as defined in Rule
405 under the Securities Act, and (iv) to indemnify the Company, its officers, directors,
employees, agents, representatives and Affiliates, and each person, if any, who controls
the Company within the meaning of the Securities Act, and each other person or entity, if
any, subject to liability because of his, her or its connection with the Company, against
any and all losses, claims, damages, actions, liabilities, costs and expenses arising out
of or based upon (A) any untrue statement or alleged untrue statement of material fact
contained in either such Registration Statement or the Prospectus contained therein, or any
omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading, if and to the extent that such statement or omission occurs from
reliance upon and in conformity with written information regarding such Holder, his, her or
its plan of distribution or his, her or its ownership interests, which was furnished to the
Company in writing by such Holder for use therein, (B) if the Company complies with its
obligations to timely file a final Prospectus pursuant to Section 3.6 of this
Agreement relating to a sale of Registrable Securities of such Holder, the failure by such
Holder to deliver or cause delivery of such final Prospectus to any purchaser of such
Registrable Securities from such Holder if the Holder is required by the Securities Act or
the rules and regulations thereunder to deliver the Prospectus in connection with the sale
of such
13
Registrable Securities to such purchaser; provided that, for purposes of this
subsection (B), such failure shall not include in any event any deemed delivery of such
Prospectus pursuant to Rule 172 under the Securities Act or (C) an untrue statement or
alleged untrue statement contained in any offer made by such Holder relating to the
Registrable Securities that constitutes a “free writing prospectus” as defined in Rule 405
of the Securities Act.
11. Indemnification Procedures. Any Person entitled to indemnification under this
Agreement shall notify promptly the indemnifying party in writing of the commencement of
any action or proceeding of which such Person has actual knowledge and with respect to
which a claim for indemnification may be made hereunder, but the failure of any indemnified
party to provide such notice shall not relieve the indemnifying party of its obligations
hereunder, except to the extent the indemnifying party is materially prejudiced thereby and
shall not relieve the indemnifying party from any liability which it may have to any
indemnified party otherwise than hereunder. In case any action or proceeding is brought
against an indemnified party and it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, unless in the
reasonable opinion of outside counsel to the indemnified party a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such claim, to
assume the defense thereof (alone or jointly with any other indemnifying party similarly
notified), to the extent that it chooses, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such indemnified party
that it so chooses (provided that in connection with such assumption the
indemnifying parties provide the indemnified parties a full release of any costs or other
expenses in connection therewith), the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof; provided, however, that (a)
if the indemnifying party fails to take reasonable steps necessary to defend diligently the
action or proceeding within 15 Business Days after receiving notice from such indemnified
party that the indemnified party believes it has failed to do so; or (b) if such
indemnified party who is a defendant in any action or proceeding which is also brought
against the indemnifying party shall have reasonably concluded, based on the advice of
counsel, that there may be one or more legal defenses available to such indemnified party
which are not available to the indemnifying party; or (c) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of professional
conduct, then, in any such case, the indemnified party shall have the right to assume or
continue its own defense as set forth above (but with no more than one firm of counsel for
all indemnified parties in each jurisdiction) and the indemnifying party shall be liable
for any expenses therefor, in which case the indemnifying party shall pay or reimburse such
legal or other expenses as they are incurred. No indemnifying party shall, without the
written consent of the indemnified party (which shall not be unreasonably withheld), effect
the settlement or compromise of, or consent to the entry of any judgment with respect to,
any pending or (to the knowledge of the indemnifying party) threatened action or claim in
respect of which indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability
14
arising out of such action or claim, (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party and (iii) does not and is not likely to materially adversely affect the indemnified
party.
