Use these links to rapidly review the
document
TABLE OF
CONTENTS
TABLE OF
CONTENTS
Table of
Contents
Filed
Pursuant to Rule 424(b)(5)
Registration Number 333-235328
The information in this preliminary prospectus
supplement and the accompanying prospectus is not complete and may
be changed. A registration statement relating to the securities has
been declared effective by the Securities and Exchange Commission.
This preliminary prospectus supplement and accompanying prospectus
are not offers to sell these securities, and we are not soliciting
offers to buy these securities in any state where such offer or
sale is not permitted.
Subject to completion, dated December 2,
2019
Preliminary Prospectus Supplement
(To Prospectus dated December 2,
2019)
40,000,000 Shares

Common Stock
We are offering 40,000,000 shares of our common stock in
this offering.
Our common stock is traded on the Nasdaq Capital Market
under the symbol "PLUG." On November 29, 2019, the last
reported sale price of our common stock on the Nasdaq Capital
Market was $3.90 per share.
Investing in our securities involves a high degree of
risk. See "Risk Factors" beginning on page S-15 of this
prospectus supplement, and "Risk Factors" included in our Annual
Report on Form 10-K for the fiscal year ended
December 31, 2018.
|
|
|
|
|
|
|
|
|
Price to
Public
|
|
Underwriting
Discounts and
Commissions(1)
|
|
Proceeds to
Company
|
Per Share
|
|
$ |
|
$ |
|
$ |
Total
|
|
$ |
|
$ |
|
$ |
- (1)
- See "Underwriting" for additional disclosure regarding
underwriting discounts, commissions and estimated
expenses.
We have granted the underwriters an option for a period of
30 days to purchase up to 6,000,000 additional shares of our
common stock from us at the public offering price, less the
underwriting discounts and commissions.
Neither the U.S. Securities and Exchange Commission, any
state securities commission, nor any other regulatory body has
approved or disapproved of these securities or determined if this
prospectus supplement and the accompanying prospectus are truthful
and complete. Any representation to the contrary is a criminal
offense.
Delivery of the common stock at the closing of the offering
is expected to be made on or about
December , 2019.
The
date of this prospectus supplement is
December , 2019.
Table of
Contents
TABLE OF CONTENTS
Prospectus Supplement
|
|
|
|
|
|
|
Page |
|
ABOUT THIS PROSPECTUS SUPPLEMENT
|
|
|
S-1 |
|
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING
STATEMENTS
|
|
|
S-3 |
|
SUMMARY
|
|
|
S-5 |
|
THE OFFERING
|
|
|
S-10 |
|
SUMMARY SELECTED CONSOLIDATED FINANCIAL
DATA
|
|
|
S-12 |
|
RISK FACTORS
|
|
|
S-15 |
|
USE OF PROCEEDS
|
|
|
S-21 |
|
CAPITALIZATION
|
|
|
S-22 |
|
DILUTION
|
|
|
S-24 |
|
DIVIDEND POLICY
|
|
|
S-26 |
|
UNDERWRITING
|
|
|
S-27 |
|
MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR
NON-U.S. HOLDERS
|
|
|
S-36 |
|
LEGAL MATTERS
|
|
|
S-40 |
|
EXPERTS
|
|
|
S-40 |
|
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
|
|
S-40 |
|
INCORPORATION BY REFERENCE
|
|
|
S-41 |
|
Accompanying
Prospectus
|
|
|
|
|
ABOUT THIS PROSPECTUS
|
|
|
1 |
|
OUR COMPANY
|
|
|
2 |
|
RISK FACTORS
|
|
|
3 |
|
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
|
|
|
3 |
|
USE OF PROCEEDS
|
|
|
5 |
|
DESCRIPTION OF COMMON STOCK AND PREFERRED
STOCK
|
|
|
6 |
|
DESCRIPTION OF WARRANTS
|
|
|
14 |
|
DESCRIPTION OF DEBT SECURITIES
|
|
|
16 |
|
DESCRIPTION OF UNITS
|
|
|
23 |
|
SELLING SECURITYHOLDERS
|
|
|
27 |
|
PLAN OF DISTRIBUTION
|
|
|
28 |
|
LEGAL MATTERS
|
|
|
29 |
|
EXPERTS
|
|
|
29 |
|
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
|
|
29 |
|
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
|
|
|
30 |
|
S-i
Table of
Contents
ABOUT THIS PROSPECTUS
SUPPLEMENT
This document
is part of the registration statement that we filed with the
Securities and Exchange Commission, or the SEC, using a "shelf"
registration process and consists of two parts. The first part is
this prospectus supplement, including the documents incorporated by
reference, which describes the specific terms of this offering. The
second part, the accompanying prospectus, including the documents
incorporated by reference, gives more general information, some of
which may not apply to this offering. Generally, when we refer only
to the "prospectus," we are referring to both parts combined. This
prospectus supplement may add to, update or change information in
the accompanying prospectus and the documents incorporated by
reference into this prospectus supplement or the accompanying
prospectus.
If information
in this prospectus supplement is inconsistent with the accompanying
prospectus or with any document incorporated by reference that was
filed with the SEC before the date of this prospectus supplement,
you should rely on this prospectus supplement. This prospectus
supplement, the accompanying prospectus and the documents
incorporated into each by reference include important information
about us, the securities being offered and other information you
should know before investing in our securities. You should read the
entire prospectus supplement and the accompanying prospectus
carefully, including "Risk Factors" contained in this prospectus
supplement, the accompanying prospectus and the documents
incorporated by reference herein and therein and the financial
statements incorporated by reference in this prospectus supplement
and the accompanying prospectus, before making an investment
decision. You should also read and consider information in the
documents we have referred you to in the section of this prospectus
supplement and the accompanying prospectus entitled "Incorporation
by Reference," "Incorporation of Certain Information by Reference"
and "Where You Can Find Additional Information" as well as any free
writing prospectus provided in connection with this
offering.
You should rely
only on this prospectus supplement, the accompanying prospectus,
and any free writing prospectus provided in connection with this
offering and the information incorporated or deemed to be
incorporated by reference in this prospectus supplement and the
accompanying prospectus. We have not, and the underwriters have
not, authorized anyone to provide you with information that is in
addition to or different from that contained or incorporated by
reference in this prospectus supplement, the accompanying
prospectus, and any free writing prospectus provided in connection
with this offering. If anyone provides you with different or
inconsistent information, you should not rely on it. We and the
underwriters take no responsibility for, and can provide no
assurance as to the reliability of, any other information that
others may give you. We and the underwriters are not offering to
sell these securities in any jurisdiction where the offer or sale
is not permitted. You should not assume that the information
contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus, or any free writing
prospectus provided in connection with this offering is accurate as
of any date other than as of the date of this prospectus
supplement, the accompanying prospectus, or such free writing
prospectus, as the case may be, or in the case of the documents
incorporated by reference, the date of such documents regardless of
the time of delivery of this prospectus supplement and the
accompanying prospectus or any sale of our securities. Our
business, financial condition, liquidity, results of operations and
prospects may have changed since those dates.
Neither we nor
the underwriters have done anything that would permit this offering
or possession or distribution of this prospectus supplement, the
accompanying prospectus or any free writing prospectus in any
jurisdiction where action for that purpose is required, other than
in the United States. Persons who come into possession of this
prospectus supplement, the accompanying prospectus and any free
writing prospectus related to this offering in jurisdictions
outside the United States are required to inform themselves about
and to observe any restrictions as to this offering and the
distribution of this prospectus supplement, the accompanying
prospectus and any such free writing prospectus applicable to that
jurisdiction.
S-1
Table of
Contents
The industry
and market data contained or incorporated by reference in this
prospectus supplement are based either on our management's own
estimates or on independent industry publications, reports by
market research firms or other published independent sources.
Although we believe these sources are reliable, we have not
independently verified the information and cannot guarantee its
accuracy and completeness, as industry and market data are subject
to change and cannot always be verified with complete certainty due
to limits on the availability and reliability of raw data, the
voluntary nature of the data gathering process and other
limitations and uncertainties inherent in any statistical survey of
market shares. Accordingly, you should be aware that the industry
and market data contained or incorporated by reference in this
prospectus supplement, and estimates and beliefs based on such
data, may not be reliable. Unless otherwise indicated, all
information contained or incorporated by reference in this
prospectus supplement concerning our industry in general or any
segment thereof, including information regarding our general
expectations and market opportunity, is based on management's
estimates using internal data, data from industry related
publications, consumer research and marketing studies and other
externally obtained data.
This prospectus
supplement and the information incorporated herein by reference
includes trademarks, service marks and trade names owned by us or
other companies. All trademarks, service marks and trade names
included or incorporated by reference into this prospectus, any
applicable prospectus supplement or any related free writing
prospectus are the property of their respective owners.
S-2
Table of
Contents
CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus
supplement and the accompanying prospectus contain and/or
incorporate by reference statements that are not historical facts
and are considered forward-looking within the meaning of
Section 27A of the Securities Act and Section 21E of the
Exchange Act. These forward-looking statements contain projections
of our future results of operations or of our financial position or
state other forward-looking information. In some cases, you can
identify these statements by forward-looking words such as
"anticipate," "believe," "could," "continue," "estimate," "expect,"
"intend," "may," "should," "will," "would," "plan," "projected" or
the negative of such words or other similar words or phrases. We
believe that it is important to communicate our future expectations
to our investors. However, there may be events in the future that
we are not able to accurately predict or control and that may cause
our actual results to differ materially from the expectations we
describe in our forward-looking statements. Investors are cautioned
not to unduly rely on forward-looking statements because they
involve risks and uncertainties, and actual results may differ
materially from those discussed as a result of various factors,
including, but not limited to: the risk that we continue to incur
losses and might never achieve or maintain profitability; the risk
that we will need to raise additional capital to fund our
operations and such capital may not be available to us; the risk of
dilution to our stockholders and/or stock price should we need to
raise additional capital; the risk that our lack of extensive
experience in manufacturing and marketing products may impact our
ability to manufacture and market products on a profitable and
large-scale commercial basis; the risk that unit orders may not
ship, be installed and/or converted to revenue, in whole or in
part; the risk that a loss of one or more of our major customers,
or if one of our major customers delays payment of or is unable to
pay its receivables, a material adverse effect could result on our
financial condition; the risk that a sale of a significant number
of shares of stock could depress the market price of our common
stock; the risk that our convertible debt securities, if settled in
cash, could have a material effect on our financial results; the
risk that our convertible note hedges may affect the value of our
convertible debt securities and our common stock; the risk that
negative publicity related to our business or stock could result in
a negative impact on our stock value and profitability; the risk of
potential losses related to any product liability claims or
contract disputes; the risk of loss related to an inability to
maintain an effective system of internal controls; our ability to
attract and maintain key personnel; the risks related to the use of
flammable fuels in our products; the risk that pending orders may
not convert to purchase orders, in whole or in part; the cost and
timing of developing, marketing and selling our products; the risks
of delays in or not completing our product development goals; our
ability to obtain financing arrangements to support the sale or
leasing of our products and services to customers; our ability to
achieve the forecasted gross margin on the sale of our products;
the cost and availability of fuel and fueling infrastructures for
our products; the risks, liabilities, and costs related to
environmental, health and safety matters; the risk of elimination
of government subsidies and economic incentives for alternative
energy products; market acceptance of our products and services,
including GenDrive, GenSure and GenKey systems; our ability to
establish and maintain relationships with third parties with
respect to product development, manufacturing, distribution and
servicing, and the supply of key product components; the cost and
availability of components and parts for our products; the risk
that possible new tariffs could have a material adverse effect on
our business; our ability to develop commercially viable products;
our ability to reduce product and manufacturing costs; our ability
to successfully market, distribute and service our products and
services internationally; our ability to improve system reliability
for our products; competitive factors, such as price competition
and competition from other traditional and alternative energy
companies; our ability to protect our intellectual property; the
risk of dependency on information technology on our operations and
the failure of such technology; the cost of complying with current
and future federal, state and international governmental
regulations; our subjectivity to legal proceedings and legal
compliance; the risks associated with potential future
acquisitions; the volatility of our stock price; and other risks
and uncertainties described herein, as well as those risks and
uncertainties referenced under "Risk Factors" of this prospectus
supplement and in the accompanying prospectus or any
free
S-3
Table of
Contents
writing prospectus provided in connection with this offering
and any documents incorporated by reference herein or
therein.
Although we
presently believe that the plans, expectations and anticipated
results expressed in or suggested by the forward-looking statements
contained in or incorporated by reference into this prospectus are
reasonable, all forward-looking statements are inherently
subjective, uncertain and subject to change, as they involve
substantial risks and uncertainties, including those beyond our
control. New factors emerge from time to time, and it is not
possible for us to predict the nature, or assess the potential
impact, of each new factor on our business. Given these
uncertainties, we caution you not to place undue reliance on these
forward-looking statements. These forward-looking statements speak
only as of the date on which the statements were made and are not
guarantees of future performance. Except as may be required by
applicable law, we do not undertake or intend to update any
forward-looking statements after the date of this prospectus
supplement or the respective dates of documents incorporated herein
or therein or any free writing prospectus provided in connection
with this offering that include forward-looking
statements.
The above list
of risks and uncertainties is only a summary of some of the most
important factors and is not intended to be exhaustive. Additional
information regarding risk factors that may affect us is included
in our Annual Report on Form 10-K for the year ended
December 31, 2018 and certain other documents we file with the
SEC. The risk factors contained in our Annual Report are updated by
us from time to time in Quarterly Reports on Form 10-Q,
Current Reports on Form 8-K and other filings we make with the
SEC.
S-4
Table of
Contents
SUMMARY
This
summary highlights selected information contained elsewhere or
incorporated by reference in this prospectus supplement and the
accompanying prospectus. This summary may not contain all the
information that you should consider before investing in our
securities. You should read the entire prospectus supplement and
the accompanying prospectus carefully, including "Risk Factors"
contained in this prospectus supplement, the accompanying
prospectus and the documents incorporated by reference herein and
therein and the financial statements incorporated by reference in
this prospectus supplement and the accompanying prospectus, before
making an investment decision. This prospectus supplement may add
to, update or change information in the accompanying prospectus.
All references in this prospectus supplement or the accompanying
prospectus to "Plug Power," the "Company," "we," "us," or "our"
mean Plug Power Inc. and our subsidiaries, unless we state
otherwise or the context otherwise requires.
Overview
We are a
leading provider of alternative energy technology focused on the
design, development, commercialization and manufacture of hydrogen
and fuel cell systems used primarily for the electric mobility and
stationary power markets. As part of the global drive to
electrification, we have recently leveraged product proven in the
material handling vehicle space to enter new, adjacent, electric
vehicle markets, specifically electric delivery vans.
We are focused
on proton exchange membrane, or PEM, fuel cell and fuel processing
technologies, fuel cell/battery hybrid technologies, and associated
hydrogen storage and dispensing infrastructure from which multiple
products are available. A fuel cell is an electrochemical device
that combines hydrogen and oxygen to produce electricity and heat
without combustion. Hydrogen is derived from hydrocarbon fuels such
as liquid petroleum gas, or LPG, natural gas, propane,
methanol, ethanol, gasoline or biofuels. We develop complete
hydrogen generation, delivery, storage and refueling solutions for
customer locations. Currently, we obtain the majority of our
hydrogen by purchasing it from fuel suppliers for resale to
customers.
In our core
business, we provide and continue to develop commercially-viable
hydrogen and fuel cell product solutions to replace lead-acid
batteries in electric material handling vehicles and industrial
trucks for some of the world's largest retail-distribution and
manufacturing businesses. We are focusing our efforts on industrial
mobility applications (electric forklifts and electric industrial
vehicles) at multi-shift high volume manufacturing and high
throughput distribution sites where our products and services
provide a unique combination of productivity, flexibility and
environmental benefits. Additionally, we manufacture and sell fuel
cell products to replace batteries and diesel generators in
stationary backup power applications. These products prove valuable
with telecommunications, transportation and utility customers as
robust, reliable and sustainable power solutions.
Business Strategy
We are
committed to developing effective, economical and reliable fuel
cell related products, systems and services for businesses and
government agencies. Building on our substantial fuel cell
application and product integration experience, we are focused on
generating strong relationships with customers who value increased
reliability, productivity and energy security.
Our business
strategy leverages our unique fuel cell application and integration
knowledge to identify early adopter markets for which we can design
and develop innovative systems and customer solutions that provide
superior value, ease-of-use and environmental design.
Our primary
marketing strategy is to focus our resources on the material
handling market. Through established customer relationships, we
have proven ourselves as a trusted partner with a reliable fuel
cell solution. We have made significant progress in penetrating the
material handling market, supported
S-5
Table of
Contents
through the deployment of over 29,000 GenDrive units into
commercial applications. We believe we have developed reliable
products which allow the end customers to eliminate incumbent power
sources from their operations and realize their sustainability
objectives through clean energy alternatives. In addition, we have
deployed our GenKey hydrogen and fuel cell solution to multiple
customer sites.
Our operating
strategy also includes the following objectives: decrease product
and service costs, expand system reliability, improve service and
post-sales support experience.
Our longer-term
objectives are to deliver economic, social, and environmental
benefits in terms of reliable, clean, cost-effective fuel cell
solutions and, ultimately, productivity.
We believe
continued investment in research and development is critical to the
development and enhancement of innovative products, technologies
and services. In addition to evolving our direct hydrogen fueled
systems, we continue to capitalize on our investment and expertise
in power electronics, controls, and software design.
We continue to
develop and monitor future fuel cell solutions that align with our
evolving product roadmap. By leveraging our current GenDrive
architecture, Plug Power is evaluating adjacent markets such as
ProGen electric vehicles, ground support equipment and fuel cell
vehicles.
Business Organization
We manage our
business as a single operating segment, emphasizing shared learning
across end-user applications and common supplier/vendor
relationships.
Products and Services
In our core
business, we provide and continue to develop commercially-viable
hydrogen and fuel cell product solutions to replace lead-acid
batteries in electric material handling vehicles and industrial
trucks for some of the world's largest distribution and
manufacturing businesses. We are focusing our efforts on industrial
mobility applications (electric forklifts and electric industrial
vehicles) at multi-shift high volume manufacturing and high
throughput distribution sites where our products and services
provide a unique combination of productivity, flexibility and
environmental benefits. Additionally, we manufacture and sell fuel
cell products to replace batteries and diesel generators in
stationary backup power applications. These products prove valuable
with telecommunications, transportation and utility customers as
robust, reliable and sustainable power solutions.
Our current
products and services include:
GenDrive: GenDrive is our hydrogen fueled PEM
fuel cell system providing power to material handling electric
vehicles, including class 1, 2, 3 and 6 electric forklifts and
ground support equipment.
GenFuel: GenFuel is our hydrogen fueling
delivery, generation, storage and dispensing system.
GenCare: GenCare is our ongoing 'internet of
things'-based maintenance and on-site service program for GenDrive
fuel cells, GenSure products, GenFuel products and ProGen
engines.
GenSure: GenSure is our stationary fuel cell
solution providing scalable, modular PEM fuel cell power to support
the backup and grid-support power requirements of the
telecommunications, transportation, and utility sectors.
GenKey: GenKey is our turn-key solution
combining either GenDrive or GenSure power with GenFuel fuel and
GenCare aftermarket service, offering complete simplicity to
customers transitioning to fuel cell power.
ProGen: ProGen is our fuel cell stack and
engine technology currently used globally in mobility and
stationary fuel cell systems, and as engines in electric delivery
vans.
S-6
Table of
Contents
We provide our
products worldwide through our direct product sales force, and by
leveraging relationships with original equipment manufacturers and
their dealer networks. We manufacture our commercially-viable
products in Latham, New York.
To promote fuel
cell adoption and maintain post-sale customer satisfaction, we
offer a range of service and support options through extended
maintenance contracts. Additionally, customers may waive our
service option and choose to service their systems independently. A
high percentage of fuel cells sold in recent years were bundled
with maintenance contracts. As a result, only approximately 0.2% of
fuel cells deployed are still under standard warranty that is not a
part of an extended maintenance contract.
Markets/Geography and Order Status
Our products
and services predominantly serve the North American and European
material handling markets, and primarily support large to mid-sized
fleet, multi-shift operations in high-volume manufacturing and
high-throughput distribution centers. Orders for our products and
services approximated $163.7 million for the nine months ended
September 30, 2019 and $225.0 million for the year ended
December 31, 2018. Our backlog for products and services
approximated $733.2 million and $540.0 million as of
September 30, 2019 and December 31, 2018, respectively.
Our backlog at any given time is comprised of fuel cells, hydrogen
installations, maintenance services, and hydrogen fuel deliveries.
The specific elements of the backlog will vary in terms of timing
of delivery and can vary between 90 days to seven years, with
fuel cells and hydrogen installations being delivered near term and
maintenance services and hydrogen fuel deliveries being delivered
over a longer period of time. Historically, shipments made against
product orders generally occur between ninety days and twenty-four
months from the date of acceptance of the order.
For the nine
months ended September 30, 2019, 62.4% of our total
consolidated revenues were associated primarily with three
customers. For purposes of assigning a customer to a sale/leaseback
transaction completed with a financial institution, we consider the
end user of the assets to be the ultimate customer. A loss or
decline in business with any of these customers could have an
adverse impact on our business, financial condition and results of
operations.
We assemble our
products at our manufacturing facilities in Latham, New York,
Clifton Park, New York, Rochester, New York, and Spokane,
Washington, and provide our services and installations at customer
locations and service centers in Illinois and Ohio. Currently, the
supply and manufacture of varied critical components used in our
products and services are performed by sole-sourced third-party
vendors in the United States, Canada and China.