12. Contribution.
12.1 If the indemnification provided for in Section 9 and Section 10
is unavailable to an indemnified party with respect to any losses, claims, damages,
actions, liabilities, costs or expenses referred to therein or is insufficient to hold the
indemnified party harmless as contemplated therein, then the indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, actions, liabilities, costs
or expenses in such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other hand, in
connection with the statements or omissions which resulted in such losses, claims, damages,
actions, liabilities, costs or expenses as well as any other relevant equitable
considerations. The relative fault of the indemnifying party, on the one hand, and of the
indemnified party, on the other hand, shall be determined by reference to, among other
factors, whether the untrue or alleged untrue statement of a material fact or omission to
state a material fact relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided,
however, that in no event shall the obligation of any indemnifying party to
contribute under this Section 12 exceed the amount that such indemnifying party
would have been obligated to pay by way of indemnification if the indemnification provided
for under Section 9 or Section 10 hereof had been available under the
circumstances.
12.2 The Company and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 12 were determined by pro
rata allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
12.3 Notwithstanding the provisions of this Section 12, no Holder shall be
required to contribute any amount in excess of the amount by which the gross proceeds from
the sale of Registrable Securities exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission. No indemnified party guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
13. Expenses. The Company shall bear all Registration Expenses incurred in connection
with the registration of the Registrable Securities in connection with the registration of
the Registrable Securities pursuant to Section 2 hereof and the registration of
Registrable Securities pursuant to the first three (3) Underwritten Demand Statements
effected pursuant to Section 3.1. The Holders shall bear all Registration Expenses
incurred in connection with the registration of the Registrable Securities pursuant to all
15
Underwritten Demand Statements effected pursuant to Section 3.1 other than the
first three (3). The Holders shall also bear all underwriting fees, discounts or
commissions attributable to the sale of securities by the Holders, or any legal fees and
expenses of counsel to the Holders and any underwriter engaged in connection with an
Underwritten Demand Statement and all other expenses incurred in connection with the
performance by the Holders of their obligations under the terms of this Agreement.
14. Transfer of Registration Rights. Subject to the restrictions in the Investor
Rights Agreement on the right to transfer the Shares or the Registrable Securities, the
rights of a Holder under this Agreement may be transferred by a Holder to a transferee who
acquires Registrable Securities equal to at least 25% of the total number of Registrable
Securities initially issuable upon conversion of all of the Shares initially issued to
Initial Holder pursuant to the Stock Purchase Agreement (including all other securities
issued or issuable in respect of such Registrable Securities by way of spin-off, dividend
or stock split or in connection with a combination of shares, reclassification, merger,
consolidation or reorganization), provided, however, that such transferee
has executed and delivered to the Company a properly completed agreement to be bound by the
terms of this Agreement substantially in the form attached hereto as Exhibit B (an
“Addendum Agreement”), and the transferor shall have delivered to the Company, no later
than 30 days following the date of the transfer, written notification of such transfer
setting forth the name of the transferor, the name and address of the transferee, and the
number of Registrable Securities so transferred. The execution of an Addendum Agreement
shall constitute a permitted amendment of this Agreement.
15. Additional Shares. Except as otherwise provided in this Agreement, the Company,
at its option, may register, under any Registration Statement and any filings with any
state securities commissions filed pursuant to this Agreement, any number of unissued,
treasury or other shares of Common Stock of or owned by the Company and any of its
subsidiaries or any shares of Common Stock or other securities of the Company owned by any
other security holder or security holders of the Company.
16. No Other Obligation to Register. Except as otherwise expressly provided in this
Agreement, the Company shall have no obligation to the Holders to register the Registrable
Securities under the Securities Act.
17. Rule 144 Reporting. With a view to making available the benefits of certain rules
and regulations of the SEC that may permit the sale of the Registrable Securities to the
public without registration, the Company agrees to use commercially reasonable efforts to:
(a) make and keep adequate current public information available pursuant to paragraph
(c) of Rule 144;
(b) file with the SEC in a timely manner all reports and other documents required of
the Company under the Exchange Act; and
16
(c) furnish to any Holder, so long as the Holder owns any Registrable Securities,
forthwith upon request, a statement, if true, to the effect that it has complied with the
reporting requirements of paragraph (c) Rule 144 and meets the eligibility requirements for
use of Form S-3 set forth in Instruction I.A. and Form S-3.
18. Notices. All notices, requests, consents and other communications hereunder shall
be in writing, in English, shall be delivered (A) if within the United States, by
first-class registered or certified airmail, or nationally recognized overnight express
courier, postage prepaid, or by facsimile, or (B) if from outside the United States, by a
recognized international express courier service or facsimile, and shall be deemed given
(i) if delivered by first-class registered or certified mail domestic, upon the business
day received, (ii) if delivered by nationally recognized overnight carrier, one (1)
business day after timely delivery to such carrier, (iii) if delivered by a recognized
international express courier service, two (2) Business Days after timely delivery to such
carrier, (iv) if delivered by facsimile, upon electric confirmation of receipt and shall be
addressed as follows, or to such other address or addresses as may have been furnished in
writing by a party to another party pursuant to this Section 18:
| if to the Company, to: | ||||
| Plug Power Inc. | ||||
| ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, | ||||
| ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ | ||||
| Attention: General Counsel | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| with a copy (which shall not constitute notice) to: | ||||
| ▇▇▇▇▇▇▇ Procter LLP | ||||
| Exchange Place | ||||
| Boston, Massachusetts 02109 | ||||
| Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ | ||||
| if to the Holder, to: | ||||
| Smart Hydrogen Inc. | ||||
| ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | ||||
| ▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Street | ||||
| 119180 Moscow | ||||
| Russian Federation | ||||
| Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ | ||||
| Facsimile: ▇-▇▇▇-▇▇▇-▇▇▇▇ | ||||
| with a copy (which shall not constitute notice) to: | ||||
| ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. | ||||
17
| The Warner | ||||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. | ||||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ | ||||
| Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | ||||
| Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ |
In the event of transfer of Registrable Securities, notices given pursuant to this Agreement
to a subsequent Holder shall be delivered to the relevant address specified in the relevant
agreement in the form of Exhibit B whereby such Holder became bound by the provisions of
this Agreement.
19. Amendments; Waiver. Except as permitted by Section 14, this Agreement may
not be modified or amended except pursuant to an instrument in writing signed by the
Company and the Holders owning Registrable Securities possessing a majority in number of
the Registrable Securities then outstanding. Any waiver of a provision of this Agreement
must be in writing and executed by the Party against whom enforcement of such waiver is
sought.
20. Headings. The headings of the various sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be part of this
Agreement.
21. Entire Agreement; Severability. This Agreement, the Stock Purchase Agreement and
the Investor Rights Agreement set forth the entire agreement and understanding of the
parties relating to the subject matter hereof and supersede all prior and contemporaneous
agreements, negotiations and understandings between the parties, both oral and written
relating to the subject matter hereof. If any provision contained in this Agreement is
determined to be invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be
affected or impaired thereby.
22. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of New York, without giving effect to the principles
of conflicts of law.
23. Dispute Resolution.
23.1 The Parties shall endeavor to resolve any dispute, claim, or controversy arising
out of or relating to this Agreement (including, but not limited to, the negotiation,
validity, performance breach or termination thereof) (each, a “Dispute”) by non-binding
mediation under the CPR Mediation Procedure then currently in effect. The mediator will be
selected upon mutual agreement of the parties engaged in the Dispute (the “Disputing
Parties”). Any Dispute which remains unresolved 30 days after the appointment of a
mediator (or if the Disputing Parties are unable to agree upon a mediator within 30 days
after a Disputing Party notifies another Disputing Party of a Dispute in writing), shall be
finally resolved by arbitration in accordance with the CPR
18
Rules for Non-Administered Arbitration, Revised and Effective June 15, 2005 (the
“Rules”). A tribunal of three arbitrators will preside over any Dispute(s) (the
“Tribunal”). Each Disputing Party shall appoint one arbitrator to the Tribunal or, if
there are more than two Disputing Parties and the Company is one of the Disputing Parties,
then the Company shall appoint one arbitrator and the other Disputing Parties shall jointly
appoint one arbitrator. Within 30 days of the appointment of the second arbitrator, the
two arbitrators appointed by the Disputing Parties shall appoint a third arbitrator, who
shall chair the Tribunal (the “Chairperson”). In the event the arbitrators appointed by
the Disputing Parties are unable to agree on the Chairperson, the Chairperson will be
selected as provided in Rule 6 of the Rules. Under no circumstances shall the Chairperson
be either an American or Russian citizen. The place of arbitration shall be New York, New
York and the language of the arbitration shall be English. Upon the request of any
Disputing Party, there shall be simultaneous translation of all communications with the
Tribunal into English or Russian, as the case may be. The arbitration shall be governed by
the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and judgment upon or other enforcement of
the award rendered by the arbitrator may be entered by the U.S. District Court for the
Southern District of New York.