Distribution, Marketing and Strategic Relationships
We have
developed strategic relationships with well-established companies
in key areas including distribution, service, marketing, supply,
technology development and product development. We sell our
products worldwide, with a primary focus on North America, through
our direct product sales force, original equipment manufacturers
and their dealer networks. Additionally, we operate in Europe under
the name HyPulsion to develop and sell hydrogen fuel cell systems
for the European material handling market.
Competition
We are
confronted by competition in all areas of our business. The markets
we address for motive power are characterized by the presence of
well-established battery and combustion generator products. The
principal competitive factors in the markets in which we operate
include product features, including size and weight, relative price
and performance, product quality and reliability, design
innovation, marketing and distribution capability, service and
support and corporate reputation.
S-7
Table of
Contents
In the material
handling market, we believe our GenDrive products have an advantage
over lead-acid batteries for customers who run high-throughput
distribution centers and manufacturing locations with multi-shift
operations by offering increased productivity with lower
operational costs. However, we expect competition in this space to
intensify as competitors attempt to imitate our approach with their
own offerings.
Intellectual Property
We believe that
neither we nor our competitors can achieve a significant
proprietary position on the basic technologies currently used in
PEM fuel cell systems. However, we believe the design and
integration of our system and system components, as well as some of
the low-cost manufacturing processes that we have developed, are
intellectual property that can be protected. Our intellectual
property portfolio covers among other things: fuel cell components
that reduce manufacturing part count; fuel cell system designs that
lend themselves to mass manufacturing; improvements to fuel cell
system efficiency, reliability and system life; and control
strategies, such as added safety protections and operation under
extreme conditions. In general, our employees are party to
agreements providing that all inventions, whether patented or not,
made or conceived while being our employee, which are related to or
result from work or research that we perform, will remain our sole
and exclusive property.
We have a total
of 118 issued patents currently active with the USPTO and four U.S.
patent applications pending. Additionally, we have 19 trademarks
registered with the USPTO.
Government Regulation
Our products,
their installations, and the operations at our facilities are
subject to oversight and regulation at the federal, state and local
level in accordance with statutes and ordinances relating to, among
others, environmental matters, building codes, fire codes, public
safety, electrical and gas pipeline connections and hydrogen
siting. The level of regulation may depend, in part, upon where a
system is located.
In addition,
product safety standards have been established by the American
National Standards Institute, or ANSI, covering the overall fuel
cell system. The class 1, 2 and 3 GenDrive products are
designed with the intent of meeting the requirements of UL 2267
"Fuel Cell Power Systems for Installation in Industrial Electric
Trucks" and NFPA 505 "Fire Safety Standard for Powered Industrial
Trucks." The hydrogen tanks used in these systems have been either
certified to ANSI/CSA NGV2-2007 "Compressed natural gas vehicle
fuel containers" or ISO/TS 15869 "Gaseous hydrogen and hydrogen
blends—Land vehicle fuel tanks." We will continue to design our
GenDrive products to meet ANSI and/or other applicable standards.
We certified several models of Class 1, 2 and 3 GenDrive
products to the requirements of the CE mark with guidance from a
European certified body. The hydrogen tanks used in these systems
are certified to the Pressure Equipment Directive by a European
certified body.
The GenFuel
hydrogen storage and dispensing products are designed with the
intent of meeting the requirements of NFPA 2 "Hydrogen Technologies
Code."
Other than
these requirements, at this time we do not know what additional
requirements, if any, each jurisdiction will impose on our products
or their installation. We also do not know the extent to which any
new regulations may impact our ability to distribute, install and
service our products. As we continue distributing our systems to
our target markets, the federal, state, local or foreign government
entities may seek to impose regulations or competitors may seek to
influence regulations through lobbying efforts.
Raw Materials and Suppliers
Most components
essential to our business are generally available from multiple
sources. We believe there are component suppliers and manufacturing
vendors whose loss to us could have a material adverse
S-8
Table of
Contents
effect upon our business and financial condition. We are
mitigating these potential risks by introducing alternate system
architectures which we expect will allow us to diversify our supply
chain with multiple fuel cell stack and air supply component
vendors. We are also working closely with these vendors and other
key suppliers on coordinated product introduction plans, strategic
inventories, and internal and external manufacturing schedules and
levels.
Research and Development
Because the
fuel cell industry is characterized by its early state of adoption,
our ability to compete successfully is heavily dependent upon our
ability to ensure a continual and timely flow of competitive
products, services, and technologies to the marketplace. We
continue to develop new products and technologies and to enhance
existing products in the areas of cost, size, weight, and in
supporting service solutions in order to drive further
commercialization. We may also expand the range of our product
offerings and intellectual property through licensing and/or
acquisition of third-party business and technology.
Corporate Information
We were
organized in the State of Delaware on June 27, 1997. Our
principal executive offices are located at 968 Albany-Shaker Road,
Latham, New York, 12110, and our telephone number
is (518) 782-7700. Our corporate website address is
www.plugpower.com. The information found on, or otherwise
accessible through, our website is not deemed to be a part of this
prospectus or any applicable prospectus supplement. Our common
stock trades on the Nasdaq Capital Market under the symbol "PLUG."
As of September 30, 2019, we had 756 employees, including 141
temporary employees.
S-9
Table of
Contents
THE OFFERING
|
|
|
Common stock to be offered by us
|
|
40,000,000 shares of our common stock. |
Option to purchase additional shares from
us
|
|
We have granted the underwriters an option for 30 days from
the date of this prospectus supplement to purchase up to 6,000,000
additional shares of our common stock.
|
Common stock to be outstanding immediately following
this offering
|
|
shares
(or shares
if the underwriter's option to purchase additional shares from us
is exercised in full).
|
Use of proceeds
|
|
We estimate that the net proceeds from this offering will be
approximately
$ million
(or approximately
$ million
if the underwriters exercise their option to purchase additional
shares in full), after deducting the underwriting discounts and
commissions and estimated offering expenses payable by us. We
intend to use the net proceeds from this offering for working
capital and other general corporate purposes, including capital
expenditures. See "Use of Proceeds."
|
Risk factors
|
|
Investing in our common stock involves a high degree of risk. See
"Risk Factors" and other information included in this prospectus
supplement, the accompanying prospectus and the documents
incorporated by reference in this prospectus supplement and the
accompanying prospectus for a discussion of factors you should
carefully consider before deciding to invest in shares of our
common stock.
|
Nasdaq Capital Market Symbol
|
|
PLUG.
|
The number of
shares of our common stock to be outstanding after this offering is
based on 253,121,439 shares of common stock outstanding as of
September 30, 2019. Unless specifically stated otherwise, the
information in this prospectus supplement is as of
September 30, 2019 and excludes:
- •
- 23,597,871 shares of common stock issuable upon the exercise of
stock options, at a weighted average exercise price of $2.44 per
share;
- •
- 4,333,560 shares of common stock issuable upon the vesting of
restricted stock units;
- •
- 115,824,142 shares of common stock issuable upon the exercise
of warrants;
- •
- 2,782,076 shares of common stock issuable upon conversion of
the Series C Redeemable Convertible Preferred Stock, or the
Series C Preferred Stock, at a conversion price of $0.2343 per
share;
- •
- 12,237,762 shares of common stock issuable upon conversion of
the Series E Convertible Preferred Stock, or the Series E
Preferred Stock, at a conversion price of $2.31 per share;
and
- •
- 43,630,020 shares of common stock issuance upon conversion of
the 5.5% Convertible Senior Notes due March 2023 at a conversion
price of $2.29 per share;
- •
- 15,503,876 shares of common stock issuable upon conversion of
the 7.5% Convertible Senior Note due January 2023 at a conversion
price of $2.58 per share;
- •
- 861,139 shares of common stock in treasury; and
S-10
Table of
Contents
- •
- 8,373,467 shares of our common stock reserved for future
issuance under our equity incentive plans.
Except as
otherwise indicated, the information in this prospectus supplement
assumes no exercise by the underwriters of their option to purchase
additional shares of our common stock from us.
S-11
Table of
Contents
SUMMARY SELECTED CONSOLIDATED FINANCIAL
DATA
The following
table presents our summary selected consolidated financial and
other data. The summary selected consolidated financial and other
data should be read in conjunction with our consolidated financial
statements and the related notes thereto and the related
"Management's Discussion and Analysis of Financial Condition and
Results of Operations" in our
Form 10-K for the year ended December 31, 2018 and in
our subsequent reports on Form 10-Q for the quarterly periods
ended
March 31, 2019,
June 30, 2019 and
September 30, 2019, each of which is incorporated by
reference herein. The consolidated statements of operations data
for the years ended December 2018, 2017 and 2016 and the balance
sheet data as of December 31, 2018 and 2017 are derived from
the audited consolidated financial statements in our Form 10-K
for the year ended December 31, 2018 incorporated by reference
herein, and the balance sheet data as of December 31, 2016 is
derived from the audited consolidated financial statements in our
Form 10-K of the year ended December 31, 2017 not
incorporated by reference herein. The unaudited consolidated
statement of operations data for the nine months ended
September 30, 2019 and 2018 and the unaudited balance sheet
data as of September 30, 2019 are derived from the unaudited
consolidated financial statements in our Quarterly Report on
Form 10-Q for the quarterly period ended September 30,
2019 incorporated by reference herein, and the unaudited balance
sheet data as of September 30, 2018 are derived from the
unaudited consolidated financial statement in our Quarterly Report
on Form 10-Q for the quarterly period ended September 30,
2018 not incorporated by reference herein. These unaudited
consolidated financial statements have been prepared on a basis
consistent with our audited consolidated financial statements and,
in the opinion of management, reflect all adjustments, consisting
of only normal and recurring adjustments necessary for a fair
presentation of our results of operations, financial position and
cash flows for the period presented. Our historical results are not
necessarily indicative of the results that may be expected in the
future, and our interim period results are not necessarily
indicative of results to be expected for a full year or any other
interim period.
S-12
Table of
Contents
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months
Ended September 30, |
|
Year ended December 31, |
|
|
|
2019 |
|
2018 |
|
2018 |
|
2017 |
|
2016 |
|
|
|
(unaudited)
|
|
(unaudited)
|
|
|
|
|
|
|
|
|
|
(in thousands, except share and per share
data)
|
|
Statements Of Operations:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net revenue:(1)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of fuel cell systems and related
infrastructure
|
|
$ |
78,932 |
|
$ |
66,101 |
|
$ |
107,292 |
|
$ |
62,631 |
|
$ |
39,985 |
|
Services performed on fuel cell systems and related
infrastructure(2)
|
|
|
17,415 |
|
|
16,330 |
|
|
22,002 |
|
|
16,202 |
|
|
17,347 |
|
Power Purchase Agreements(3)
|
|
|
16,613 |
|
|
16,365 |
|
|
22,869 |
|
|
12,869 |
|
|
13,687 |
|
Fuel delivered to customers
|
|
|
18,942 |
|
|
16,016 |
|
|
22,469 |
|
|
8,167 |
|
|
10,916 |
|
Other
|
|
|
135 |
|
|
— |
|
|
— |
|
|
284 |
|
|
884 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net revenue
|
|
|
132,037 |
|
|
114,812 |
|
|
174,632 |
|
|
100,153 |
|
|
82,819 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost of revenue:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Sales of fuel cell systems and related
infrastructure
|
|
|
50,440 |
|
|
52,927 |
|
|
84,439 |
|
|
54,815 |
|
|
29,543 |
|
Services performed on fuel cell systems and related
infrastructure(2)
|
|
|
18,802 |
|
|
17,139 |
|
|
23,698 |
|
|
19,814 |
|
|
19,071 |
|
Provision for loss contracts related to
service
|
|
|
— |
|
|
— |
|
|
— |
|
|
— |
|
|
(1,071 |
) |
Power Purchase Agreements(4)
|
|
|
28,064 |
|
|
27,055 |
|
|
36,161 |
|
|
31,292 |
|
|
16,601 |
|
Fuel delivered to customers
|
|
|
25,935 |
|
|
19,576 |
|
|
27,712 |
|
|
22,013 |
|
|
13,864 |
|
Other
|
|
|
150 |
|
|
— |
|
|
— |
|
|
308 |
|
|
865 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of revenue
|
|
|
123,391 |
|
|
116,697 |
|
|
172,010 |
|
|
128,242 |
|
|
78,873 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit (loss)
|
|
|
8,646 |
|
|
(1,885 |
) |
|
2,622 |
|
|
(28,089 |
) |
|
3,946 |
|
Operating expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Research and development
|
|
|
24,334 |
|
|
25,477 |
|
|
33,907 |
|
|
28,693 |
|
|
21,177 |
|
Selling, general and administrative
|
|
|
33,351 |
|
|
29,202 |
|
|
38,198 |
|
|
45,010 |
|
|
34,288 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total operating expenses
|
|
|
57,685 |
|
|
54,679 |
|
|
72,105 |
|
|
73,703 |
|
|
55,465 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating loss
|
|
|
(49,039 |
) |
|
(56,564 |
) |
|
(69,483 |
) |
|
(101,792 |
) |
|
(51,519 |
) |
Loss before income taxes
|
|
$ |
(73,728 |
) |
$ |
(68,849 |
) |
$ |
(87,332 |
) |
$ |
(127,080 |
) |
$ |
(57,879 |
) |
Income tax benefit
|
|
|
— |
|
|
7,581 |
|
|
9,217 |
|
|
— |
|
|
392 |
|
Net loss attributable to the Company
|
|
$ |
(73,728 |
) |
$ |
(61,268 |
) |
$ |
(78,115 |
) |
$ |
(127,080 |
) |
$ |
(57,487 |
) |
Preferred stock dividends declared and accretion of
discount
|
|
|
(39 |
) |
|
(39 |
) |
|
(52 |
) |
|
(3,098 |
) |
|
(104 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net loss attributable to common
stockholders
|
|
$ |
(73,767 |
) |
$ |
(61,307 |
) |
$ |
(78,167 |
) |
$ |
(130,178 |
) |
$ |
(57,591 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss per share, basic and diluted
|
|
$ |
(0.32 |
) |
$ |
(0.28 |
) |
$ |
(0.36 |
) |
$ |
(0.60 |
) |
$ |
(0.32 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted average number of common stock
outstanding
|
|
|
229,519,323 |
|
|
218,930,891 |
|
|
218,882,337 |
|
|
216,343,985 |
|
|
180,619,860 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance Sheet Data:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(at end of the period)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrestricted cash and cash equivalents
|
|
$ |
43,275 |
|
$ |
13,825 |
|
$ |
38,602 |
|
$ |
24,828 |
|
$ |
46,014 |
|
Total Assets
|
|
|
556,009 |
|
|
319,278 |
|
|
390,326 |
|
|
270,810 |
|
|
240,832 |
|
Noncurrent liabilities(5)
|
|
|
417,620 |
|
|
187,069 |
|
|
209,600 |
|
|
80,734 |
|
|
79,637 |
|
Stockholders' equity
|
|
|
(14,406 |
) |
|
14,405 |
|
|
2,713 |
|
|
73,646 |
|
|
85,088 |
|
Working capital
|
|
|
70,452 |
|
|
6,732 |
|
|
9,245 |
|
|
3,886 |
|
|
44,448 |
|
- (1)
- Revenue amounts reported in prior periods have been
reclassified to be presented net of provision for common stock
warrants, as referenced in Note 2, "Summary of Significant
Accounting Policies" to our consolidated financial statements in
our Annual Report for the year ended December 31, 2018.
- (2)
- Presentation of certain service arrangements and the
amortization of the associated finance obligations has been
corrected in the 2017 and 2016 selected consolidated financial
data. See Note 2, "Summary of Significant Accounting Policies"
to our consolidated financial statements in our Annual Report for
the year ended December 31, 2018.
- (3)
- Revenue from Power Purchase Agreements represents payments
received from customers for power generated through the provision
of equipment and service.
S-13
Table of
Contents
- (4)
- Cost of revenue from Power Purchase Agreements includes
payments made to financial institutions for leased equipment and
service used to fulfill the Power Purchase Agreements, and
depreciation of leased property.
- (5)
- Effective January 1, 2018, we early adopted ASC Topic 842,
Leases (ASC Topic 842). The most significant impact was the
recognition of right of use assets and finance obligations for
operating leases on the consolidated balance sheet, as well as
recognition of gross profit on sale/leaseback transactions. See
Note 2, "Summary of Significant Accounting Policies" to our
consolidated financial statements in our Annual Report for the year
ended December 31, 2018.
S-14
Table of
Contents
RISK FACTORS
Investing
in our common stock involves a high degree of risk. Before
investing in our common stock, you should carefully consider the
risks described below, together with all of the other information
contained in this prospectus supplement, and accompanying
prospectus and incorporated by reference herein and therein,
including from our most recent Annual Report on Form 10-K and
subsequent Quarterly Reports on Form 10-Q as well as any
amendment or update to our risk factors reflected in subsequent
filings with the SEC. Some of these factors relate principally to
our business and the industry in which we operate. Other factors
relate principally to your investment in our securities. The risks
and uncertainties described below are not the only risks facing us.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also materially and adversely
affect our business and operations. If any of the matters included
in the following risks were to occur, our business, financial
condition, results of operations, cash flows or prospects could be
materially and adversely affected. In such case, you may lose all
or part of your investment.
Risks Related to this Offering and Our Common Stock
We have incurred losses and anticipate continuing to incur
losses.
We have not
achieved operating profitability in any quarter since our formation
and we will continue to incur net losses until we can produce
sufficient revenue to cover our costs. We incurred net losses
attributable to common stockholders of $73.8 million for the
nine months ended September 30, 2019 and $78.2 million,
$130.2 million and $57.6 million for the years ended
December 31, 2018, 2017, and 2016, respectively, and had an
accumulated deficit of $1.3 billion at September 30,
2019. We anticipate that we will continue to incur losses until we
can produce and sell our products on a large-scale and
cost-effective basis. We cannot guarantee when we will operate
profitably, if ever. In order to achieve profitability, we must
successfully execute our planned path to profitability in the early
adoption markets on which we are focused. The hydrogen
infrastructure that is needed to support our growth readiness and
cost efficiency must be available and cost efficient. We must
continue to shorten the cycles in our product roadmap with respect
to improvement in product reliability and performance that our
customers expect. We must execute on successful introduction of our
products into the market. We must accurately evaluate our markets
for, and react to, competitive threats in both other technologies
(such as advanced batteries) and our technology field. Finally, we
must continue to lower our products' build costs and lifetime
service costs. If we are unable to successfully take these steps,
we may never operate profitably, and, even if we do achieve
profitability, we may be unable to sustain or increase our
profitability in the future.
In addition,
the primary current value proposition for our customers stems from
productivity gains in using our solutions. Longer term, given
evolving market dynamics and changes in alternative energy tax
credits, if we are unable to successfully develop future products
that are competitive with competing technologies in terms of price,
reliability and longevity, customers may not buy our products. The
profitability of our products depends largely on material and
manufacturing costs and the market price of hydrogen. We cannot
guarantee that we will be able to lower these costs to the levels
to assure market acceptance in conjunction with other critical
customer criteria in performance and reliability.
We may require additional capital funding and such capital may not
be available to us.
On
September 30, 2019, we had cash and cash equivalents of
$43.3 million, restricted cash of $155.0 million and net
working capital of $70.5 million. This compares to
$38.6 million, $71.6 million and $9.2 million,
respectively, on December 31, 2018. Restricted cash becomes
available to us as we perform in accordance with the related
leasing agreements.
Our cash
requirements relate primarily to working capital needed to operate
and grow our business, including funding operating expenses, growth
in inventory to support both shipments of new units and servicing
the installed base, growth in equipment leased to customers under
long-term arrangements, funding the growth in our GenKey "turn-key"
solution, which includes the installation of our
customers'
S-15
Table of
Contents
hydrogen infrastructure as well as delivery of the hydrogen
fuel, continued expansion of our markets, such as Europe and China,
continued development and expansion of our products, such as Pro
Gen, payment of lease obligations under sale/leaseback financings,
and the repayment or refinancing of our long-term debt. Our ability
to achieve profitability and meet future liquidity needs and
capital requirements will depend upon numerous factors, including
the timing and quantity of product orders and shipments; attaining
and expanding positive gross margins across all product lines; the
timing and amount of our operating expenses; the timing and costs
of working capital needs; the timing and costs of building a sales
base; the ability of our customers to obtain financing to support
commercial transactions; our ability to obtain financing
arrangements to support the sale or leasing of our products and
services to customers, including financing arrangements to repay or
refinance our long-term debt, our ability to negotiate any
refinancing of our current liabilities with our lenders, and the
terms of such agreements that may require us to pledge or restrict
substantial amounts of our cash to support these financing
arrangements; the timing and costs of developing marketing and
distribution channels; the timing and costs of product service
requirements; the timing and costs of hiring and training product
staff; the extent to which our products gain market acceptance; the
timing and costs of product development and introductions; the
extent of our ongoing and new research and development programs;
and changes in our strategy or our planned activities. If we are
unable to fund our operations with positive cash flows and cannot
obtain external financing, we may not be able to sustain future
operations. As a result, we may be required to delay, reduce and/or
cease our operations and/or seek bankruptcy protection.
We cannot
assure you that any necessary additional financing will be
available on terms favorable to us, or at all. We believe that it
could be difficult to raise additional funds and there can be no
assurance as to the availability of additional financing or the
terms upon which additional financing may be available.
Additionally, even if we raise sufficient capital through
additional equity or debt financings, strategic alternatives or
otherwise, there can be no assurance that the revenue or capital
infusion will be sufficient to enable us to develop our business to
a level where it will be profitable or generate positive cash flow.
If we raise additional funds through the issuance of equity or
convertible debt securities, the percentage ownership of our
existing stockholders could be significantly diluted, and these
newly issued securities may have rights, preferences or privileges
senior to those of existing stockholders. If we incur additional
debt, a substantial portion of our operating cash flow may be
dedicated to the payment of principal and interest on such
indebtedness, thus limiting funds available for our business
activities. If we are able to refinance our indebtedness, there can
be no assurance that the refinanced terms will be attractive to us.
The terms of any debt securities issued, including those that we
may be able to refinance, could also impose significant
restrictions on our operations. Broad market and industry factors
may seriously harm the market price of our common stock, regardless
of our operating performance, and may adversely impact our ability
to raise additional funds. If we raise additional funds through
collaborations and/or licensing arrangements, we might be required
to relinquish significant rights to our technologies or grant
licenses on terms that are not favorable to us.
We may not have the cash necessary to redeem the Series E
Preferred Stock.
We have the
obligation to make monthly redemption payments on the Series E
Preferred Stock, which mandatory redemption payments may each be
made at our option in cash or in shares of our common stock, except
that our right to make payment in shares of common stock is
dependent upon our satisfying certain equity conditions. Among
other things, these equity conditions include our continued listing
on the Nasdaq Capital Market or another permitted exchange (as
described in more detail below), and our stock maintaining certain
minimum average trading volumes during the applicable measurement
period. If we cannot satisfy the equity conditions, we will not be
able to make our monthly mandatory redemption payments in stock,
and we would be forced to make such monthly payments in cash. We
may not have sufficient cash resources at the applicable time to
make those cash payments, or to make such cash payments in
full.
S-16
Table of
Contents
Any failure to
pay any amounts due to the holders of the Series E Preferred
Stock, as well as certain other "triggering events," including,
without limitation, our failure to timely deliver shares, our
suspension of trading, our failure to keep reserved for issuance an
adequate number of shares of common stock to cover conversion of
the Series E Preferred Stock, and breaches of certain
representations, warranties and covenants that are not timely
cured, where a cure period is permitted, would permit the holders
of our preferred shares to compel our redemption of such
Series E Preferred Stock in cash at a price per share equal to
the greater of (i) 125% of the stated value of the
Series E Preferred Stock being redeemed and accrued dividends
and (ii) the market value of the number of shares into which
the Series E Preferred Stock, plus accrued dividends, could be
converted by the holder at the time a notice of redemption is
delivered by the holder, valued at the greatest closing sales price
during the period from the date immediately before the triggering
event through the date we make the redemption payment. If we are
delisted from the Nasdaq Capital Market, without obtaining a
listing on another national securities exchange, it would
constitute a "triggering event" under the certificate of
designations. Thus, if we are delisted from the Nasdaq Capital
Market, or if for any other reason we are required to repurchase
the Series E Preferred Stock in cash prior to maturity, no
assurance can be given that we would have the cash or financial
resources available to us to make such a payment, and such an
acceleration could have a material adverse effect on our business
and financial condition and may impair our ability to continue in
business as a going concern.
The Series E Preferred Stock and the Series C Preferred
Stock are senior obligations of ours and rank senior to our common
stock with respect to dividends, distributions and payments upon
liquidation.
The rights of
the holders of the Series E Preferred Stock and the
Series C Preferred Stock rank senior to the obligations to our
common stock holders. Upon our liquidation, the holders of
Series E Preferred Stock are entitled to receive an amount per
share of Series E Preferred Stock equal to the greater of
(A) 125% of the conversion amount thereof on the date of such
payment and (B) the amount per share such holder would receive
if such holder converted such Series E Preferred Stock into
Common Stock immediately prior to the date of such payment.
Further, the holders of Series E Preferred Stock have the
right to participate in any payment of dividends or other
distributions made to the holders of common stock to the same
extent as if they had converted such shares of Series E
Preferred Stock. The existence of senior securities could have an
adverse effect on the value of our common stock.
Holders of the Series E Preferred Stock have rights that may
restrict our ability to operate our business.
Under the
certificate of designations establishing the terms of the
Series E Preferred Stock, we are subject to certain covenants
that limit our ability to create new series of preferred stock,
other than series junior to the Series E Preferred Stock. Such
restrictions may have an adverse effect on our ability to operate
our business while the shares of Series E Preferred Stock are
outstanding.
Our stockholders will experience immediate and substantial dilution
in the net tangible book value per share of the common stock you
purchase in this offering and may experience further dilution in
the future.
The public
offering price of the common stock offered pursuant to this
prospectus supplement is substantially higher than the net tangible
book value (deficit) per share of our common stock. Therefore, you
will incur immediate and substantial dilution of
$ per
share of common stock purchased in this offering. See "Dilution"
below for a more detailed discussion of the dilution investors in
this offering will incur if they purchase shares in this offering.
In addition, we have a significant number of outstanding
convertible notes, convertible preferred stock, warrants and stock
options. As of the date hereof, we have 43,630,020 shares of common
stock issuable upon conversion of the 5.5% Convertible Senior Notes
due March 2023 at a conversion price of $2.29 per share, 15,503,876
shares of common stock issuable upon conversion of the 7.5%
Convertible Senior Note due January 2023 at a conversion price of
$2.58 per share, 2,782,076 shares of common stock issuable upon
conversion of the Series C Preferred Stock at a
conversion
S-17
Table of
Contents
price of $0.2343 per share, and 3,496,503 shares of common
stock issuable upon conversion of the Series E Preferred Stock
at a conversion price of $2.31 per share. In addition, as of the
date hereof, we have outstanding options exercisable for an
aggregate of 23,064,257 shares of common stock at a weighted
average exercise price of $2.45 per share and 110,573,392 shares of
common stock issuable upon the exercise of warrants. Moreover,
subject to market conditions and other factors, we may conduct
future offerings of equity or debt securities. The conversion of
the notes or preferred stock or the exercise of outstanding options
and warrants and future equity issuances will result in dilution to
investors. The market price of our common stock could fall as a
result of resales of any of these shares of common stock due to an
increased number of shares available for sale in the
market.
Our stock price and stock trading volume have been and could remain
volatile.
The market
price of our common stock has historically experienced and may
continue to experience significant volatility. From January 1,
2019 through November 29, 2019, the closing sales prices of
our common stock fluctuated from a high of $4.00 per share to a low
of $1.26 per share. Our progress in developing and commercializing
our products, our quarterly operating results, announcements of new
products by us or our competitors, our perceived prospects, changes
in securities analysts' recommendations or earnings estimates,
changes in general conditions in the economy or the financial
markets, adverse events related to our strategic relationships,
significant sales of our common stock by existing stockholders,
including one or more of our strategic partners, and other
developments affecting us or our competitors could cause the market
price of our common stock to fluctuate substantially. In addition,
in recent years, the stock market has experienced significant price
and volume fluctuations. This volatility has affected the market
prices of securities issued by many companies for reasons unrelated
to their operating performance and may adversely affect the price
of our common stock. Such market price volatility could adversely
affect our ability to raise additional capital. In addition, we may
be subject to securities class action litigation as a result of
volatility in the price of our common stock, which could result in
substantial costs and diversion of management's attention and
resources and could harm our stock price, business, prospects,
results of operations and financial condition.
Future sales of a significant number of shares of our common stock
or other dilution of our equity could depress the market price of
our common stock.
Sales of a
substantial number of shares of our common stock in the public
market could occur at any time. These sales, or the market
perception that the holders of a large number of shares intend to
sell shares, could reduce the market price of our common stock.
Additionally, we are not restricted from issuing additional shares
of our common stock, including any securities that are convertible
into or exchangeable for, or that represent the right to receive,
our common stock. The market price of our common stock could
decline as a result of sales of shares of our common stock or sales
of such other securities made after this offering or the perception
that such sales could occur.
If securities or industry analysts do not publish, or cease
publishing, research or reports about us, our business or our
market, or if they change their recommendations regarding our stock
adversely, our stock price and trading volume could
decline.
The trading
market for our common stock is influenced by the research and
reports that industry or securities analysts may publish about us,
our business, our market or our competitors. If any of these
analysts who may cover us change their recommendation regarding our
stock adversely, or provide more favorable relative recommendations
about our competitors, our stock price would likely decline. If any
analyst who may cover us were to cease coverage of our company or
fail to regularly publish reports on us, we could lose visibility
in the financial markets, which in turn could cause our stock price
or trading volume to decline.
S-18
Table of
Contents
Our management will have broad discretion in the use of the net
proceeds we receive in this offering and might not apply the
proceeds in ways that increase the value of your
investment.
Our management
will have broad discretion over the use of our net proceeds from
this offering, and you will be relying on the judgment of our
management regarding the application of these proceeds. Our
management might not apply our net proceeds in ways that ultimately
increase the value of your investment and we might not be able to
yield a significant return, if any, on any investment of these net
proceeds. Our failure to apply these funds effectively could have a
material adverse effect on our business, delay the development of
our products and cause the price of our common stock to
decline.
We have not paid cash dividends to our stockholders and currently
have no plans to pay future cash dividends.
We plan to
retain earnings to finance future growth and have no current plans
to pay cash dividends to our stockholders. Because we have not paid
cash dividends, holders of our securities will experience a gain on
their investment in our securities only in the case of an
appreciation of value of our securities. You should neither expect
to receive dividend income from investing in our securities nor an
appreciation in value.
Provisions in our charter documents and Delaware law may discourage
or delay an acquisition that stockholders may consider favorable,
which could decrease the value of our common
stock.
Our certificate
of incorporation, our bylaws, and Delaware corporate law contain
provisions that could make it harder for a third party to acquire
us without the consent of our board of directors. These provisions
include those that: authorize the issuance of up to 5,000,000
shares of preferred stock in one or more series without a
stockholder vote; limit stockholders' ability to call special
meetings; establish advance notice requirements for nominations for
election to our board of directors or for proposing matters that
can be acted on by stockholders at stockholder meetings; and
provide for staggered terms for our directors. In addition, in
certain circumstances, Delaware law imposes restrictions on mergers
and other business combinations between us and any holder of 15% or
more of our outstanding common stock.
If we fail to maintain an effective system of internal controls, we
may not be able to accurately report our financial results or
prevent fraud, which could harm our brand and operating
results.
Effective
internal controls over financial reporting are necessary for us to
provide reliable and accurate financial reports and effectively
prevent fraud. We have devoted significant resources and time to
comply with the internal control over financial reporting
requirements of the Sarbanes-Oxley Act of 2002. In addition,
Section 404 under the Sarbanes-Oxley Act of 2002 requires that
we assess the design and operating effectiveness of our controls
over financial reporting. We are currently required to have our
auditors attest to the effectiveness of our internal control over
financial reporting. Our compliance with the annual internal
control report requirement will depend on the effectiveness of our
financial reporting and data systems and controls. Inferior
internal controls increase the possibility of errors and could
cause investors to lose confidence in our reported financial
information, which could have a negative effect on the trading
price of our stock and our access to capital.
In addition,
our internal control systems rely on people trained in the
execution of the controls. Loss of these people or our inability to
replace them with similarly skilled and trained individuals or new
processes in a timely manner could adversely impact our internal
control mechanisms.
The requirements of being a public company may strain our
resources, divert management's attention and affect our ability to
attract and retain qualified board members and
officers.
As a public
company, we are subject to the reporting requirements of the
Securities Exchange Act of 1934 (the "Exchange Act"), the
listing requirements of the Nasdaq Capital Market and other
applicable securities rules and regulations. Compliance with these
rules and regulations increase our legal and
S-19
Table of
Contents
financial compliance costs, make some activities more
difficult, time-consuming or costly and increase demand on our
systems and resources. The Exchange Act requires, among other
things, that we file annual, quarterly and current reports with
respect to our business and operating results and maintain
effective disclosure controls and procedures and internal control
over financial reporting. To maintain and, if required, improve our
disclosure controls and procedures and internal control over
financial reporting to meet this requirement, significant resources
and management oversight may be necessary.
Changes in tax law could adversely affect our business and
financial condition.
The rules
dealing with U.S. federal, state, and local income taxation are
constantly under review by persons involved in the legislative
process and by the Internal Revenue Service and the U.S. Treasury
Department. Changes to tax laws (which changes may have retroactive
application) could adversely affect us or holders of our common
stock. In recent years, many such changes have been made and
changes are likely to continue to occur in the future. For example,
the Tax Cuts and Jobs Act, or the TCJA, was enacted in 2017 and
significantly reformed the Internal Revenue Code of 1986, as
amended, or the Code. The TCJA, among other things, contains
significant changes to corporate taxation, including reduction of
the corporate tax rate from a top marginal rate of 35% to a flat
rate of 21%, limitation of the tax deduction for net interest
expense to 30% of adjusted earnings (except for certain small
businesses), limitation of the deduction for net operating losses
to 80% of current year taxable income and elimination of net
operating loss carrybacks, in each case, for losses generated after
December 31, 2017 (though any such net operating losses may be
carried forward indefinitely), and the modification or repeal of
many business deductions and credits. Future changes in tax laws
could have a material adverse effect on our business, cash flow,
financial condition or results of operations. We urge investors to
consult with their legal and tax advisers regarding the
implications of the TCJA and other changes in tax laws on an
investment in our common stock.
Our ability to use our net operating loss carryforwards and certain
tax credit carryforwards may be subject to
limitation.
As of
December 31, 2018, we had federal net operating loss ("NOL")
carryforwards of $208.8 million, which begins to expire in
various amounts and at various dates in 2032 through 2037 (other
than federal NOL carryforwards generated after December 31,
2017, which are not subject to expiration). As of December 31,
2018, we also had federal research and development tax credit
carryforwards of $1.9 million, which begin to expire in 2033.
Under Sections 382 and 383 of the Code, changes in our
ownership may limit the amount of our NOL carryforwards and
research and development tax credit carryforwards that could be
utilized annually to offset our future taxable income, if any. This
limitation would generally apply in the event of a cumulative
change in ownership of the Company of more than 50 percentage
points within a three-year period. Based on studies of the changes
in ownership of the Company, it has been determined that a
Section 382 ownership change occurred in 2013 that limited the
amount of pre-change NOLs that can be used in future years. NOLs
incurred after the most recent ownership change are not subject to
Section 382 of the Code and are available for use in future
years. If we undergo an ownership change in connection with or
after this offering, our ability to utilize our NOL carryforwards
or research and development tax credit carryforwards could be
further limited by Sections 382 and 383 of the Code. In
addition, future changes in our stock ownership, many of which are
outside of our control, could result in an ownership change under
Sections 382 and 383 of the Code. Any such limitation may
significantly reduce our ability to utilize our NOL carryforwards
and research and development tax credit carryforwards generated in
taxable years ending before January 1, 2019 before they
expire. Our NOL carryforwards and research and development tax
credit carryforwards may also be impaired under state law.
Accordingly, we may not be able to utilize a material portion of
our NOL carryforwards or research and development tax credit
carryforwards.
S-20
Table of
Contents
USE OF PROCEEDS
Based on the
public offering price of
$ per
share of common stock, we estimate that the net proceeds to us from
the sale of the shares of common stock in this offering will be
approximately
$ million
(or approximately
$ if
the option to purchase additional shares is exercised in full by
the underwriters), after deducting the underwriting discounts and
commissions and estimated offering expenses payable by
us.
We intend to
use the net proceeds from this offering for working capital and
other general corporate purposes, including capital expenditures.
Until we use the net proceeds of this offering, we intend to invest
the funds in short-term, investment grade, interest-bearing
securities.
S-21
Table of
Contents
CAPITALIZATION
The following
table sets forth our cash and cash equivalents and capitalization
as of September 30, 2019:
- •
- on
an actual basis; and
- •
- on
an as-adjusted basis to give effect to this offering of 40,000,000
shares of common stock at a price of
$ per
share and after deducting the underwriting discounts and
commissions and estimated offering expenses payable by
us.
You should read
this table in conjunction with "Use of Proceeds" as well as our
consolidated financial statements and the related notes thereto
included elsewhere or incorporated by reference in this prospectus
supplement and the accompanying prospectus.
|
|
|
|
|
|
|
|
|
|
As of September 30, 2019 |
|
(dollars in thousands, except per share amounts)
|
|
Actual |
|
As Adjusted |
|
|
|
(unaudited)
|
|
Cash and cash equivalents
|
|
$ |
43,275 |
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted cash(1)
|
|
$ |
155,042 |
|
$ |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Long-term debt:
|
|
|
|
|
|
|
|
Generate Lending, LLC(2)
|
|
$ |
95,551 |
|
$ |
|
|
5.5% Convertible Senior Notes due March
2023
|
|
|
68,708 |
|
|
|
|
7.5% Convertible Senior Note due January
2023
|
|
|
39,052 |
|
|
|
|
Other long-term debt
|
|
|
490 |
|
|
|
|
|
|
|
|
|
|
|
|
Total debt
|
|
$ |
203,801 |
|
|
|
|
|
|
|
|
|
|
|
|
Redeemable Preferred Stock: $0.01 par value per
share, 5,000,000 shares authorized:
|
|
|
|
|
|
|
|
Series C Redeemable Convertible Preferred
Stock, $0.01 par value per share; 10,431 shares authorized; 2,620
shares issued and outstanding, actual and as adjusted
|
|
|
709 |
|
|
|
|
Series E Convertible Preferred Stock, $0.01 par
value per share; 35,000 shares authorized: 28,269 shares issued and
outstanding, actual and as
adjusted
|
|
|
25,746 |
|
|
|
|
Stockholders' equity:
|
|
|
|
|
|
|
|
Common Stock, $0.01 par value per share; 750,000,000
shares authorized; 253,121,439 shares issued and outstanding,
actual; shares
issued and outstanding, as adjusted
|
|
|
2,540 |
|
|
|
(5) |
Additional paid-in capital
|
|
|
1,347,398 |
|
|
|
|
Accumulated other comprehensive income
|
|
|
929 |
|
|
|
|
Accumulated deficit
|
|
|
(1,334,057 |
) |
|
|
|
Less common stock in treasury (861,139
shares)(3)
|
|
|
(31,216 |
) |
|
|
|
|
|
|
|
|
|
|
|
Total stockholders' equity
|
|
|
(14,406 |
) |
|
|
|
|
|
|
|
|
|
|
|
Total capitalization(4)
|
|
|
215,850 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
- (1)
- Reflects primarily cash required to be maintained in restricted
accounts securing the Company's finance obligations.
- (2)
- On
November 27, 2019, we amended the Loan and Security Agreement
with Generate Lending, LLC to provide for an incremental term
loan in the amount of $20 million. As of December 2,
2019, the amended Loan and Security Agreement provided for a
secured term loan facility in the amount of
S-22
Table of
Contents
$120 million and we had a total outstanding balance under
the secured term loan facility of approximately
$115,319,000.
- (3)
- Common stock in treasury excludes 14,397,906 shares associated
with the purchase of a common stock forward for $27.5 million.
The shares associated with the purchase of a common stock forward
are classified as common stock in treasury under U.S. generally
accepted accounting principles, and are reported as such in our
consolidated financial statements.
- (4)
- Total capitalization is equal to the sum of total debt,
Series C Preferred Stock, Series E Preferred Stock, and
total stockholders' equity.
- (5)
- Assumes no exercise of the underwriters' option to purchase up
to an additional 6,000,000 shares of our common stock.
The foregoing
table and discussion are based on 253,121,439 shares of common
stock outstanding as of September 30, 2019 and
excludes:
- •
- 23,597,871 shares of common stock issuable upon the exercise of
stock options, at a weighted average exercise price of $2.44 per
share;
- •
- 4,333,560 shares of common stock issuable upon the vesting of
restricted stock units;
- •
- 115,824,142 shares of common stock issuable upon the exercise
of warrants;
- •
- 2,782,076 shares of common stock issuable upon conversion of
the Series C Preferred Stock at a conversion price of $0.2343
per share;
- •
- 12,237,762 shares of common stock issuable upon conversion of
the Series E Preferred Stock at a conversion price of $2.31
per share; and
- •
- 43,630,020 shares of common stock issuance upon conversion of
the 5.5% Convertible Senior Notes due March 2023 at a conversion
price of $2.29 per share;
- •
- 15,503,876 shares of common stock issuable upon conversion of
the 7.5% Convertible Senior Note due January 2023 at a conversion
price of $2.58 per share;
- •
- 861,139 shares of common stock in treasury; and
- •
- 8,373,467 shares of our common stock reserved for future
issuance under our equity incentive plans.
S-23
Table of
Contents
DILUTION
If you invest
in our common stock, your ownership interest will be diluted by the
difference between the price per share you pay and the net tangible
book value per share of our common stock immediately after this
offering.
Our net
tangible book value (deficit) as of September 30, 2019 was
approximately $(1.7) million, or $(0.01) per share of our common
stock, based on 253,121,439 shares of our common stock outstanding
as of that date. Net tangible book value (deficit) per share is
determined by dividing our total tangible assets, less total
liabilities, by the number of shares of our common stock
outstanding as of September 30, 2019. Dilution in net tangible
book value (deficit) per share represents the difference between
the amount per share paid by purchasers of shares of common stock
in this offering and the net tangible book value (deficit) per
share of our common stock immediately after this offering. Dilution
per share to new investors represents the difference between the
amount per share paid by purchasers for our common stock in this
offering and the net tangible book value (deficit) per share of our
common stock immediately following the completion of this
offering.
After giving
effect to the sale of 40,000,000 shares of our common stock in this
offering at the price of
$ per
share and after deducting the underwriting discounts and
commissions and estimated offering expenses payable by us, our as
adjusted net tangible book value (deficit) as of September 30,
2019 would have been approximately
$ million,
or
$ per
share. This represents an immediate increase in net tangible book
value (deficit) of
$ per
share to our existing stockholders and an immediate dilution of
$ per
share of common stock issued to the new investors purchasing
securities in this offering.