23.2 Unless otherwise agreed by the Disputing Parties, the Tribunal’s decision and
award shall be made and delivered within 30 days of the conclusion of the arbitration. The
Parties acknowledge that the Tribunal shall have the authority, with respect to any
Dispute, to provide any and all relief, whether legal, equitable, or otherwise, and award
any damages or remedy that a federal court in New York could provide or award with respect
to such Dispute. The Tribunal shall have no jurisdiction, power, or authority to decide or
award punitive or exemplary damages. It is the expressed intention of the Parties to
mutually waive the right to seek or recover such damages from the other.
23.3 The Parties covenant and agree that they will share equally the costs of an
arbitration pursuant to this Section 23, except as otherwise provided herein. The
Tribunal may in its discretion assess costs and expenses (including the reasonable legal
fees and expenses of the prevailing party) against any Disputing Party to a proceeding.
Any Disputing Party unsuccessfully refusing to comply with an award of the Tribunal shall
be liable for costs and expenses, including reasonable attorneys’ fees, incurred by any
other Disputing Party in enforcing the award.
23.4 Each Party irrevocably waives any objection to proceeding before the Tribunal in
New York, to the extent provided in this Section 23, based upon lack of personal
jurisdiction or to the laying of venue and further irrevocably and unconditionally waives
and agrees not to make a claim that arbitration in accordance with these provisions has
been brought in an inconvenient forum. Each of the Parties hereby consents to service of
notice for any arbitration pursuant to this Section 23 as provided for in Rule 2 of
the Rules.
23.5 Notwithstanding the foregoing, the parties hereby consent to the sole and
exclusive jurisdiction of the U.S. District Court for the Southern District of New York for
any action, suit or proceeding to compel arbitration pursuant to this Section 23,
19
seek a preliminary injunction or other provisional judicial relief in aid of
arbitration with respect to any Dispute, or obtain judgment upon or other enforcement of
any award or decision rendered by the Tribunal pursuant to this Section 23, and the
Parties agree that the foregoing provisions requiring non-binding mediation and arbitration
of Disputes shall not apply to any such action, suit, or proceeding. The Parties further
hereby irrevocably and unconditionally waive any objection to the laying of venue of any
such action, suit or proceeding in the U.S. District Court for the Southern District of New
York and hereby further irrevocably and unconditionally waive and agree not to plead or
claim in such court that any such action, suit, or proceeding brought in such court has
been brought in an inconvenient forum. Each of the Parties further agrees that service of
any process, summons, notice, or document by U.S. registered mail (with respect to any
address in the United States) or by a recognized international express courier service,
including, without limitation, International Federal Express (with respect to any address
outside of the United States) to such party’s then current address for notice pursuant to
Section 18 shall be effective service of process for any action, suit, or
proceeding brought against it in such court. Each of the Parties agrees that its or his
submission to jurisdiction and its or his consent to service of process in the manner
described above is made for the express benefit of the other Parties.
23.6 The procedures specified in this Section 23 shall be the sole and
exclusive procedures for the resolution of Disputes.