The following
table illustrates this per share dilution:
|
|
|
|
|
|
|
|
Offering price per share
|
|
|
|
|
$ |
|
|
Net tangible book value (deficit) per share as of
September 30, 2019
|
|
$ |
(0.01 |
) |
|
|
|
Increase in net tangible book value per share
attributable to this offering
|
|
|
|
|
|
|
|
Adjusted net tangible book value (deficit) per share
as of September 30, 2019 after giving effect to this
offering
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Dilution in net tangible book value (deficit) per
share to new investors
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
If the
underwriters exercise in full their option to purchase up to
additional shares of common stock at the public offering price of
$ per
share, the as adjusted net tangible book value (deficit) after this
offering would be
$ per
share, representing an increase in net tangible book value of
$ per
share to existing stockholders and immediate dilution in net
tangible book value (deficit) of
$ per
share to investors purchasing our common stock in this
offering.
The foregoing
table and discussion are based on 253,121,439 shares of common
stock outstanding as of September 30, 2019 and
excludes:
- •
- 23,597,871 shares of common stock issuable upon the exercise of
stock options, at a weighted average exercise price of $2.44 per
share;
- •
- 4,333,560 shares of common stock issuable upon the vesting of
restricted stock units;
- •
- 115,824,142 shares of common stock issuable upon the exercise
of warrants;
- •
- 2,782,076 shares of common stock issuable upon conversion of
the Series C Preferred Stock at a conversion price of $0.2343
per share;
- •
- 12,237,762 shares of common stock issuable upon conversion of
the Series E Preferred Stock at a conversion price of $2.31
per share; and
S-24
Table of
Contents
- •
- 43,630,020 shares of common stock issuance upon conversion of
the 5.5% Convertible Senior Notes due March 2023 at a conversion
price of $2.29 per share;
- •
- 15,503,876 shares of common stock issuable upon conversion of
the 7.5% Convertible Senior Note due January 2023 at a conversion
price of $2.58 per share;
- •
- 861,139 shares of common stock in treasury; and
- •
- 8,373,467 shares of our common stock reserved for future
issuance under our equity incentive plans.
To the extent
that options or warrants outstanding as of September 30, 2019
are exercised, outstanding securities are converted or restricted
stock units vest, you may experience further dilution. In addition,
we may choose to raise additional capital due to market conditions
or strategic considerations even if we believe we have sufficient
funds for our current or future operating plans. To the extent that
additional capital is raised through the sale of equity or
convertible debt securities, the issuance of these securities could
result in further dilution to our stockholders.
S-25
Table of
Contents
DIVIDEND POLICY
We have never
declared or paid cash dividends on our common stock and do not
anticipate paying cash dividends in the foreseeable future. Any
future determination as to the payment of dividends will depend
upon capital requirements and limitations imposed by our credit
agreements, if any, and such other factors as our board of
directors may consider.
S-26
Table of
Contents
UNDERWRITING
Under the terms
and subject to the conditions in an underwriting agreement dated
the date of this prospectus supplement, the underwriters named
below, for whom Morgan Stanley & Co. LLC and
Barclays Capital Inc. are acting as representatives, have
severally agreed to purchase, and we have agreed to sell to them,
the number of shares indicated below:
|
|
|
|
|
Name
|
|
Number of
Shares |
|
Morgan
Stanley & Co. LLC
|
|
|
|
|
Barclays Capital Inc.
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
40,000,000 |
|
The
underwriters and the representatives are collectively referred to
as the "underwriters" and the "representatives," respectively. The
underwriters are offering the shares of common stock subject to
their acceptance of the shares from us and subject to prior sale.
The underwriting agreement provides that the obligations of the
several underwriters to pay for and accept delivery of the shares
of common stock offered by this prospectus supplement are subject
to the approval of certain legal matters by their counsel and to
certain other conditions. The underwriters are obligated to take
and pay for all of the shares of common stock offered by this
prospectus supplement if any such shares are taken. However, the
underwriters are not required to take or pay for the shares covered
by the underwriters' option to purchase additional shares described
below.
The
underwriters initially propose to offer part of the shares of
common stock directly to the public at the offering price listed on
the cover page of this prospectus supplement and part to certain
dealers. After the initial offering of the shares of common stock,
the offering price and other selling terms may from time to time be
varied by the representatives.
Our common
stock is listed on the Nasdaq Capital Market under the trading
symbol "PLUG".
We and the
underwriters have agreed to indemnify each other against certain
liabilities, including liabilities under the Securities
Act.
Option to Purchase Additional Shares
We have granted
to the underwriters an option, exercisable for 30 days from
the date of this prospectus supplement, to purchase up to 6,000,000
additional shares of common stock at the public offering price
listed on the cover page of this prospectus supplement, less
underwriting discounts and commissions. To the extent the option is
exercised, each underwriter will become obligated, subject to
certain conditions, to purchase about the same percentage of the
additional shares of common stock as the number listed next to the
underwriter's name in the preceding table bears to the total number
of shares of common stock listed next to the names of all
underwriters in the preceding table.
Underwriting Discounts and Commissions
The following
table shows the per share and total public offering price,
underwriting discounts and commissions and proceeds, before
expenses, to us. These amounts are shown assuming both no
exercise
S-27
Table of
Contents
and
full exercise of the underwriters' option to purchase up to an
additional 6,000,000 shares of common stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
|
Per Share |
|
No Exercise |
|
Full Exercise |
|
Public offering price
|
|
$ |
|
|
$ |
|
|
$ |
|
|
Underwriting discounts and commissions
|
|
$ |
|
|
$ |
|
|
$ |
|
|
Proceeds, before expenses, to us
|
|
$ |
|
|
$ |
|
|
$ |
|
|
The estimated
offering expenses payable by us, exclusive of the underwriting
discounts and commissions, are approximately
$ .
Lock-Up Agreements
We and each of
our directors and officers have agreed that, without the prior
written consent of Morgan Stanley & Co. LLC and
Barclays Capital Inc. on behalf of the underwriters, we and
they will not, and will not publicly disclose an intention to,
during the period ending 60 days after the date of this
prospectus supplement (the "restricted period"):
- (1)
- offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend or otherwise
transfer or dispose of, directly or indirectly, any shares of
common stock or any securities convertible into or exercisable or
exchangeable for shares of common stock;
- (2)
- enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of
ownership of the common stock; or
- (3)
- file any registration statement with the SEC relating to the
offering of any shares of common stock or any securities
convertible into or exercisable or exchangeable for common
stock;
whether any such transaction described in (1) or
(2) above is to be settled by delivery of common stock or such
other securities, in cash or otherwise. In addition, we and each of
our directors and officers agrees that, without the prior written
consent of Morgan Stanley & Co. LLC and Barclays
Capital Inc. on behalf of the underwriters, we or such other
person will not, during the restricted period, make any demand for,
or exercise any right with respect to, the registration of any
shares of common stock or any security convertible into or
exercisable or exchangeable for common stock.
Notwithstanding
the above, the underwriters have agreed in the underwriting
agreement that the lock-up agreement applicable to us does not
apply to:
- •
- the
sale of shares to the underwriters;
- •
- the
issuance by us of shares of our common stock upon the exercise or
vesting or settlement of any option, warrant or restricted stock
unit outstanding on the date hereof and described in this
prospectus supplement, or upon the conversion of our Series C
Preferred Stock, Series E Preferred Stock, 5.5% Convertible
Senior Notes due March 2023 or 7.5% Convertible Senior Note due
January 2023 outstanding on the date hereof and described in this
prospectus supplement;
- •
- the
issuance of shares of our common stock, options to acquire shares
of our common stock, restricted stock units or other equity awards
pursuant to our stock option plans or other employee compensation
plans as such plans are in existence on the date hereof and
described in this prospectus supplement;
- •
- issuances of shares of our common stock as matching
contributions under our 401(k) plan;
- •
- the
filing of a registration statement on Form S-8 relating to any
employee benefit plan or Form S-4 or amendments
thereto;
S-28
Table of
Contents
- •
- the
issuance of securities as payment in satisfaction of accrued
dividends payable upon our Series C Preferred Stock;
- •
- the
entry into an agreement providing for the issuance of shares of our
common stock or any security convertible into or exercisable for
shares of our common stock in connection with our acquisition, or
any of our subsidiaries, of the securities, business, technology,
property or other assets of another person or entity or pursuant to
an employee benefit plan assumed by us in connection with such
acquisition, and the issuance of any such securities pursuant to
any such agreement, provided that the aggregate number of shares of
our common stock that we may sell or issue pursuant to this clause
shall not exceed 5% of the total number of shares of our common
stock issued and outstanding immediately following the completion
of the transaction and provided further that each recipient of
shares of our common stock or any securities convertible into or
exercisable or exchangeable for shares of our common stock shall
enter into a lock-up agreement for the duration of the restricted
period;
- •
- the
entry into any agreement providing for the issuance of shares of
our common stock or any security convertible into or exercisable
for shares of our common stock in connection with joint ventures,
commercial relationships or other strategic transactions, and the
issuance of any such securities pursuant to any such agreement,
provided that the aggregate number of shares of our common stock
that we may sell or issue pursuant to this clause shall not exceed
5% of the total number of shares of our common stock issued and
outstanding immediately following the completion of the transaction
and provided further that each recipient of shares of our common
stock or any securities convertible into or exercisable or
exchangeable for shares of our common stock shall enter into a
lock-up agreement for the duration of the restricted period;
- •
- the
filing of any registration statement pursuant to the Transaction
Agreement, dated as of July 20, 2017, by and between the
Company and Wal-Mart Stores, Inc.;
- •
- the
filing of any registration statement pursuant to the Transaction
Agreement, dated as of April 4, 2017, by and between the
Company and Amazon.com, Inc.;
- •
- the
filing of any registration statement registering the resale of
shares of Common Stock issuable upon conversion of the 7.5%
Convertible Senior Note due 2023;
- •
- the
filing of a prospectus supplement relating to an at-the-market
offering program, provided that no shares may be offered or sold
pursuant to such at-the-market offering during the restricted
period; and
- •
- the
establishment of a trading plan pursuant to Rule 10b5-1 under
the Exchange Act (a "10b5-1 Plan"), for the transfer of shares of
our common stock, provided that (i) such 10b5-1 Plan does not
provide for the transfer of shares of our common stock during the
restricted period and (ii) to the extent a public announcement
or filing under the Exchange Act, if any, is required of or
voluntarily made by us regarding the establishment of such plan,
such announcement or filing shall include a statement to the effect
that no transfer of shares of our common stock may be made under
such plan during the restricted period;
In addition,
notwithstanding the foregoing, the underwriters have agreed that
the following shall not apply to the lock-up agreements with our
directors and officers:
- •
- transactions by any person other than us relating to shares of
common stock or other securities acquired in open market
transactions after the completion of this offering, provided that
no filing under Section 16(a) of the Exchange Act is required
or voluntarily made in connection with subsequent sales of the
common stock or other securities acquired in such open market
transactions;
S-29
Table of
Contents
- •
- transfers of shares of common stock or any security convertible
into common stock as a bona fide gift, provided that each donee
shall sign and deliver a substantially similar lock-up agreement
for the duration of the restricted period and no filing under
Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of shares of common stock, shall be required
or shall be voluntarily made during the restricted period;
- •
- distributions of shares of common stock or any security
convertible into common stock to limited partners of such person,
provided that each distributee shall sign and deliver a
substantially similar lock-up agreement for the duration of the
restricted period and no filing under Section 16(a) of the
Exchange Act, reporting a reduction in beneficial ownership of
shares of common stock, shall be required or shall be voluntarily
made during the restricted period;
- •
- transfers or other dispositions of shares of common stock or
any security convertible into common stock by will, other
testamentary document or intestate succession upon death, or by
operation of law, such as pursuant to a qualified domestic order or
in connection with a divorce settlement; provided that any filing
under Section 16(a) of the Exchange Act required to be made
during the restricted period in connection with any such transfer
or disposition shall indicate by footnote disclosure or otherwise
the nature of the transfer or disposition; provided further that
each distributee shall sign and deliver a substantially similar
lock-up agreement for the duration of the restricted period;
- •
- receipt from the Company of shares of common stock upon the
exercise of options, warrants, restricted stock units or other
equity awards pursuant to any employee benefit plans or
arrangements described in this prospectus supplement, provided that
any shares of common stock receive pursuant to this clause shall be
subject to the restrictions on transferability contained in the
lock-up agreement; provided further that any filing under
Section 16(a) of the Exchange Act required to be made during
the restricted period in connection with such transaction shall
indicate by footnote disclosure or otherwise (i) the nature of
the transaction and (ii) that any shares received pursuant to
this clause are subject to the restrictions on transferability
contained in the lock-up agreement;
- •
- dispositions or transfers of shares of common stock solely
(i) in connection with the"net"or"cashless"exercise of options
or other rights to acquire shares of common stock granted pursuant
to an equity incentive plan, employee compensation plan or other
arrangement described in this prospectus supplement, or
(ii) in satisfaction of tax withholding obligations in
connection with any such exercise or the vesting of restricted
stock, provided that any shares received upon any such exercise or
vesting shall be subject to the restrictions on transferability
contained in the lock-up agreement; provided further that any
filing under Section 16(a) of the Exchange Act required to be
made during the Restricted Period in connection with any such
transfer or disposition shall indicate by footnote disclosure or
otherwise (i) the nature of the transfer or disposition and
(ii) that any shares received pursuant to this clause are
subject to the restrictions on transferability contained in the
lock-up agreement;
- •
- transfers of shares of common stock or any security convertible
into common stock by such person to affiliates or to any investment
fund or other entity controlled by such person, provided that each
transferee shall sign and deliver a substantially similar lock-up
agreement for the duration of the restricted period and no filing
under Section 16(a) of the Exchange Act, reporting a reduction
in beneficial ownership of shares of common stock, shall be
required or shall be voluntarily made during the restricted
period;
- •
- transfer of shares of common stock or any security convertible
into common stock by such person to any immediate family member of
such person or a trust, partnership, limited liability company or
other entity for the direct or indirect benefit of such person or
the immediate family of such person, provided that each transferee
shall sign and deliver a substantially similar lock-up agreement
for the
S-30
Table of
Contents
duration of the restricted period and no filing under
Section 16(a) of the Exchange Act, reporting a reduction in
beneficial ownership of shares of common stock, shall be required
or shall be voluntarily made during the restricted
period;
- •
- the
establishment of a 10b5-1 Plan for the transfer of shares of common
stock; provided that (i) such 10b5-1 Plan does not provide for
the transfer of common stock during the restricted period and
(ii) to the extent a public announcement or filing under the
Exchange Act, if any, is required of or voluntarily made by or on
behalf of the such officer or director or the Company regarding the
establishment of such plan, such announcement or filing shall
include a statement to the effect that no transfer of common stock
may be made under such plan during the restricted period; or
- •
- sales, transfers or other dispositions of such person's shares
of common stock made pursuant to 10b5-1 Plans existing on the date
hereof, of which the representatives have received notice, provided
that any filing that is made in connection with any such sales
during the restricted period shall state that such sales have been
executed under an existing 10b5-1 Plan.
Morgan
Stanley & Co. LLC and Barclays
Capital Inc., in their sole discretion, may release the common
stock and other securities subject to the lock-up agreements
described above in whole or in part at any time.
Stabilization
In order to
facilitate the offering of our common stock, the underwriters may
engage in transactions that stabilize, maintain or otherwise affect
the price of our common stock. Specifically, the underwriters may
sell more shares than they are obligated to purchase under the
underwriting agreement, creating a short position. A short sale is
covered if the short position is no greater than the number of
shares available for purchase by the underwriters under the option.
The underwriters can close out a covered short sale by exercising
the option or purchasing shares in the open market. In determining
the source of shares to close out a covered short sale, the
underwriters will consider, among other things, the open market
price of shares compared to the price available under the option.
The underwriters may also sell shares in excess of the option,
creating a naked short position. The underwriters must close out
any naked short position by purchasing shares in the open market. A
naked short position is more likely to be created if the
underwriters are concerned that there may be downward pressure on
the price of the common stock in the open market after pricing that
could adversely affect investors who purchase in this offering. As
an additional means of facilitating this offering, the underwriters
may bid for, and purchase, shares of common stock in the open
market to stabilize the price of our common stock. These activities
may raise or maintain the market price of our common stock above
independent market levels or prevent or retard a decline in the
market price of our common stock. The underwriters are not required
to engage in these activities and may end any of these activities
at any time.
Electronic Prospectus
A prospectus
supplement in electronic format may be made available on websites
maintained by one or more underwriters, or selling group members,
if any, participating in this offering. The representatives may
agree to allocate a number of shares of common stock to
underwriters for sale to their online brokerage account holders.
Internet distributions will be allocated by the representatives to
underwriters that may make Internet distributions on the same basis
as other allocations.
Other Relationships
The
underwriters and their respective affiliates are full service
financial institutions engaged in various activities, which may
include securities trading, commercial and investment banking,
financial advisory, investment management, investment research,
principal investment, hedging, financing and brokerage activities.
Certain of the underwriters and their respective affiliates have,
from time to time, performed,
S-31
Table of
Contents
and
may in the future perform, various financial advisory and
investment banking services for us, for which they received or will
receive customary fees and expenses.
In addition, in
the ordinary course of their various business activities, the
underwriters and their respective affiliates may make or hold a
broad array of investments and actively trade debt and equity
securities (or related derivative securities) and financial
instruments (including bank loans) for their own account and for
the accounts of their customers and may at any time hold long and
short positions in such securities and instruments. Such investment
and securities activities may involve our securities and
instruments. The underwriters and their respective affiliates may
also make investment recommendations or publish or express
independent research views in respect of such securities or
instruments and may at any time hold, or recommend to clients that
they acquire, long or short positions in such securities and
instruments.
Selling Restrictions
Notice to Prospective Investors in Canada
The shares may
be sold only to purchasers purchasing, or deemed to be purchasing,
as principal that are accredited investors, as defined in National
Instrument 45-106 Prospectus Exemptions or
subsection 73.3(1) of the Securities Act (Ontario), and are
permitted clients, as defined in National Instrument 31-103
Registration Requirements, Exemptions and Ongoing Registrant
Obligations. Any resale of the shares must be made in accordance
with an exemption from, or in a transaction not subject to, the
prospectus requirements of applicable securities laws.
Securities
legislation in certain provinces or territories of Canada may
provide a purchaser with remedies for rescission or damages if this
prospectus supplement (including any amendment thereto) contains a
misrepresentation, provided that the remedies for rescission or
damages are exercised by the purchaser within the time limit
prescribed by the securities legislation of the purchaser's
province or territory. The purchaser should refer to any applicable
provisions of the securities legislation of the purchaser's
province or territory for particulars of these rights or consult
with a legal advisor.
Pursuant to
section 3A.3 of National Instrument 33-105 Underwriting
Conflicts (NI 33-105), the underwriters are not required to
comply with the disclosure requirements of NI 33-105 regarding
underwriter conflicts of interest in connection with this
offering.
Notice to Prospective Investors in the European Economic
Area
In relation to
each Member State of the European Economic Area (each a "Member
State"), no shares have been offered or will be offered pursuant to
the offering to the public in that Member State prior to the
publication of a prospectus in relation to the shares which has
been approved by the competent authority in that Member State or,
where appropriate, approved in another Member State and notified to
the competent authority in that Member State, all in accordance
with the Prospectus Regulation, except that offers of shares may be
made to the public in that Member State at any time under the
following exemptions under the Prospectus Regulation:
(a) to
any legal entity which is a qualified investor as defined under the
Prospectus Regulation;
(b) to
fewer than 150 natural or legal persons (other than qualified
investors as defined under the Prospectus Regulation), subject to
obtaining the prior consent of the underwriters; or
(c) in
any other circumstances falling within Article 1(4) of the
Prospectus Regulation,
provided that no such offer of
shares shall require us or any underwriter to publish a prospectus
pursuant to Article 3 of the Prospectus Regulation or
supplement a prospectus pursuant to Article 23 of the
Prospectus Regulation and each person who initially acquires any
shares or to whom any offer is made will be deemed to have
represented, acknowledged and agreed to and with each of the
underwriters and the Company that
S-32
Table of
Contents
it
is a "qualified investor" within the meaning of Article 2(e)
of the Prospectus Regulation. In the case of any shares being
offered to a financial intermediary as that term is used in the
Prospectus Regulation, each such financial intermediary will be
deemed to have represented, acknowledged and agreed that the shares
acquired by it in the offer have not been acquired on a
non-discretionary basis on behalf of, nor have they been acquired
with a view to their offer or resale to, persons in circumstances
which may give rise to an offer of any shares to the public other
than their offer or resale in a Member State to qualified investors
as so defined or in circumstances in which the prior consent of the
underwriters have been obtained to each such proposed offer or
resale.
For the
purposes of this provision, the expression an "offer to the public"
in relation to shares in any Member State means the communication
in any form and by any means of sufficient information on the terms
of the offer and any shares to be offered so as to enable an
investor to decide to purchase or subscribe for any shares, and the
expression "Prospectus Regulation" means Regulation (EU)
2017/1129.
Notice to Prospective Investors in the United
Kingdom
In addition, in
the United Kingdom, this document is being distributed only to, and
is directed only at, and any offer subsequently made may only be
directed at persons who are "qualified investors" (as defined in
the Prospectus Regulation) (i) who have professional
experience in matters relating to investments falling within
Article 19(5) of the Financial Services and Markets Act 2000
(Financial Promotion) Order 2005, as amended (the "Order") and/or
(ii) who are high net worth companies (or persons to whom it
may otherwise be lawfully communicated) falling within
Article 49(2)(a) to (d) of the Order (all such persons
together being referred to as "relevant persons") or otherwise in
circumstances which have not resulted and will not result in an
offer to the public of the shares in the United Kingdom within the
meaning of the Financial Services and Markets Act 2000.
Any person in
the United Kingdom that is not a relevant person should not act or
rely on the information included in this document or use it as
basis for taking any action. In the United Kingdom, any investment
or investment activity that this document relates to may be made or
taken exclusively by relevant persons.
Notice to Prospective Investors in Switzerland
The shares may
not be publicly offered in Switzerland and will not be listed on
the SIX Swiss Exchange ("SIX") or on any other stock exchange or
regulated trading facility in Switzerland. This document does not
constitute a prospectus within the meaning of, and has been
prepared without regard to the disclosure standards for issuance
prospectuses under art. 652a or art. 1156 of the Swiss Code of
Obligations or the disclosure standards for listing prospectuses
under art. 27 ff. of the SIX Listing Rules or the listing rules of
any other stock exchange or regulated trading facility in
Switzerland. Neither this document nor any other offering or
marketing material relating to the shares or the offering may be
publicly distributed or otherwise made publicly available in
Switzerland.
Neither this
document nor any other offering or marketing material relating to
the offering, the Company, the shares have been or will be filed
with or approved by any Swiss regulatory authority. In particular,
this document will not be filed with, and the offer of shares will
not be supervised by, the Swiss Financial Market Supervisory
Authority FINMA (FINMA), and the offer of shares has not been and
will not be authorized under the Swiss Federal Act on Collective
Investment Schemes ("CISA"). The investor protection afforded to
acquirers of interests in collective investment schemes under the
CISA does not extend to acquirers of shares.
S-33
Table of
Contents
Notice to Prospective Investors in Australia
This prospectus
supplement:
- •
- does not constitute a disclosure document or a prospectus under
Chapter 6D.2 of the Corporations Act 2001 (Cth) (the
"Corporations Act");
- •
- has
not been, and will not be, lodged with the Australian Securities
and Investments Commission ("ASIC"), as a disclosure document for
the purposes of the Corporations Act and does not purport to
include the information required of a disclosure document for the
purposes of the Corporations Act; and
- •
- may
only be provided in Australia to select investors who are able to
demonstrate that they fall within one or more of the categories of
investors, available under section 708 of the Corporations Act
("Exempt Investors").
The shares may
not be directly or indirectly offered for subscription or purchased
or sold, and no invitations to subscribe for or buy the shares may
be issued, and no draft or definitive offering memorandum,
advertisement or other offering material relating to any shares may
be distributed in Australia, except where disclosure to investors
is not required under Chapter 6D of the Corporations Act or is
otherwise in compliance with all applicable Australian laws and
regulations. By submitting an application for the shares, you
represent and warrant to us that you are an Exempt
Investor.
As any offer of
shares under this document will be made without disclosure in
Australia under Chapter 6D.2 of the Corporations Act, the
offer of those securities for resale in Australia within
12 months may, under section 707 of the Corporations Act,
require disclosure to investors under Chapter 6D.2 if none of
the exemptions in section 708 applies to that resale. By
applying for the shares you undertake to us that you will not, for
a period of 12 months from the date of issue of the shares,
offer, transfer, assign or otherwise alienate those shares to
investors in Australia except in circumstances where disclosure to
investors is not required under Chapter 6D.2 of the
Corporations Act or where a compliant disclosure document is
prepared and lodged with ASIC.
Notice to Prospective Investors in Hong Kong
The shares have
not been offered or sold and will not be offered or sold in Hong
Kong, by means of any document, other than (a) to
"professional investors" as defined in the Securities and Futures
Ordinance (Cap. 571 of the Laws of Hong Kong) (the "SFO") of Hong
Kong and any rules made thereunder; or (b) in other
circumstances which do not result in the document being a
"prospectus" as defined in the Companies (Winding Up and
Miscellaneous Provisions) Ordinance (Cap. 32) of
Hong Kong) (the "CO") or which do not constitute an offer to
the public within the meaning of the CO. No advertisement,
invitation or document relating to the shares has been or may be
issued or has been or may be in the possession of any person for
the purposes of issue, whether in Hong Kong or elsewhere, which is
directed at, or the contents of which are likely to be accessed or
read by, the public of Hong Kong (except if permitted to do so
under the securities laws of Hong Kong) other than with respect to
shares which are or are intended to be disposed of only to persons
outside Hong Kong or only to "professional investors" as defined in
the SFO and any rules made thereunder.
Notice to Prospective Investors in Singapore
This prospectus
supplement has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, each underwriter has
not offered or sold any shares or caused the shares to be made the
subject of an invitation for subscription or purchase and will not
offer or sell any shares or cause the shares to be made the subject
of an invitation for subscription or purchase, and has not
circulated or distributed, nor will it circulate or distribute,
this prospectus supplement or any other document or
S-34
Table of
Contents
material in connection with the offer or sale, or invitation
for subscription or purchase, of the shares, whether directly or
indirectly, to any person in Singapore other than:
(a) to
an institutional investor (as defined in Section 4A of the
Securities and Futures Act (Chapter 289) of Singapore, as
modified or amended from time to time (the "SFA")) pursuant to
Section 274 of the SFA;
(b) to
a relevant person (as defined in Section 275(2) of the SFA)
pursuant to Section 275(1) of the SFA, or any person pursuant
to Section 275(1A) of the SFA, and in accordance with the
conditions specified in Section 275 of the SFA; or
(c) otherwise
pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Where the
shares are subscribed or purchased under Section 275 of the
SFA by a relevant person which is:
(a) a
corporation (which is not an accredited investor (as defined in
Section 4A of the SFA)) the sole business of which is to hold
investments and the entire share capital of which is owned by one
or more individuals, each of whom is an accredited investor;
or
(b) a
trust (where the trustee is not an accredited investor) whose sole
purpose is to hold investments and each beneficiary of the trust is
an individual who is an accredited investor, securities or
securities-based derivatives contracts (each term as defined in
Section 2(1) of the SFA) of that corporation or the
beneficiaries' rights and interest (howsoever described) in that
trust shall not be transferred within six months after that
corporation or that trust has acquired the shares pursuant to an
offer made under Section 275 of the SFA except:
(i) to
an institutional investor or to a relevant person, or to any person
arising from an offer referred to in Section 275(1A) or
Section 276(4)(i)(B) of the SFA;
(ii) where
no consideration is or will be given for the transfer;
(iii) where
the transfer is by operation of law;
(iv) as
specified in Section 276(7) of the SFA; or
(v) as
specified in Regulation 37A of the Securities and Futures
(Offers of Investments) (Securities and Securities-based
Derivatives Contracts) Regulations 2018.
In connection
with Section 309B of the SFA and the CMP
Regulations 2018, unless otherwise specified before an offer
of shares of common stock, the Company has determined, and hereby
notifies all relevant persons (as defined in Section 309A(1)
of the SFA), that the shares of common stock are "prescribed
capital markets products" (as defined in the CMP
Regulations 2018) and Excluded Investment Products (as defined
in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products
and MAS Notice FAA-N16: Notice on Recommendations on Investment
Products).
Notice to Prospective Investors in Japan
The shares have
not been and will not be registered pursuant to Article 4,
Paragraph 1 of the Financial Instruments and Exchange Act.
Accordingly, none of the shares nor any interest therein may be
offered or sold, directly or indirectly, in Japan or to, or for the
benefit of, any "resident" of Japan (which term as used herein
means any person resident in Japan, including any corporation or
other entity organized under the laws of Japan), or to others for
re-offering or resale, directly or indirectly, in Japan or to or
for the benefit of a resident of Japan, except pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Financial Instruments and Exchange Act and any
other applicable laws, regulations and ministerial guidelines of
Japan in effect at the relevant time.
S-35
Table of
Contents
MATERIAL U.S. FEDERAL INCOME TAX CONSIDERATIONS
FOR NON-U.S. HOLDERS
The following
discussion is a summary of the material U.S. federal income tax
considerations applicable to non-U.S. holders (as defined below)
with respect to their ownership and disposition of shares of our
common stock issued pursuant to this offering. For purposes of this
discussion, a non-U.S. holder means a beneficial owner of our
common stock that is for U.S. federal income tax
purposes:
- •
- a
non-resident alien individual;
- •
- a
foreign corporation or any other foreign organization taxable as a
corporation for U.S. federal income tax purposes; or
- •
- a
foreign estate or trust, the income of which is not subject to U.S.
federal income tax on a net income basis.
This discussion
does not address the tax treatment of partnerships or other
entities that are pass-through entities for U.S. federal income tax
purposes or persons that hold their common stock through
partnerships or other pass-through entities. A partner in a
partnership or other pass-through entity that will hold our common
stock should consult his, her or its tax advisor regarding the tax
consequences of acquiring, holding and disposing of our common
stock through a partnership or other pass-through entity, as
applicable.
This discussion
is based on current provisions of the U.S. Internal Revenue Code of
1986, as amended, which we refer to as the Code, existing and
proposed U.S. Treasury Regulations promulgated thereunder, current
administrative rulings and judicial decisions, all as in effect as
of the date of this prospectus and, all of which are subject to
change or to differing interpretation, possibly with retroactive
effect. Any such change or differing interpretation could alter the
tax consequences to non-U.S. holders described in this prospectus.
There can be no assurance that the Internal Revenue Service, which
we refer to as the IRS, will not challenge one or more of the tax
consequences described herein. We assume in this discussion that a
non-U.S. holder holds shares of our common stock as a capital asset
within the meaning of Section 1221 of the Code, generally
property held for investment.
This discussion
does not address all aspects of U.S. federal income taxation that
may be relevant to a particular non-U.S. holder in light of that
non-U.S. holder's individual circumstances nor does it address any
U.S. state, local or non-U.S. taxes, the alternative minimum tax,
the Medicare tax on net investment income, the rules regarding
qualified small business stock within the meaning of
Section 1202 of the Code, or any other aspect of any U.S.
federal tax other than the income tax. This discussion also does
not consider any specific facts or circumstances that may apply to
a non-U.S. holder and does not address the special tax rules
applicable to particular non-U.S. holders, such as:
- •
- insurance companies;
- •
- tax-exempt or governmental organizations;
- •
- financial institutions;
- •
- brokers or dealers in securities;
- •
- regulated investment companies;
- •
- pension plans;
- •
- "controlled foreign corporations," "passive foreign investment
companies," and corporations that accumulate earnings to avoid U.S.
federal income tax;
- •
- "qualified foreign pension funds," or entities wholly owned by
a "qualified foreign pension fund";
- •
- persons deemed to sell our common stock under the constructive
sale provisions of the Code;
S-36
Table of
Contents
- •
- persons that hold our common stock as part of a straddle,
hedge, conversion transaction, synthetic security or other
integrated investment; and
- •
- certain former residents and former citizens of the United
States.
This discussion
is for general information only and is not tax advice. Accordingly,
all prospective non-U.S. holders of our common stock should consult
their tax advisors with respect to the U.S. federal, state, local
and non-U.S. tax consequences of the purchase, ownership and
disposition of our common stock.
Distributions on Our Common Stock
Distributions,
if any, on our common stock will constitute dividends for U.S.
federal income tax purposes to the extent paid from our current or
accumulated earnings and profits, as determined under U.S. federal
income tax principles. If a distribution exceeds our current and
accumulated earnings and profits, the excess will be treated as a
tax-free return of the non-U.S. holder's investment, up to such
holder's tax basis in the common stock. Any remaining excess will
be treated as capital gain, subject to the tax treatment described
below in "Gain on Sale or Other Taxable Disposition of Our Common
Stock." Any such distributions will also be subject to the
discussions below under the sections titled "Backup Withholding and
Information Reporting" and "Withholding and Information Reporting
Requirements—FATCA."
Subject to the
discussion in the following two paragraphs in this section,
dividends paid to a non-U.S. holder generally will be subject to
withholding of U.S. federal income tax at a 30% rate or such lower
rate as may be specified by an applicable income tax treaty between
the United States and such holder's country of
residence.
Dividends that
are treated as effectively connected with a trade or business
conducted by a non-U.S. holder within the United States and, if an
applicable income tax treaty so provides, that are attributable to
a permanent establishment or a fixed base maintained by the
non-U.S. holder within the United States, are generally exempt from
the 30% withholding tax if the non-U.S. holder satisfies applicable
certification and disclosure requirements. However, such U.S.
effectively connected income, net of specified deductions and
credits, is taxed at the same graduated U.S. federal income tax
rates applicable to United States persons (as defined in the Code).
Any U.S. effectively connected income received by a non-U.S. holder
that is a corporation may also, under certain circumstances, be
subject to an additional "branch profits tax" at a 30% rate or such
lower rate as may be specified by an applicable income tax treaty
between the United States and such holder's country of
residence.
A non-U.S.
holder of our common stock who claims the benefit of an applicable
income tax treaty between the United States and such holder's
country of residence generally will be required to provide a
properly executed IRS Form W-8BEN or W-8BEN-E (or successor
form) to the applicable withholding agent and satisfy applicable
certification and other requirements. Non-U.S. holders are urged to
consult their tax advisors regarding their entitlement to benefits
under a relevant income tax treaty. A non-U.S. holder that is
eligible for a reduced rate of U.S. withholding tax under an income
tax treaty may obtain a refund or credit of any excess amounts
withheld by timely filing a U.S. tax return with the
IRS.
Gain on Sale or Other Taxable Disposition of Our Common
Stock
Subject to the
discussions below under "Backup Withholding and Information
Reporting" and "Withholding and Information Reporting
Requirements—FATCA," a non-U.S. holder generally will not be
subject to any U.S. federal income tax on any gain realized upon
such holder's sale or other taxable disposition of shares of our
common stock unless:
- •
- the
gain is effectively connected with the non-U.S. holder's conduct of
a U.S. trade or business and, if an applicable income tax treaty so
provides, is attributable to a permanent establishment or
a
S-37
Table of
Contents
fixed-base maintained by such non-U.S. holder in the United
States, in which case the non-U.S. holder generally will be taxed
on a net income basis at the graduated U.S. federal income tax
rates applicable to United States persons (as defined in the Code)
and, if the non-U.S. holder is a foreign corporation, the branch
profits tax described above in "Distributions on Our Common Stock"
also may apply;
- •
- the
non-U.S. holder is a nonresident alien individual who is present in
the United States for 183 days or more in the taxable year of
the disposition and certain other conditions are met, in which case
the non-U.S. holder will be subject to a 30% tax (or such lower
rate as may be specified by an applicable income tax treaty between
the United States and such holder's country of residence) on the
net gain derived from the disposition, which may be offset by
certain U.S. source capital losses of the non-U.S. holder, if any
(even though the individual is not considered a resident of the
United States), provided that the non-U.S. holder has timely filed
U.S. federal income tax returns with respect to such losses;
or
- •
- we
are, or have been, at any time during the five-year period
preceding such sale or other taxable disposition (or the non-U.S.
holder's holding period, if shorter) a "U.S. real property holding
corporation," unless our common stock is regularly traded on an
established securities market and the non-U.S. holder holds no more
than 5% of our outstanding common stock, directly or indirectly,
actually or constructively, during the shorter of the 5-year period
ending on the date of the disposition or the period that the
non-U.S. holder held our common stock. Generally, a corporation is
a U.S. real property holding corporation only if the fair market
value of its U.S. real property interests equals or exceeds 50% of
the sum of the fair market value of its worldwide real property
interests plus its other assets used or held for use in a trade or
business. Although there can be no assurance, we do not believe
that we are, or have been, a U.S. real property holding
corporation, or that we are likely to become one in the future. No
assurance can be provided that our common stock will be regularly
traded on an established securities market for purposes of the
rules described above.
Backup Withholding and Information Reporting
We must report
annually to the IRS and to each non-U.S. holder the gross amount of
the distributions on our common stock paid to such holder and the
tax withheld, if any, with respect to such distributions. Non-U.S.
holders may have to comply with specific certification procedures
to establish that the holder is not a United States person (as
defined in the Code) in order to avoid backup withholding at the
applicable rate with respect to dividends on our common stock.
Dividends paid to non-U.S. holders subject to withholding of U.S.
federal income tax, as described above in "Distributions on Our
Common Stock," generally will be exempt from U.S. backup
withholding.
Information
reporting and backup withholding will generally apply to the
proceeds of a disposition of our common stock by a non-U.S. holder
effected by or through the U.S. office of any broker, U.S. or
foreign, unless the holder certifies its status as a non-U.S.
holder and satisfies certain other requirements, or otherwise
establishes an exemption. Generally, information reporting and
backup withholding will not apply to a payment of disposition
proceeds to a non-U.S. holder where the transaction is effected
outside the United States through a non-U.S. office of a broker.
However, for information reporting purposes, dispositions effected
through a non-U.S. office of a broker with substantial U.S.
ownership or operations generally will be treated in a manner
similar to dispositions effected through a U.S. office of a
broker.
Non-U.S.
holders should consult their tax advisors regarding the application
of the information reporting and backup withholding rules to them.
Copies of information returns may be made available to the tax
authorities of the country in which the non-U.S. holder resides or
is incorporated under the provisions of a specific treaty or
agreement. Backup withholding is not an additional tax. Any amounts
withheld under the backup withholding rules from a payment to a
non-U.S. holder can be refunded or
S-38
Table of
Contents
credited against the non-U.S. holder's U.S. federal income tax
liability, if any, provided that an appropriate claim is filed with
the IRS in a timely manner.
Withholding and Information Reporting
Requirements—FATCA
Provisions of
the Code commonly referred to as the Foreign Account Tax Compliance
Act, or FATCA, generally impose a U.S. federal withholding tax at a
rate of 30% on payments of dividends on our common stock paid to a
foreign entity unless (i) if the foreign entity is a "foreign
financial institution," such foreign entity undertakes certain due
diligence, reporting, withholding, and certification obligations,
(ii) if the foreign entity is not a "foreign financial
institution," such foreign entity identifies certain of its U.S.
investors, if any, or (iii) the foreign entity is otherwise
exempt under FATCA. Such withholding may also apply to gross
proceeds from the sale or other disposition of our common stock,
although under recently proposed U.S. Treasury Regulations, no
withholding would apply to such gross proceeds. The preamble to the
proposed regulations specifies that taxpayers (including
withholding agents) are permitted to rely on the proposed
regulations pending finalization. Under certain circumstances, a
non-U.S. holder may be eligible for refunds or credits of this
withholding tax. An intergovernmental agreement between the United
States and an applicable foreign country may modify the
requirements described in this paragraph. Non-U.S. holders should
consult their tax advisors regarding the possible implications of
this legislation on their investment in our common stock and the
entities through which they hold our common stock, including,
without limitation, the process and deadlines for meeting the
applicable requirements to prevent the imposition of the 30%
withholding tax under FATCA.
S-39
Table of
Contents
LEGAL MATTERS
The validity of
the shares of common stock offered hereby will be passed upon for
us by Goodwin Procter LLP, Boston, Massachusetts. Certain
legal matters with respect to this offering will be passed upon for
the underwriters by Davis Polk & Wardwell LLP, New
York, New York.
EXPERTS
The
consolidated financial statements of Plug Power Inc. and
subsidiaries as of December 31, 2018 and 2017, and for each of
the years in the three-year period ended December 31, 2018,
and management's assessment of the effectiveness of internal
control over financial reporting as of December 31, 2018, have
been incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent
registered public accounting firm, incorporated by reference
herein, and upon the authority of said firm as experts in
accounting and auditing. The audit report covering the 2018
consolidated financial statements refers to a change to the
accounting for leases due to the adoption of Accounting Standards
Codification Topic 842, Leases.
WHERE YOU CAN FIND ADDITIONAL INFORMATION
We file annual,
quarterly and current reports and other information with the SEC.
The SEC maintains a website at www.sec.gov that contains periodic
and current reports, proxy and information statements, and other
information regarding registrants that are filed electronically
with the SEC. These documents are also available, free of charge,
through our website, which is located at www.plugpower.com.
Information contained on our website is not incorporated by
reference into this prospectus supplement, the accompanying
prospectus or any free writing prospectus and you should not
consider information on our website to be part of this prospectus
supplement, the accompanying prospectus or any free writing
prosepctus.
This prospectus
supplement is part of a registration statement that we filed with
the SEC. The registration statement contains more information than
this prospectus supplement regarding us and the securities,
including exhibits and schedules. You can obtain a copy of the
registration statement from the SEC from the SEC's website at
www.sec.gov.
S-40
Table of
Contents
INCORPORATION BY REFERENCE
The SEC allows
us to "incorporate by reference" the information we file with it,
which means that we can disclose important information to you by
referring you to those documents instead of having to repeat the
information in this prospectus supplement. The information
incorporated by reference is considered to be part of this
prospectus supplement, and later information that we file with the
SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below that we have
filed with the SEC:
- •
-
our Annual Report on Form 10-K for the year ended
December 31, 2018, filed with the SEC on March 13,
2019;
- •
- our
Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2019, June 30, 2019 and September 30,
2019, filed with the SEC on
May 8, 2019,
August 9, 2019 and
November 8, 2019, respectively;
- •
-
our Definitive Proxy Statement on Schedule 14A filed with the
SEC on April 5, 2019 (solely to the extent specifically
incorporated by reference into the
Annual Report on Form 10-K for the year ended
December 31, 2018);
- •
- our
Current Report on Form 8-K filed with the SEC on
March 20, 2019,
April 3, 2019 (except for information contained therein
which is furnished rather than filed),
May 15, 2019,
June 10, 2019,
June 21, 2019,
September 9, 2019 and
December 2, 2019;
- •
-
the section entitled "Description of Registrant's Securities to be
Registered" contained in our Registration Statement on
Form 8-A, filed pursuant to Section 12(b) of the Exchange
Act, on October 1, 1999; and
- •
- all
documents filed by us with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act on or after the date of this
prospectus and prior to the termination of the offering of the
underlying securities (excluding any portions of such documents
that are deemed "furnished" to the SEC pursuant to applicable rules
and regulations).