24. Counterparts. This Agreement may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts have been
signed by each Party hereto and delivered to the other Party.
25. Drafting Conventions; No Construction Against the Drafter.
25.1 The headings in this Agreement are provided for convenience and do not affect its
meaning. The words “include”, “includes” and “including” are to be read as if they were
followed by the phrase “without limitation”. Unless specified otherwise, any reference to
an agreement means that agreement as amended or supplemented, subject to any restrictions
on amendment contained in such agreement. Unless specified otherwise, any reference to a
statute or regulation means that statute or regulation as amended or supplemented from time
to time and any corresponding provisions of successor statutes or regulations. If any date
specified in this Agreement as a date for taking action falls on a day that is not a
Business Day, then that action may be taken on the next Business Day.
25.2 The Parties have participated jointly with their respective counsel in the
negotiation and drafting of this Agreement. If an ambiguity or question of intent or
interpretation arises, this Agreement is to be construed as if drafted jointly by the
Parties and there is to be no presumption or burden of proof favoring or disfavoring any
Party because of the authorship of any provision of this Agreement.
20
[Signature Page Follows]
21
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first written
above.
| PLUG POWER INC. | ||||
| By: | /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||||
| Title: Chief Executive Officer | ||||
| SMART HYDROGEN INC. | ||||
| By: | /s/ ▇▇▇▇▇▇ Polikarpov | |||
| Name: ▇▇▇▇▇▇ Polikarpov | ||||
| Title: Director | ||||
[REGISTRATION RIGHTS AGREEMENT SIGNATURE PAGE]
Exhibit A
PLUG POWER INC.
CERTIFICATE OF SUBSEQUENT SALE
CERTIFICATE OF SUBSEQUENT SALE
[Transfer Agent]
|
||
RE:
|
Sale of Shares of Common Stock of Plug Power Inc. (the “Company”) pursuant to the Company’s Prospectus dated , 2006 (the “Prospectus”) |
Dear Sir/Madam:
The undersigned hereby certifies, in connection with the sale of shares of Common Stock of the
Company included in the table of Selling Shareholders in the Prospectus, that the undersigned has
sold the Shares pursuant to the Prospectus and in a manner described under the caption “Plan of
Distribution” in the Prospectus and that such sale complies with all applicable securities laws,
including, without limitation, the Prospectus delivery requirements of the Securities Act of 1933,
as amended.
| Selling Shareholder (the beneficial owner): | ||||
| Record Holder (e.g., if held in name of nominee): | ||||
| Restricted Stock Certificate No.(s): | ||||
| Number of Shares Sold: | ||||
| Date of Sale: | ||||
In the event that you receive a stock certificate(s) representing more shares of Common Stock
than have been sold by the undersigned, then you should return to the undersigned a newly issued
certificate for such excess shares in the name of the Record Holder and BEARING A RESTRICTIVE
LEGEND. Further, you should place a stop transfer on your records with regard to such certificate.
| Dated: | Very truly yours, | |||||||
| By: | ||||||||
| Print Name: | ||||||||
| Title: | ||||||||
| cc: Plug Power Inc., Corporate Secretary | ||||||||
A-1
Exhibit B
AGREEMENT TO BE BOUND
The undersigned, being the transferee of shares of Registrable Securities (as defined in
the Registration Rights Agreement between Plug Power Inc. (the “Company”) and Smart Hydrogen Inc.,
dated June 29, 2006 (the “Registration Rights Agreement”)), as a condition to the receipt of such
Registrable Securities, acknowledges that matters pertaining to the registration of the resale of
such Registrable Securities is governed by the Registration Rights Agreement and the undersigned
hereby: (1) acknowledges receipt of a copy of the Registration Rights Agreement, and (2) agrees to
be bound as a Holder and a Party by the terms of the Registration Rights Agreement, as the same has
been or may be amended from time to time.
Agreed to this day of , 200___.
| [Transferee Name] |
||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| Address: | ||||||
B-1