Any statement
contained in this prospectus supplement and the accompanying
prospectus, or any free writing prospectus provided in connection
with this offering or in a document incorporated or deemed to be
incorporated by reference into this prospectus supplement and the
accompanying prospectus, will be deemed to be modified or
superseded for purposes of this prospectus supplement and the
accompanying prospectus to the extent that a statement contained in
this prospectus supplement and the accompanying prospectus, or any
free writing prospectus provided in connection with this offering
or any other subsequently filed document that is deemed to be
incorporated by reference into this prospectus supplement and the
accompanying prospectus, modifies or supersedes the statement. Any
statement so modified or superseded will not be deemed, except as
so modified or superseded, to constitute a part of this prospectus
supplement and the accompanying prospectus.
We will furnish
without charge to each person, including any beneficial owner, to
whom a prospectus is delivered, on written or oral request of such
person, a copy of any or all of the documents incorporated by
reference in this prospectus supplement (not including exhibits to
such documents, unless such exhibits are specifically incorporated
by reference in this prospectus supplement or into such documents).
You should direct any requests for documents to:
Plug
Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
Attention: General Counsel
Telephone: (518) 782-7700
S-41
Table of
Contents
PROSPECTUS
PLUG
POWER INC.

Common Stock
Preferred Stock
Warrants
Debt Securities
Units
This prospectus
describes securities that may be issued and sold from time to time
by us or that may be offered and sold from time to time by selling
securityholders to be identified in the future. We may offer, in
one or more series or classes, separately or together, the
following securities: (i) shares of common stock, par value
$0.01 per share, (ii) shares of preferred stock, par value
$0.01 per share, (iii) warrants to purchase shares of common
stock, preferred stock and/or debt securities, (iv) debt
securities and (v) units comprised of one or more of the
securities described in this prospectus in any combination. We
refer to the common stock, preferred stock, warrants, debt
securities and units registered hereunder collectively as the
"securities" in this prospectus.
The specific
terms of each series or class of the securities will be set forth
in the applicable prospectus supplement. The securities may be
offered directly by us, through agents designated from time to time
by us, or to or through underwriters or dealers. These securities
also may be offered by securityholders, if so provided in a
prospectus supplement hereto. We will provide specific information
about any selling securityholders in one or more supplements to
this prospectus. If any agents, dealers or underwriters are
involved in the sale of any of the securities, their names, and any
applicable purchase price, fee, commission or discount arrangement
between or among them will be set forth, or will be calculable from
the information set forth, in the applicable prospectus supplement.
See the sections entitled "About this Prospectus" and the "Plan of
Distribution" for more information. No securities may be sold
without delivery of this prospectus and the applicable prospectus
supplement describing the method and terms of the offering of such
series of securities.
Our common
stock is listed on the NASDAQ Capital Market under the symbol
"PLUG." On November 29, 2019, the last reported sale price of
our common stock on the NASDAQ Capital Market was $3.90. The
applicable prospectus supplement will contain information, where
applicable, as to any other listing, if any, on the NASDAQ Capital
Market or any securities market or other exchange of the securities
covered by the applicable prospectus supplement.
Investing
in our securities involves a high degree of risk. You should review
carefully the risks and uncertainties described under the heading
"Risk Factors" contained in this prospectus beginning on
page 3 and any applicable prospectus supplement as well as
those set forth in the documents incorporated by reference into
this prospectus or any applicable prospectus
supplement.
Neither
the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus is truthful or complete. Any
representation to the contrary is a criminal
offense.
The date of
this prospectus is December 2, 2019.
Table of
Contents
TABLE OF CONTENTS
|
|
|
|
|
Page |
ABOUT THIS PROSPECTUS
|
|
1 |
OUR COMPANY
|
|
2 |
RISK FACTORS
|
|
3 |
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
|
|
3 |
USE OF PROCEEDS
|
|
5 |
DESCRIPTION OF COMMON STOCK AND PREFERRED
STOCK
|
|
6 |
DESCRIPTION OF WARRANTS
|
|
13 |
DESCRIPTION OF DEBT SECURITIES
|
|
15 |
DESCRIPTION OF UNITS
|
|
22 |
SELLING SECURITYHOLDERS
|
|
26 |
PLAN OF DISTRIBUTION
|
|
27 |
LEGAL MATTERS
|
|
28 |
EXPERTS
|
|
28 |
WHERE YOU CAN FIND ADDITIONAL INFORMATION
|
|
28 |
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
|
|
29 |
i
Table of
Contents
ABOUT THIS PROSPECTUS
This prospectus
is part of a registration statement that we filed with the
Securities and Exchange Commission, or the SEC, using a "shelf"
registration process. Under this process, we may sell any
combination of the securities described in this prospectus in one
or more offerings, and selling securityholders may from time to
time offer and sell any such security owned by them.
This prospectus
provides you with a general description of the securities we or the
selling securityholders may offer. Each time we or any selling
securityholder sell securities, we will provide a prospectus
supplement containing specific information about the terms of the
applicable offering. A prospectus supplement may include a
discussion of any risk factors or other special considerations
applicable to those securities or to us. A prospectus supplement
may add, update or change information contained in this prospectus.
If there is any inconsistency between the information in this
prospectus and the applicable prospectus supplement, you should
rely on the information in the prospectus supplement. Before you
buy any of our securities, it is important for you to consider the
information contained in this prospectus and any prospectus
supplement together with additional information described under the
heading "Where You Can Find More Information."
We or any
selling securityholders may offer the securities directly, through
agents, or to or through underwriters. The applicable prospectus
supplement will describe the terms of the plan of distribution and
set forth the names of any agents or underwriters involved in the
sale of the securities. See "Plan of Distribution" for more
information on this topic. No securities may be sold without
delivery of a prospectus supplement describing the method and terms
of the offering of those securities.
We have not
authorized anyone to provide you with information in addition to or
different from that contained in this prospectus, any applicable
prospectus supplement and any related free writing prospectus. No
dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this
prospectus, any applicable prospectus supplement or any related
free writing prospectus that we may authorize to be provided to
you. You must not rely on any unauthorized information or
representation. This prospectus is an offer to sell only the
securities offered hereby, but only under circumstances and in
jurisdictions where it is lawful to do so. You should not assume
that the information in this prospectus, any applicable prospectus
supplement, any information incorporated or deemed incorporated by
reference herein or therein or any related free writing prospectus
is accurate as of any date other than the date of such information.
Our business, financial condition, results of operations and
prospects and the business may have changed since that
date.
This prospectus
contains summaries of certain provisions contained in some of the
documents described herein, but reference is made to the actual
documents for complete information. All of the summaries are
qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed
or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading "Where You Can Find Additional Information."
Unless
otherwise mentioned or unless the context requires otherwise, all
references in this prospectus to "Plug Power," "we," "us," "our,"
or the "Company" refer to Plug Power Inc. and its
subsidiaries.
This prospectus
and the information incorporated herein by reference includes
trademarks, service marks and trade names owned by us or other
companies. All trademarks, service marks and trade names included
or incorporated by reference into this prospectus, any applicable
prospectus supplement or any related free writing prospectus are
the property of their respective owners.
1
Table of
Contents
OUR COMPANY
We are a
leading provider of alternative energy technology focused on the
design, development, commercialization and manufacture of hydrogen
and fuel cell systems used primarily for the material handling and
stationary power markets. As part of the global drive to
electrification, we have recently leveraged product proven in the
material handling vehicle space to enter new, adjacent, electric
vehicle markets, specifically electric delivery vans.
We are focused
on proton exchange membrane, or PEM, fuel cell and fuel processing
technologies, fuel cell/battery hybrid technologies, and associated
hydrogen storage and dispensing infrastructure from which multiple
products are available. A fuel cell is an electrochemical device
that combines hydrogen and oxygen to produce electricity and heat
without combustion. Hydrogen is derived from hydrocarbon fuels such
as liquid petroleum gas, or LPG, natural gas, propane,
methanol, ethanol, gasoline or biofuels. We develop complete
hydrogen generation, delivery, storage and refueling solutions for
customer locations. Currently, we obtain the majority of our
hydrogen by purchasing it from fuel suppliers for resale to
customers.
In our core
business, we provide and continue to develop commercially-viable
hydrogen and fuel cell product solutions to replace lead-acid
batteries in electric material handling vehicles and industrial
trucks for some of the world's largest distribution and
manufacturing businesses. We are focusing our efforts on industrial
mobility applications (electric forklifts and electric industrial
vehicles) at multi-shift high volume manufacturing and high
throughput distribution sites where our products and services
provide a unique combination of productivity, flexibility and
environmental benefits. Additionally, we manufacture and sell fuel
cell products to replace batteries and diesel generators in
stationary backup power applications. These products prove valuable
with telecommunications, transportation and utility customers as
robust, reliable and sustainable power solutions.
Our current
products and services include:
GenDrive: GenDrive is
our hydrogen fueled PEM fuel cell system providing power to
material handling electric vehicles, including class 1, 2, 3
and 6 electric forklifts and ground support equipment.
GenFuel: GenFuel is
our hydrogen fueling delivery, generation, storage and dispensing
system.
GenCare: GenCare is
our ongoing 'internet of things'-based maintenance and on-site
service program for GenDrive fuel cells, GenSure products, GenFuel
products and ProGen engines.
GenSure: GenSure is
our stationary fuel cell solution providing scalable, modular PEM
fuel cell power to support the backup and grid-support power
requirements of the telecommunications, transportation, and utility
sectors.
GenKey: GenKey is our
turn-key solution combining either GenDrive or GenSure power with
GenFuel fuel and GenCare aftermarket service, offering complete
simplicity to customers transitioning to fuel cell
power.
ProGen: ProGen is our
fuel cell stack and engine technology currently used globally in
mobility and stationary fuel cell systems, and as engines in
electric delivery vans.
We provide our
products worldwide through our direct product sales force, and by
leveraging relationships with original equipment manufacturers and
their dealer networks. We manufacture our commercially-viable
products in Latham, NY.
We were
organized in the State of Delaware on June 27, 1997. Our
principal executive offices are located at 968 Albany-Shaker
Road, Latham, New York, 12110, and our telephone number
is (518) 782-7700. Our corporate website address is
www.plugpower.com. The information found on, or otherwise
accessible through, our website is not deemed to be a part of this
prospectus or any applicable prospectus supplement. Our common
stock trades on the NASDAQ Capital Market under the symbol
"PLUG."
2
Table of
Contents
RISK FACTORS
Investment in
any securities offered pursuant to this prospectus involves risks.
Before acquiring any offered securities pursuant to this
prospectus, you should carefully consider the information contained
or incorporated by reference in this prospectus or in any
accompanying prospectus supplement, including, without limitation,
the risks and uncertainties set forth under the heading "Risk
Factors" in our most recent Annual Report on Form 10-K, and
the other information contained or incorporated by reference in
this prospectus, as updated by our subsequent filings under the
Securities Exchange Act of 1934, as amended, or the Exchange Act,
and the risk factors and other information contained in the
applicable prospectus supplement before acquiring any of such
securities. The occurrence of any of these risks might cause you to
lose all or a part of your investment in the offered securities.
Please also refer to the section below entitled "Cautionary
Statement Regarding Forward-Looking Statements."
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus
contains statements that are not historical facts and are
considered forward-looking within the meaning of Section 27A
of the Securities Act of 1933, as amended, or the Securities Act,
and Section 21E of the Exchange Act. These forward-looking
statements contain projections of our future results of operations
or of our financial position or state other forward-looking
information. You can identify forward-looking statements by the use
of forward-looking terminology such as "believes," "expects,"
"may," "will," "should," "seeks," "approximately," "intends,"
"plans," "estimates" or "anticipates" or the negative of these
words and phrases or similar words or phrases which are predictions
of or indicate future events or trends and discussions which do not
relate solely to historical matters. You can also identify
forward-looking statements by discussions of strategy, plans or
intentions.
These
forward-looking statements involve known and unknown risks,
uncertainties and other important factors that could cause our
actual results, performance or achievements, or industry results to
differ materially from any predictions of future results,
performance or achievements that we express or imply in this
prospectus or in the information contained in or incorporated by
reference into this prospectus. Some of the risks, uncertainties
and other important factors that may affect future results include,
among others: the risk that we continue to incur losses and might
never achieve or maintain profitability; the risk that we will need
to raise additional capital to fund our operations and such capital
may not be available to us; the risk of dilution to our
stockholders and/or stock price should we need to raise additional
capital; the risk that our lack of extensive experience in
manufacturing and marketing products may impact our ability to
manufacture and market products on a profitable and large-scale
commercial basis; the risk that unit orders may not ship, be
installed and/or converted to revenue, in whole or in part; the
risk that a loss of one or more of our major customers, or if one
of our major customers delays payment of or is unable to pay its
receivables, a material adverse effect could result on our
financial condition; the risk that a sale of a significant number
of shares of stock could depress the market price of our common
stock; the risk that our convertible debt securities, if settled in
cash, could have a material effect on our financial results; the
risk that our convertible note hedges may affect the value of our
convertible debt securities and our common stock; the risk that
negative publicity related to our business or stock could result in
a negative impact on our stock value and profitability; the risk of
potential losses related to any product liability claims or
contract disputes; the risk of loss related to an inability to
maintain an effective system of internal controls; our ability to
attract and maintain key personnel; the risks related to the use of
flammable fuels in our products; the risk that pending orders may
not convert to purchase orders, in whole or in part; the cost and
timing of developing, marketing and selling our products; the risks
of delays in or not completing our product development goals; our
ability to obtain financing arrangements to support the sale or
leasing of our products and services to customers; our ability to
achieve the forecasted gross margin on the sale of our products;
the cost and availability of fuel and fueling infrastructures for
our products; the risk of elimination of government subsidies and
economic incentives for alternative energy products;
market
3
Table of
Contents
acceptance of our
products and services, including GenDrive, GenSure and GenKey
systems; our ability to establish and maintain relationships with
third parties with respect to product development, manufacturing,
distribution and servicing and the supply of key product
components; the cost and availability of components and parts for
our products; the risk that possible new tariffs could have a
material adverse effect on our business; our ability to develop
commercially viable products; our ability to reduce product and
manufacturing costs; our ability to successfully market, distribute
and service our products and services internationally; our ability
to improve system reliability for our products; competitive
factors, such as price competition and competition from other
traditional and alternative energy companies; our ability to
protect our intellectual property; the risk of dependency on
information technology on our operations and the failure of such
technology; the cost of complying with current and future federal,
state and international governmental regulations; our subjectivity
to legal proceedings and legal compliance; the risks associated
with potential future acquisitions; the volatility of our stock
price; and other risks and uncertainties described herein, as well
as those risks and uncertainties discussed from time to time in our
other reports and other public filings with the SEC.
Although we
presently believe that the plans, expectations and anticipated
results expressed in or suggested by the forward-looking statements
contained in or incorporated by reference into this prospectus are
reasonable, all forward-looking statements are inherently
subjective, uncertain and subject to change, as they involve
substantial risks and uncertainties, including those beyond our
control. New factors emerge from time to time, and it is not
possible for us to predict the nature, or assess the potential
impact, of each new factor on our business. Given these
uncertainties, we caution you not to place undue reliance on these
forward-looking statements. We undertake no obligation to update or
revise any of our forward-looking statements for events or
circumstances that arise after the statement is made, except as
otherwise may be required by law.
The above list
of risks and uncertainties is only a summary of some of the most
important factors and is not intended to be exhaustive. Additional
information regarding risk factors that may affect us is included
in our Annual Report on Form 10-K for the year ended
December 31, 2018. The risk factors contained in our Annual
Report are updated by us from time to time in Quarterly Reports on
Form 10-Q, Current Reports on Form 8-K and other filings
we make with the SEC.
4
Table of
Contents
USE OF PROCEEDS
Unless
otherwise indicated in the applicable prospectus supplement, we
will use the net proceeds received by us from our sale of the
securities described in this prospectus for our working capital and
other general corporate purposes, including capital expenditures.
We may temporarily invest the net proceeds in a variety of capital
preservation instruments, including investment grade, interest
bearing instruments and U.S. government securities, until they are
used for their stated purpose.
Unless
otherwise set forth in the applicable prospectus supplement, we
will not receive any proceeds in the event that securities are sold
by a selling securityholder.
5
Table of
Contents
DESCRIPTION OF COMMON STOCK AND PREFERRED
STOCK
The following
description of our common stock and preferred stock, together with
any additional information we include in any applicable prospectus
supplement or any related free writing prospectus, summarizes the
material terms and provisions of our common stock and the preferred
stock that we may offer under this prospectus. While the terms we
have summarized below will apply generally to any future common
stock or preferred stock that we may offer, we will describe the
particular terms of any class or series of these securities in more
detail in the applicable prospectus supplement or free writing
prospectus. For the complete terms of our common stock and
preferred stock, please refer to our amended and restated
certificate of incorporation (as amended), which we refer to herein
as our certificate of incorporation, and our amended and restated
bylaws, which we refer to herein as our bylaws, copies of which are
filed with the SEC. The terms of these securities may also be
affected by the Delaware General Corporation Law, or the DGCL. The
summary below and that contained in any applicable prospectus
supplement or any related free writing prospectus are qualified in
their entirety by reference to our certificate of incorporation and
our bylaws. See "Where You Can Find Additional
Information."
Authorized Capital
Our authorized
capital stock consists of 750,000,000 shares of common stock, par
value $0.01 per share, and 5,000,000 shares of preferred stock, par
value $0.01 per share.
Common Stock
As of
September 30, 2019, 253,121,439 shares of our common stock
were issued and outstanding (excluding 861,139 treasury shares). In
addition, as of September 30, 2019, there were:
(i) 23,597,871 shares of common stock issuable upon the
exercise of stock options at a weighted average exercise price of
$2.44 per share; (ii) 4,333,560 shares of common stock
issuable upon the vesting of restricted stock units;
(iii) 115,824,142 shares of common stock issuable upon
exercise of warrants; (iv) 2,782,076 shares of common stock
issuable upon conversion of our Series C Redeemable
Convertible Preferred Stock at a conversion price of $0.2343 per
share; (v) 12,237,762 shares of common stock issuable upon
conversion of our Series E Convertible Preferred Stock at a
conversion price of $2.31 per share; (vi) 43,630,020 shares of
common stock issuable upon conversion of our 5.5% Convertible
Senior Notes due March 15, 2023 at a conversion price of $2.29
per share ; (vii) 15,503,876 shares of common stock issuable
upon conversion of our 7.5% Convertible Senior Note due January
2023 at a conversion price of $2.58 per share; and
(viii) 8,373,467 shares of our common stock reserved for
future issuance under our equity incentive plans. Additional shares
of authorized common stock may be issued, as authorized by our
board of directors from time to time, without stockholder approval,
except as may be required by applicable securities exchange
requirements.
The holders of
common stock possess exclusive voting rights in us, except to the
extent of such rights reserved to holders of our Series C
Redeemable Convertible Preferred Stock and Series E
Convertible Preferred Stock and to the extent our board of
directors specifies voting power with respect to any other class of
securities issued in the future. Each holder of our common stock is
entitled to one vote for each share held of record on each matter
submitted to a vote of stockholders, including the election of
directors. Stockholders do not have any right to cumulate votes in
the election of directors.
Subject to the
preferences that may be applicable to any then outstanding
preferred stock, each holder of our common stock is entitled to
share ratably in distributions to stockholders and to receive
ratably such dividends, if any, as may be declared from time to
time by our board of directors out of legally available funds. In
the event of our liquidation, dissolution or winding up, holders of
our common stock will be entitled to share ratably in the net
assets legally available for distribution to
6
Table of
Contents
stockholders after the
payment of all of our debts and other liabilities, subject to the
satisfaction of any liquidation preference granted to the holders
of any outstanding shares of preferred stock (including the
Series C Redeemable Convertible Preferred Stock and
Series E Convertible Preferred Stock).
All of the
outstanding shares of our common stock are, and the shares of
common stock issued upon the conversion of any securities
convertible into our common stock will be, duly authorized, fully
paid and nonassessable. Holders of our common stock have no
preemptive, conversion or subscription rights, and there are no
redemption or sinking fund provisions applicable to our common
stock. The rights, preferences and privileges of the holders of our
common stock are subject to, and may be adversely affected by, the
rights of the holders of the Series C Redeemable Convertible
Preferred Stock and Series E Convertible Preferred Stock as
well as the rights of any series of our preferred stock that we may
designate and issue in the future.
Our common
stock trades on the NASDAQ Capital Market under the symbol
"PLUG."
Preferred Stock
As of
September 30, 2019, 2,620 shares of Series C Redeemable
Convertible Preferred Stock, par value $0.01 per share
("Series C Preferred Stock"), and 28,269 shares of
Series E Convertible Preferred Stock, par value $0.01 per
share ("Series E Preferred Stock"), were issued and
outstanding. The Company has authorized Series A Junior
Participating Cumulative Preferred Stock, par value $0.01 per
share. As of September 30, 2019, there were no shares of
Series A Junior Participating Cumulative Preferred Stock
issued and outstanding.
The Company's
certificate of incorporation authorizes its board of directors to
classify any unissued shares of preferred stock and to reclassify
any previously classified but unissued shares of any series into
other classes or series of stock. We may issue preferred stock from
time to time in one or more class or series, with the exact terms
of each class or series established by our board of directors.
Prior to the issuance of shares of each class or series of
preferred stock, the Company's board of directors will set the
terms, preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends or other distributions,
qualifications and terms or conditions of redemption for each such
class or series.
The preferences
and other terms of the preferred stock of each class or series will
be fixed by the certificate of designation relating to such class
or series. We will incorporate by reference into the registration
statement of which this prospectus is a part the form of any
certificate of designation that describes the terms of the series
of preferred stock we are offering before the issuance of the
related series of preferred stock. The applicable prospectus
supplement will specify the terms of the preferred stock,
including, where applicable, the following:
- •
- the title and stated
value;
- •
- the number of shares
we are offering;
- •
- the liquidation
preference per share;
- •
- the purchase
price;
- •
- the dividend rate,
period and payment date and method of calculation for
dividends;
- •
- whether dividends
will be cumulative or non-cumulative and, if cumulative, the date
from which dividends will accumulate;
- •
- the procedures for
any auction and remarketing, if any;
- •
- the provisions for a
sinking fund, if any;
7
Table of
Contents
- •
- the provisions for
redemption or repurchase, if applicable, and any restrictions on
our ability to exercise those redemption and repurchase
rights;
- •
- any listing of the
preferred stock on any securities exchange or market;
- •
- whether the preferred
stock will be convertible into our common stock, and, if
applicable, the conversion price, or how it will be calculated, and
the conversion period;
- •
- whether the preferred
stock will be exchangeable into debt securities, and, if
applicable, the exchange price, or how it will be calculated, and
the exchange period;
- •
- voting rights, if
any, of the preferred stock;
- •
- preemptive rights, if
any;
- •
- restrictions on
transfer, sale or other assignment, if any;
- •
- whether interests in
the preferred stock will be represented by depositary
shares;
- •
- a discussion of any
material United States federal income tax considerations applicable
to the preferred stock;
- •
- the relative ranking
and preferences of the preferred stock as to dividend rights and
rights if we liquidate, dissolve or wind up our affairs;
- •
- any limitations on
the issuance of any class or series of preferred stock ranking
senior to or on a parity with the series of preferred stock as to
dividend rights and rights if we liquidate, dissolve or wind up our
affairs; and
- •
- any other specific
terms, preferences, rights or limitations of, or restrictions on,
the preferred stock.
Unless
otherwise specified in the applicable prospectus supplement, the
preferred stock will, with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the Company, rank:
(i) senior to all classes or series of the common stock, and
to any other class or series of the Company's stock expressly
designated as ranking junior to the preferred stock; (ii) on
parity with any class or series of the Company's stock expressly
designated as ranking on parity with the preferred stock; and
(iii) junior to any other class or series of the Company's
stock expressly designated as ranking senior to the preferred
stock.
The DGCL
provides that the holders of preferred stock will have the right to
vote separately as a class (or, in some cases, as a series) on an
amendment to our certificate of incorporation if the amendment
would change the par value, the number of authorized shares of the
class or the powers, preferences or special rights of the class or
series so as to adversely affect the class or series, as the case
may be. This right is in addition to any voting rights that may be
provided for in the applicable certificate of
designation.
Our board of
directors may authorize the issuance of preferred stock with voting
or conversion rights that could adversely affect the voting power
or other rights of the holders of our common stock. The issuance of
preferred stock, while providing flexibility in connection with
possible acquisitions and other corporate purposes, could, among
other things, have the effect of delaying, deferring or preventing
a change in our control and may adversely affect the market price
of the common stock and the voting and other rights of the holders
of common stock. Additionally, the issuance of preferred stock may
have the effect of decreasing the market price of our common
stock.
8
Table of
Contents
Series C Redeemable Convertible Preferred Stock
In May 2013,
10,431 shares of Series C Preferred Stock were issued at the
original issue price of $248.794 per share, of which 2,620 shares
remain outstanding as of September 30, 2019. The Company's
board of directors approved the certificate of designation, a copy
of which has been previously filed with the SEC and which is
incorporated by reference as an exhibit to the registration
statement of which this prospectus is a part, creating the
Series C Preferred Stock. The following description of the
Series C Preferred Stock is qualified in its entirety by
reference to such certificate of designation and the Company's
certificate of incorporation. The Series C Preferred Stock is
validly issued, fully paid and nonassessable.
Ranking. The
Series C Preferred Stock ranks, with respect to dividend
rights and rights upon the Company's liquidation, dissolution or
winding up, senior to all classes or series of the common stock and
to any other class or series of stock expressly designated as
ranking junior to the Series C Preferred Stock, including the
Series E Preferred Stock.
Dividends. The
Series C Preferred Stock is entitled to receive dividends at a
rate of 8% per annum, based upon the original issue price, payable
in equal quarterly installments, in preference to common stock and
other junior securities, in cash or in shares of common stock, at
our option. The Series C Preferred Stock is convertible into
shares of our common stock, at a conversion price equal to $0.2343
per share (as of September 30, 2019 and subject to future
adjustments), at the holder's option. As of September 30,
2019, the outstanding shares of our Series C Preferred Stock
were convertible into an aggregate of 2,782,076 shares of our
common stock. The Series C Preferred Stock has weighted
average anti-dilution protection.
Conversion
Rights. The
holders of Series C Preferred Stock have the right, at their
sole option, to convert the Series C Preferred Stock into
shares of common stock at a conversion price in effect at the time
of conversion; provided that such conversion price shall not be
less than $0.1554 per share. The Series C Preferred Stock may
also be automatically converted at the then effective conversion
rate upon the election by holders of at least 67% of the
outstanding shares of Series C Preferred Stock under certain
circumstances.
Redemption
Rights. The
Series C Preferred Stock is redeemable by the Company upon the
election of either the holders of the Series C Preferred Stock
or us. If the redemption is at the election of the holders of the
Series C Preferred Stock, the redemption price will be the
original issue price plus any accrued and unpaid dividends. If the
redemption is at the election of the Company, the redemption price
will be a per share price equal to the greater of (i) the
original issue price per share plus any accrued and unpaid
dividends and (ii) the fair market value of a single share of
Series C Preferred Stock.
Voting
Rights. The shares
of Series C Preferred Stock vote together with the common
stock on an as-converted basis on all matters, including the
election of directors, except as otherwise required by law. Each
share of Series C Preferred Stock is entitled to a number of
votes equal to the number of whole shares of common stock into
which such share of Series C Preferred Stock is
convertible.
Series E Convertible Preferred Stock
In November
2018, 35,000 shares of Series E Preferred Stock were issued at
the initial stated value of $1,000 per share, of which 28,269
shares remain outstanding as of September 30, 2019. The
Company's board of directors approved the certificate of
designation, a copy of which has been previously filed with the SEC
and which is incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part, creating
the Series E Preferred Stock. The following description of the
Series E Preferred Stock is qualified in its entirety by
reference to such certificate of designation and the Company's
certificate of incorporation. The Series E Preferred Stock is
validly issued, fully paid and nonassessable.
9
Table of
Contents
Maturity
Date. The
Series E Preferred Stock will mature on May 2, 2020,
unless extended at the option of the holders of the Series E
Preferred Stock.
Ranking. Except
for the Series C Preferred Stock, the Series E Preferred
Stock ranks, with respect to dividend rights and rights upon the
Company's liquidation, dissolution or winding up, senior to all
classes or series of the common stock and to any other class or
series of stock expressly designated as ranking junior to the
Series E Preferred Stock. In the event of a liquidation,
dissolution or winding up of the Company, the holders of
Series E Preferred Stock will be entitled to receive in cash
out of the Company's assets after any amount that is required to be
paid to the Series C Preferred Stock and before any amount
shall be paid to the holders of any of capital stock ranking junior
to the Series E Preferred Stock, but pari passu with any
capital stock then outstanding that ranks pari passu with the
Series E Preferred Stock, an amount per share equal to the
greater of (A) 125% of the conversion amount and (B) the
amount per share such holder would receive if such holder converted
such shares into common stock immediately prior to the date of such
payment.
Dividends. The
Series E Preferred Stock is not entitled to receive dividends,
except in connection with certain purchase rights and other
corporate events, as described in the certificate of designation,
or in connection with certain distributions of assets, as described
in the certificate of designation, or as, when and if declared by
the board of directors acting in its sole and absolute
discretion.
Optional
Installment Conversion or Redemption by the
Company. On the
first trading day of each calendar month commencing on May 1,
2019 and through, and including, April 1, 2020, and on the
maturity date (each an "Installment Date"), provided that all
conditions set forth in the certificate of designation have been
satisfied, the Company will convert an amount equal to $2,693,000
in stated value of the Series E Preferred Stock (as such
amount may be reduced by earlier conversion, redemption or
otherwise) into shares of common stock at the greater of
(x) $0.55 and (y) the lowest of (i) the conversion
price then in effect and (ii) 85% of the average volume
weighted average price, or VWAP, of the common stock for the three
lowest trading days during the seven consecutive trading day period
immediately prior to the applicable Installment Date; provided,
however, that the Company may instead, at its option, pay such
amount by redeeming shares of Series E Preferred Stock for
cash at the applicable redemption price. If the equity conditions
are not satisfied, then any holder of the Series E Preferred
Stock may require the Company to redeem the conversion amount at
125% of such designated portion of the conversion
amount.
Mandatory
Conversion by the Company. The Company has the right, provided
that no equity conditions failure exists, to require each holder of
Series E Preferred Stock to convert all or any number of
shares of Series E Preferred Stock held by such holder at the
conversion rate if the closing sale price of our common stock
equals at least 175% of the conversion price for twenty consecutive
trading days.
Optional
Conversion by the Holders. The holders of the Series E
Preferred Stock are entitled to convert any whole number of shares
of Series E Preferred Stock into shares of common stock at the
conversion price of $2.31, subject to adjustments.
Maturity
Redemption by the Holders. At any time from and after the tenth
business day prior to the maturity date, any holder may require the
Company to redeem all or any number of shares of Series E
Preferred Stock held by such holder at a purchase price equal to
105% of the conversion amount.
Redemption/Conversion
Option of the Holders upon a Triggering
Event. After a
triggering event (as described in the certificate of designation),
each holder will have the right, at such holder's option, to
require the Company to redeem and/or convert all or a portion of
such holder's Series E Preferred Stock. Any such redemption
would be at a price per share equal to the greater of (i) 120%
of the
10
Table of
Contents
conversion amount and
(ii) the product of (A) the conversion rate in effect
multiplied by (B) 120% of the greatest closing sale price of
the common stock on any trading day during the period specified in
the certificate of designation. Any such triggering event
conversion would be at a conversion rate equal to the quotient of
(i) 120% of the conversion amount divided by (ii) the
lower of (A) the applicable conversion price in effect on the
trading day immediately preceding the notice of conversion and
(B) the greater of (1) $0.55 and (2) 75% of the
lowest VWAP of the common stock on any trading day during the
period specified in the certificate of designation.
Redemption
Right of the Holders Upon a Change of
Control. In the
event of a fundamental transaction, as described in the certificate
of designation, generally including, among other transactions, any
merger with or into another entity in which the Company is not the
surviving entity or the Company's stockholders immediately prior to
such merger or consolidation do not own at least 50% of the
outstanding voting securities of the surviving entity, or a sale of
all or substantially all of the Company's assets, each holder will
have the right, at such holder's option, to require the Company to
redeem all or a portion of such holder's Series E Preferred
Stock. Any such change of control redemption would be at a price
per share equal to 125% of the greatest of (i) the conversion
amount being redeemed, (ii) the product of (A) the
conversion amount being redeemed multiplied by (B) the
quotient determined by dividing (1) the greatest closing sale
price of the common stock during the period specified in the
certificate of designation by (2) the conversion price, and
(iii) the product of (A) the conversion amount being
redeemed and (B) the quotient determined by dividing
(1) the aggregate cash consideration and the aggregate cash
value of any non-cash consideration per share of common stock to be
paid to holders of the common stock upon consummation of such
change of control by (2) the conversion price.
Voting
Rights. The shares
of Series E Preferred Stock have no voting rights, except on
matters required by law or under the certificate of designation to
be submitted to a class vote of the holders of the Series E
Preferred Stock.
Delaware Anti-Takeover Law and Provisions of our Certificate of
Incorporation and Bylaws
Delaware
Anti-Takeover Law. We are subject to Section 203 of
the DGCL. Section 203 generally prohibits a public Delaware
corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date
of the transaction in which the person became an interested
stockholder, unless:
- •
- prior to the date of
the transaction, the board of directors of the corporation approved
either the business combination or the transaction which resulted
in the stockholder becoming an interested stockholder;
- •
- the interested
stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced,
excluding for purposes of determining the number of shares
outstanding (a) shares owned by persons who are directors and
also officers and (b) shares owned by employee stock plans in
which employee participants do not have the right to determine
confidentially whether shares held subject to the plan will be
tendered in a tender or exchange offer; or
- •
- on or subsequent to
the date of the transaction, the business combination is approved
by the board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote
of at least two-thirds of the outstanding voting stock which is not
owned by the interested stockholder.
Section 203
defines a business combination to include:
- •
- any merger or
consolidation involving the corporation and the interested
stockholder;
11
Table of
Contents
- •
- any sale, transfer,
pledge or other disposition involving the interested stockholder of
10% or more of the assets of the corporation;
- •
- subject to
exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder; and
- •
- the receipt by the
interested stockholder of the benefit of any loans, advances,
guarantees, pledges or other financial benefits provided by or
through the corporation.
In general,
Section 203 defines an interested stockholder as any entity or
person beneficially owning 15% or more of the outstanding voting
stock of the corporation or any entity or person affiliated with or
controlling or controlled by the entity or person.
Certificate
of Incorporation and Bylaws. Provisions of our certificate of
incorporation and bylaws may delay or discourage transactions
involving an actual or potential change in our control or change in
our management, including transactions in which stockholders might
otherwise receive a premium for their shares or transactions that
our stockholders might otherwise deem to be in their best
interests. Therefore, these provisions could adversely affect the
price of our common stock. Among other things, our certificate of
incorporation and bylaws:
- •
- permit our board of
directors to issue up to 5,000,000 shares of preferred stock, with
any rights, preferences and privileges as they may
designate;
- •
- provide that the
authorized number of directors may be changed only by resolution of
the board of directors;
- •
- provide that all
vacancies, including newly created directorships, may, except as
otherwise required by law and subject to the rights of the holders
of any series of preferred stock, be filled by the affirmative vote
of a majority of directors then in office, even if less than a
quorum;
- •
- divide our board of
directors into three classes;
- •
- generally require
that any action to be taken by our stockholders must be effected at
a duly called annual or special meeting of stockholders and not be
taken by written consent;
- •
- provide that
stockholders seeking to present proposals before a meeting of
stockholders or to nominate candidates for election as directors at
a meeting of stockholders must provide notice in writing in a
timely manner, and also specify requirements as to the form and
content of a stockholder's notice;
- •
- do not provide for
cumulative voting rights (therefore allowing the holders of a
majority of the shares of common stock entitled to vote in any
election of directors to elect all of the directors standing for
election, if they should so choose); and
- •
- provide that, except
as otherwise required by statute and subject to the rights of the
holders of any series of preferred stock, special meetings of our
stockholders may be called only by the board of directors pursuant
to a resolution adopted by a majority of the directors then in
office.
The amendment
of any of these provisions, with the exception of the ability of
our board of directors to issue shares of preferred stock and
designate any rights, preferences and privileges thereto, would
require approval by the holders of at least two-thirds of our then
outstanding common stock.
Transfer Agent and Registrar
The transfer
agent and registrar for our common stock and preferred stock is
Broadridge Corporate Issuer Solutions, Inc. The transfer agent
and registrar's address is 1717 Arch Street, Suite 1300,
Philadelphia, Pennsylvania, 19103.
12
Table of
Contents
DESCRIPTION OF WARRANTS
We may issue
warrants for the purchase of common stock, preferred stock and/or
debt securities in one or more series. We may issue warrants
independently or together with common stock, preferred stock and/or
debt securities, and the warrants may be attached to or separate
from these securities. The following description, together with the
additional information we include in any applicable prospectus
supplement or any related free writing prospectus, summarizes the
material terms and provisions of the warrants that we may offer
under this prospectus and the related warrant agreements and
warrant certificates. While the terms we have summarized below will
apply generally to any future warrants that we may offer, we will
describe the particular terms of any series of warrants in more
detail in the applicable prospectus supplement or free writing
prospectus. The terms of any warrants offered under that prospectus
supplement or free writing prospectus may differ from the terms
described below. The following description and any description of
the warrants in a prospectus supplement or free writing prospectus
may not be complete and is subject to and qualified in its entirety
by reference to the terms and provisions of the warrant agreement
and warrant certificate, which we will file with the SEC in
connection with an issuance of the warrants.
General
We will
evidence each series of warrants by warrant certificates that we
will issue under a separate warrant agreement. We will enter into
the warrant agreement with a warrant agent. We will indicate the
name and address of the warrant agent in the applicable prospectus
supplement relating to a particular series of warrants.
We will
describe in the applicable prospectus supplement the terms of the
series of warrants, including:
- •
- the offering price
and aggregate number of warrants offered;
- •
- the currency for
which the warrants may be purchased;
- •
- if applicable, the
designation and terms of the securities with which the warrants are
issued and the number of warrants issued with each such security or
each principal amount of such security;
- •
- if applicable, the
date on and after which the warrants and the related securities
will be separately transferable;
- •
- in the case of
warrants to purchase debt securities, the principal amount of debt
securities purchasable upon exercise of one warrant and the price
at, and currency in which, this principal amount of debt securities
may be purchased upon such exercise;
- •
- in the case of
warrants to purchase common stock or preferred stock, the number of
shares of common stock or preferred stock, as the case may be,
purchasable upon the exercise of one warrant and the price at which
these shares may be purchased upon such exercise;
- •
- the effect of any
merger, consolidation, sale or other disposition of our business on
the warrant agreement and the warrants;
- •
- the terms of any
rights to redeem or call the warrants;
- •
- any provisions for
changes to or adjustments in the exercise price or number of
securities issuable upon exercise of the warrants;
- •
- the periods during
which, and places at which, the warrants are exercisable;
- •
- the manner of
exercise;
- •
- the dates on which
the right to exercise the warrants will commence and
expire;
13
Table of
Contents
- •
- the manner in which
the warrant agreement and warrants may be modified;
- •
- federal income tax
consequences of holding or exercising the warrants;
- •
- the offering price
and aggregate number of warrants offered;
- •
- the terms of the
securities issuable upon exercise of the warrants; and
- •
- any other specific
terms, preferences, rights or limitations of or restrictions on the
warrants.
Prior to the
exercise of their warrants, holders of warrants will not have any
of the rights of holders of the securities purchasable upon such
exercise, including the right to receive dividends, if any, or,
payments upon our liquidation, dissolution or winding up or to
exercise voting rights, if any.
Exercise of Warrants
Each warrant
will entitle the holder to purchase the securities that we specify
in the applicable prospectus supplement at the exercise price that
we describe in the applicable prospectus supplement. Unless we
otherwise specify in the applicable prospectus supplement, holders
of the warrants may exercise the warrants at any time up to the
specified time on the expiration date that we set forth in the
applicable prospectus supplement. After the close of business on
the expiration date, unexercised warrants will become
void.
Holders of the
warrants may exercise the warrants by delivering the warrant
certificate representing the warrants to be exercised together with
specified information, and paying the required amount to the
warrant agent in immediately available funds, as provided in the
applicable prospectus supplement. We will set forth on the reverse
side of the warrant certificate and in the applicable prospectus
supplement the information that the holder of the warrant will be
required to deliver to the warrant agent.
Upon receipt of
the required payment and the warrant certificate properly completed
and duly executed at the corporate trust office of the warrant
agent or any other office indicated in the applicable prospectus
supplement, we will issue and deliver the securities purchasable
upon such exercise. If fewer than all of the warrants represented
by the warrant certificate are exercised, then we will issue a new
warrant certificate for the remaining amount of warrants. If we so
indicate in the applicable prospectus supplement, holders of the
warrants may surrender securities as all or part of the exercise
price for warrants.
Governing Law
Unless we
provide otherwise in the applicable prospectus supplement, the
warrants and warrant agreements will be governed by and construed
in accordance with the laws of the State of New York.
Enforceability of Rights by Holders of Warrants
Each warrant
agent will act solely as our agent under the applicable warrant
agreement and will not assume any obligation or relationship of
agency or trust with any holder of any warrant. A single bank or
trust company may act as warrant agent for more than one issue of
warrants. A warrant agent will have no duty or responsibility in
case of any default by us under the applicable warrant agreement or
warrant, including any duty or responsibility to initiate any
proceedings at law or otherwise, or to make any demand upon us. Any
holder of a warrant may, without the consent of the related warrant
agent or the holder of any other warrant, enforce by appropriate
legal action its right to exercise, and receive the securities
purchasable upon exercise of, its warrants.
14
Table of
Contents
DESCRIPTION OF DEBT SECURITIES
We may issue
senior debt securities from time to time, in one or more series, as
either senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will
apply generally to any future debt securities we may offer under
this prospectus, we will describe the particular terms of any debt
securities offered through that prospectus supplement or free
writing prospectus. The terms of any debt securities we offer under
a prospectus supplement or free writing prospectus may differ from
the terms we describe below. Unless the context requires otherwise,
whenever we refer to the "indentures," we also are referring to any
supplemental indentures that specify the terms of a particular
series of debt securities.
We will issue
any senior debt securities under the senior indenture that we will
enter into with the trustee named in the senior indenture. We will
issue any subordinated debt securities under the subordinated
indenture that we will enter into with the trustee named in the
subordinated indenture. We have filed forms of these documents as
exhibits to the registration statement, of which this prospectus is
a part, and supplemental indentures and forms of debt securities
containing the terms of the debt securities being offered will be
filed as exhibits to the registration statement of which this
prospectus is a part or will be incorporated by reference from
reports that we file with the SEC.
The indentures
will be qualified under the Trust Indenture Act of 1939, as
amended, or the Trust Indenture Act. We use the term "trustee" to
refer to either the trustee under the senior indenture or the
trustee under the subordinated indenture, as applicable.
The following
summaries of material provisions of the senior debt securities, the
subordinated debt securities and the indentures are subject to, and
qualified in their entirety by reference to, all of the provisions
of the indenture applicable to a particular series of debt
securities. We urge you to read the applicable prospectus
supplement or free writing prospectus and any related free writing
prospectuses related to the debt securities that we may offer under
this prospectus, as well as the complete applicable indenture that
contains the terms of the debt securities. Except as we may
otherwise indicate, the terms of the senior indenture and the
subordinated indenture are identical.
General
We will
describe in the applicable prospectus supplement or free writing
prospectus the terms of the series of debt securities being
offered, including:
- •
- the title;
- •
- the principal amount
being offered, and if a series, the total amount authorized and the
total amount outstanding;
- •
- any limit on the
amount that may be issued;
- •
- whether or not we
will issue the series of debt securities in global form, and, if
so, the terms and who the depository will be;
- •
- the maturity
date;
- •
- whether and under
what circumstances, if any, we will pay additional amounts on any
debt securities held by a person who is not a United States person
for tax purposes, and whether we can redeem the debt securities if
we have to pay such additional amounts;
- •
- the annual interest
rate, which may be fixed or variable, or the method for determining
the rate and the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest
payment dates or the method for determining such dates;
15
Table of
Contents
- •
- whether or not the
debt securities will be secured or unsecured, and the terms of any
secured debt;
- •
- the terms of the
subordination of any series of subordinated debt;
- •
- the place where
payments will be payable;
- •
- restrictions on
transfer, sale or other assignment, if any;
- •
- our right, if any, to
defer payment of interest and the maximum length of any such
deferral period;
- •
- the date, if any,
after which, the conditions upon which, and the price at which, we
may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms
of those redemption provisions;
- •
- the date, if any, on
which, and the price at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder's option, to purchase, the series of
debt securities and the currency or currency unit in which the debt
securities are payable;
- •
- whether the indenture
will restrict our ability or the ability of our subsidiary
to:
- •
- incur additional
indebtedness;
- •
- issue additional
securities;
- •
- create liens;
- •
- pay dividends or make
distributions in respect of our capital stock or the capital stock
of our subsidiary;
- •
- redeem capital
stock;
- •
- place restrictions on
our subsidiary's ability to pay dividends, make distributions or
transfer assets;
- •
- make investments or
other restricted payments;
- •
- sell or otherwise
dispose of assets;
- •
- enter into
sale-leaseback transactions;
- •
- engage in
transactions with stockholders or affiliates;
- •
- issue or sell stock
of our subsidiary;
- •
- effect a
consolidation or merger;
- •
- whether the indenture
will require us to maintain any interest coverage, fixed charge,
cash flow-based, asset-based or other financial ratios;
- •
- a discussion of
certain material or special United States federal income tax
considerations applicable to the debt securities;
- •
- information
describing any book-entry features;
- •
- provisions for a
sinking fund purchase or other analogous fund, if any;
- •
- the applicability of
the provisions in the indenture on discharge;
16
Table of
Contents
- •
- whether the debt
securities are to be offered at a price such that they will be
deemed to be offered at an "original issue discount" as defined in
paragraph (a) of Section 1273 of the Internal Revenue
Code of 1986, as amended;
- •
- the denominations in
which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple thereof;
- •
- the currency of
payment of debt securities if other than U.S. dollars and the
manner of determining the equivalent amount in U.S. dollars;
and
- •
- any other specific
terms, preferences, rights or limitations of, or restrictions on,
the debt securities, including any additional events of default or
covenants provided with respect to the debt securities, and any
terms that may be required by us or advisable under applicable laws
or regulations or advisable in connection with the marketing of the
debt securities.
Conversion or Exchange Rights
We will set
forth in the applicable prospectus supplement or free writing
prospectus the terms on which a series of debt securities may be
convertible into or exchangeable for our common stock, our
preferred stock or other securities (including securities of a
third-party). We will include provisions as to whether conversion
or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of
shares of our common stock, our preferred stock or other securities
(including securities of a third-party) that the holders of the
series of debt securities receive would be subject to
adjustment.
Consolidation, Merger or Sale
Unless we
provide otherwise in the prospectus supplement or free writing
prospectus applicable to a particular series of debt securities,
the indentures will not contain any covenant that restricts our
ability to merge or consolidate, or sell, convey, transfer or
otherwise dispose of all or substantially all of our assets.
However, any successor to or acquirer of such assets must assume
all of our obligations under the indentures or the debt securities,
as appropriate. If the debt securities are convertible into or
exchangeable for other securities of ours or securities of other
entities, the person with whom we consolidate or merge or to whom
we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt
securities would have received if they had converted the debt
securities before the consolidation, merger or sale.
Events of Default Under the Indenture
Unless we
provide otherwise in the prospectus supplement or free writing
prospectus applicable to a particular series of debt securities,
the following are events of default under the indentures with
respect to any series of debt securities that we may
issue:
- •
- if we fail to pay
interest when due and payable and our failure continues for
90 days and the time for payment has not been extended;
- •
- if we fail to pay the
principal, premium or sinking fund payment, if any, when due and
payable at maturity, upon redemption or repurchase or otherwise,
and the time for payment has not been extended;
- •
- if we fail to observe
or perform any other covenant contained in the debt securities or
the indentures, other than a covenant specifically relating to
another series of debt securities, and our failure continues for
90 days after we receive notice from the trustee or holders of
at least 25% in aggregate principal amount of the outstanding debt
securities of the applicable series; and
17
Table of
Contents
- •
- if specified events
of bankruptcy, insolvency or reorganization occur.
We will
describe in each applicable prospectus supplement or free writing
prospectus any additional events of default relating to the
relevant series of debt securities.
If an event of
default with respect to debt securities of any series occurs and is
continuing, other than an event of default specified in the last
bullet point above, the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of
that series, by notice to us in writing, and to the trustee if
notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, due and payable
immediately. If an event of default specified in the last bullet
point above occurs with respect to us, the unpaid principal,
premium, if any, and accrued interest, if any, of each issue of
debt securities then outstanding shall be due and payable without
any notice or other action on the part of the trustee or any
holder.
The holders of
a majority in principal amount of the outstanding debt securities
of an affected series may waive any default or event of default
with respect to the series and its consequences, except defaults or
events of default regarding payment of principal, premium, if any,
or interest, unless we have cured the default or event of default
in accordance with the indenture. Any waiver shall cure the default
or event of default.
Subject to the
terms of the indentures, if an event of default under an indenture
shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a
majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
trustee, or exercising any trust or power conferred on the trustee,
with respect to the debt securities of that series, provided
that:
- •
- the direction so
given by the holder is not in conflict with any law or the
applicable indenture; and
- •
- subject to its duties
under the Trust Indenture Act, the trustee need not take any action
that might involve it in personal liability or might be unduly
prejudicial to the holders not involved in the
proceeding.
A holder of the
debt securities of any series will have the right to institute a
proceeding under the indentures or to appoint a receiver or
trustee, or to seek other remedies if:
- •
- the holder has given
written notice to the trustee of a continuing event of default with
respect to that series;
- •
- the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request, and such
holders have offered reasonable indemnity to the trustee or
security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as
trustee; and
- •
- the trustee does not
institute the proceeding, and does not receive from the holders of
a majority in aggregate principal amount of the outstanding debt
securities of that series other conflicting directions within
90 days after the notice, request and offer.
These
limitations do not apply to a suit instituted by a holder of debt
securities if we default in the payment of the principal, premium,
if any, or interest on, the debt securities, or other defaults that
may be specified in the applicable prospectus supplement or free
writing prospectus.
We will
periodically file statements with the trustee regarding our
compliance with specified covenants in the indentures.
18
Table of
Contents
Modification of Indenture; Waiver
Subject to the
terms of the indenture for any series of debt securities that we
may issue, we and the trustee may change an indenture without the
consent of any holders with respect to the following specific
matters:
- •
- to fix any ambiguity,
defect or inconsistency in the indenture;
- •
- to comply with the
provisions described above under "Description of Our Debt
Securities—Consolidation, Merger or Sale;"
- •
- to comply with any
requirements of the SEC in connection with the qualification of any
indenture under the Trust Indenture Act;
- •
- to add to, delete
from or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication and
delivery of debt securities, as set forth in the indenture;
- •
- to provide for the
issuance of and establish the form and terms and conditions of the
debt securities of any series as provided under "Description of Our
Debt Securities—General," to establish the form of any
certifications required to be furnished pursuant to the terms of
the indenture or any series of debt securities, or to add to the
rights of the holders of any series of debt securities;
- •
- to evidence and
provide for the acceptance of appointment hereunder by a successor
trustee;
- •
- to provide for
uncertificated debt securities and to make all appropriate changes
for such purpose;
- •
- to add to our
covenants such new covenants, restrictions, conditions or
provisions for the benefit of the holders, to make the occurrence,
or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an
event of default or to surrender any right or power conferred to us
in the indenture; or
- •
- to change anything
that does not materially adversely affect the interests of any
holder of debt securities of any series.
In addition,
under the indentures, the rights of holders of a series of debt
securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each series
that is affected. However, subject to the terms of the indenture
for any series of debt securities that we may issue or as otherwise
provided in the prospectus supplement or free writing prospectus
applicable to a particular series of debt securities, we and the
trustee may make the following changes only with the consent of
each holder of any outstanding debt securities affected:
- •
- extending the stated
maturity of the series of debt securities;
- •
- reducing the
principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities; or
- •
- reducing the
percentage of debt securities, the holders of which are required to
consent to any amendment, supplement, modification or
waiver.
Discharge
Each indenture
provides that, subject to the terms of the indenture and any
limitation otherwise provided in the prospectus supplement or free
writing prospectus applicable to a particular series of
19
Table of
Contents
debt securities, we
can elect to be discharged from our obligations with respect to one
or more series of debt securities, except for specified
obligations, including obligations to:
- •
- register the transfer
or exchange of debt securities of the series;
- •
- replace stolen, lost
or mutilated debt securities of the series;
- •
- maintain paying
agencies;
- •
- hold monies for
payment in trust;
- •
- recover excess money
held by the trustee;
- •
- compensate and
indemnify the trustee; and
- •
- appoint any successor
trustee.
In order to
exercise our rights to be discharged, we must deposit with the
trustee money or government obligations sufficient to pay all the
principal of, any premium and interest on, the debt securities of
the series on the dates payments are due.
Form, Exchange and Transfer
We will issue
the debt securities of each series only in fully registered form
without coupons and, unless we otherwise specify in the applicable
prospectus supplement or free writing prospectus, in denominations
of $1,000 and any integral multiple thereof. The indentures provide
that we may issue debt securities of a series in temporary or
permanent global form and as book-entry securities that will be
deposited with, or on behalf of, The Depository Trust Company or
another depository named by us and identified in a prospectus
supplement or free writing prospectus with respect to that
series.
At the option
of the holder, subject to the terms of the indentures and the
limitations applicable to global securities described in the
applicable prospectus supplement or free writing prospectus, the
holder of the debt securities of any series can exchange the debt
securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal
amount.
Subject to the
terms of the indentures and the limitations applicable to global
securities set forth in the applicable prospectus supplement or
free writing prospectus, holders of the debt securities may present
the debt securities for exchange or for registration of transfer,
duly endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange, we will make no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We will name in
the applicable prospectus supplement or free writing prospectus the
security registrar, and any transfer agent in addition to the
security registrar, that we initially designate for any debt
securities. We may at any time designate additional transfer agents
or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except
that we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series. If we elect to
redeem the debt securities of any series, we will not be required
to:
- •
- issue, register the
transfer of, or exchange any debt securities of that series during
a period beginning at the opening of business 15 days before
the day of mailing of a notice of redemption of any debt securities
that may be selected for redemption and ending at the close of
business on the day of the mailing; or
- •
- register the transfer
of or exchange any debt securities so selected for redemption, in
whole or in part, except the unredeemed portion of any debt
securities we are redeeming in part.
20
Table of
Contents
Information Concerning the Trustee
The trustee,
other than during the occurrence and continuance of an event of
default under an indenture, undertakes to perform only those duties
as are specifically set forth in the applicable indenture. Upon an
event of default under an indenture, the trustee must use the same
degree of care as a prudent person would exercise or use in the
conduct of his or her own affairs.
Subject to this
provision, the trustee is under no obligation to exercise any of
the powers given it by the indentures at the request of any holder
of debt securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it might
incur.
Payment and Paying Agents
Unless we
otherwise indicate in the applicable prospectus supplement or free
writing prospectus, we will make payment of the interest on any
debt securities on any interest payment date to the person in whose
name the debt securities, or one or more predecessor securities,
are registered at the close of business on the regular record date
for the interest.
We will pay
principal of and any premium and interest on the debt securities of
a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable
prospectus supplement or free writing prospectus, we will make
interest payments by check that we will mail to the holder or by
wire transfer to certain holders. Unless we otherwise indicate in
the applicable prospectus supplement or free writing prospectus, we
will designate the corporate trust office of the trustee as our
sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement
or free writing prospectus any other paying agents that we
initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the
debt securities of a particular series.
All money we
pay to a paying agent or the trustee for the payment of the
principal of or any premium or interest on any debt securities that
remains unclaimed at the end of two years after such principal,
premium or interest has become due and payable will be repaid to
us, and the holder of the debt security thereafter may look only to
us for payment thereof.
Governing Law
The indentures
and the debt securities will be governed by and construed in
accordance with the laws of the State of New York, except to the
extent that the Trust Indenture Act is applicable.
Ranking of Debt Securities
The
subordinated debt securities will be subordinate and junior in
priority of payment to certain of our other indebtedness to the
extent described in a prospectus supplement or free writing
prospectus. The subordinated indenture does not limit the amount of
subordinated debt securities that we may issue. It also does not
limit us from issuing any other secured or unsecured
debt.
The senior debt
securities will rank equally in right of payment to all our other
senior unsecured debt. The senior indenture does not limit the
amount of senior debt securities that we may issue. It also does
not limit us from issuing any other secured or unsecured
debt.
21
Table of
Contents
DESCRIPTION OF UNITS
We may issue
units comprised of shares of common stock, shares of preferred
stock, debt securities and warrants in any combination. We may
issue units in such amounts and in as many distinct series as we
wish. This section outlines certain provisions of the units that we
may issue. If we issue units, they will be issued under one or more
unit agreements to be entered into between us and a bank or other
financial institution, as unit agent. The specific terms of any
series of units offered will be described in the applicable
prospectus supplement or free writing prospectus. The specific
terms of any series of units may differ from the general
description of terms presented below.
We will file as
exhibits to the registration statement of which this prospectus is
a part, or will incorporate by reference from reports that we file
with the SEC, the form of unit agreement that describes the terms
of the series of units we are offering, and any supplemental
agreements, before the issuance of the related series of units. The
following summaries of material terms and provisions of the units
are subject to, and qualified in their entirety by reference to,
all the provisions of the unit agreement and any supplemental
agreements applicable to a particular series of units. We urge you
to read any prospectus supplement related to any series of units we
may offer, as well as the complete unit agreement and unit
certificate that contain the terms of the units.
General
Each unit that
we may issue will be issued so that the holder of the unit is also
the holder of each security included in the unit. Thus, the holder
of a unit will have the rights and obligations of a holder of each
included security. The unit agreement under which a unit is issued
may provide that the securities included in the unit may not be
held or transferred separately, at any time or at any time before a
specified date. The applicable prospectus supplement may
describe:
- •
- the designation and
terms of the units and of the securities comprising the units,
including whether and under what circumstances those securities may
be held or transferred separately;
- •
- any provisions of the
governing unit agreement;
- •
- the price or prices
at which such units will be issued;
- •
- the applicable United
States federal income tax considerations relating to the
units;
- •
- any provisions for
the issuance, payment, settlement, transfer or exchange of the
units or of the securities comprising the units; and
- •
- any other terms of
the units and of the securities comprising the units.
The provisions
described in this section, as well as those described under
"Description of Common Stock and Preferred Stock," "Description of
Warrants" and "Description of Debt Securities" will apply to the
securities included in each unit, to the extent relevant and as may
be updated in any prospectus supplements.
Issuance in Series
We may issue
units in such amounts and in as many distinct series as we wish.
This section summarizes terms of the units that apply generally to
all series. Most of the financial and other specific terms of a
particular series of units will be described in the applicable
prospectus supplement.
Unit Agreements
We will issue
the units under one or more unit agreements to be entered into
between us and a bank or other financial institution, as unit
agent. We may add, replace or terminate unit agents from
22
Table of
Contents
time to time. We will
identify the unit agreement under which each series of units will
be issued and the unit agent under that agreement in the applicable
prospectus supplement.
The following
provisions will generally apply to all unit agreements unless
otherwise stated in the applicable prospectus
supplement:
Modification without Consent
We and the
applicable unit agent may amend any unit or unit agreement without
the consent of any holder:
- •
- to cure any
ambiguity, including modifying any provisions of the governing unit
agreement that differ from those described below;
- •
- to correct or
supplement any defective or inconsistent provision; or
- •
- to make any other
change that we believe is necessary or desirable and will not
adversely affect the interests of the affected holders in any
material respect.
We do not need
any approval to make changes that affect only units to be issued
after the changes take effect. We may also make changes that do not
adversely affect a particular unit in any material respect, even if
they adversely affect other units in a material respect. In those
cases, we do not need to obtain the approval of the holder of the
unaffected unit; we need only obtain any required approvals from
the holders of the affected units.
Modification with Consent
We may not
amend any particular unit or a unit agreement with respect to any
particular unit unless we obtain the consent of the holder of that
unit, if the amendment would:
- •
- impair any right of
the holder to exercise or enforce any right under a security
included in the unit if the terms of that security require the
consent of the holder to any changes that would impair the exercise
or enforcement of that right; or
- •
- reduce the percentage
of outstanding units or any series or class the consent of whose
holders is required to amend that series or class, or the
applicable unit agreement with respect to that series or class, as
described below.
Any other
change to a particular unit agreement and the units issued under
that agreement would require the following approval:
- •
- If the change affects
only the units of a particular series issued under that agreement,
the change must be approved by the holders of a majority of the
outstanding units of that series; or
- •
- If the change affects
the units of more than one series issued under that agreement, it
must be approved by the holders of a majority of all outstanding
units of all series affected by the change, with the units of all
the affected series voting together as one class for this
purpose.
These
provisions regarding changes with majority approval also apply to
changes affecting any securities issued under a unit agreement, as
the governing document.
In each case,
the required approval must be given by written consent.
Unit Agreements Will Not Be Qualified under Trust Indenture
Act
No unit
agreement will be qualified as an indenture, and no unit agent will
be required to qualify as a trustee, under the Trust Indenture Act.
Therefore, holders of units issued under unit agreements will not
have the protections of the Trust Indenture Act with respect to
their units.
23
Table of
Contents
Mergers and Similar Transactions Permitted; No Restrictive
Covenants or Events of Default
The unit
agreements will not restrict our ability to merge or consolidate
with, or sell our assets to, another corporation or other entity or
to engage in any other transactions. If at any time we merge or
consolidate with, or sell our assets substantially as an entirety
to, another corporation or other entity, the successor entity will
succeed to and assume our obligations under the unit agreements. We
will then be relieved of any further obligation under these
agreements.
The unit
agreements will not include any restrictions on our ability to put
liens on our assets, nor will they restrict our ability to sell our
assets. The unit agreements also will not provide for any events of
default or remedies upon the occurrence of any events of
default.
Governing Law
Unless we
provide otherwise in the applicable prospectus supplement, the unit
agreements and the units will be governed by and construed in
accordance with the laws of the State of New York.
Form, Exchange and Transfer
We will issue
each unit in global (i.e., book-entry) form only. Units
in book-entry form will be represented by a global security
registered in the name of a depositary, which will be the holder of
all the units represented by the global security. Those who own
beneficial interests in a unit will do so through participants in
the depositary's system, and the rights of these indirect owners
will be governed solely by the applicable procedures of the
depositary and its participants. We will describe book-entry
securities, and other terms regarding the issuance and registration
of the units in the applicable prospectus supplement.
Each unit and
all securities comprising the unit will be issued in the same
form.
If we issue any
units in registered, non-global form, the following will apply to
them.
The units will
be issued in the denominations stated in the applicable prospectus
supplement. Holders may exchange their units for units of smaller
denominations or combined into fewer units of larger denominations,
as long as the total amount is not changed.
- •
- Holders may exchange
or transfer their units at the office of the unit agent. Holders
may also replace lost, stolen, destroyed or mutilated units at that
office. We may appoint another entity to perform these functions or
perform them ourselves.
- •
- Holders will not be
required to pay a service charge to transfer or exchange their
units, but they may be required to pay for any tax or other
governmental charge associated with the transfer or exchange. The
transfer or exchange, and any replacement, will be made only if our
transfer agent is satisfied with the holder's proof of legal
ownership. The transfer agent may also require an indemnity before
replacing any units.
- •
- If we have the right
to redeem, accelerate or settle any units before their maturity,
and we exercise our right as to less than all those units or other
securities, we may block the exchange or transfer of those units
during the period beginning 15 days before the day we mail the
notice of exercise and ending on the day of that mailing, in order
to freeze the list of holders to prepare the mailing. We may also
refuse to register transfers of or exchange any unit selected for
early settlement, except that we will continue to permit transfers
and exchanges of the unsettled portion of any unit being partially
settled. We may also block the transfer or exchange of any unit in
this manner if the unit includes securities that are or may be
selected for early settlement.
24
Table of
Contents
Only the
depositary will be entitled to transfer or exchange a unit in
global form, since it will be the sole holder of the
unit.
Payments and Notices
In making
payments and giving notices with respect to our units, we will
follow the procedures as described in the applicable prospectus
supplement.
25
Table of
Contents
SELLING SECURITYHOLDERS
Selling
securityholders are persons or entities that, directly or
indirectly, have acquired or will from time to time acquire from us
common stock, preferred stock, warrants, debt securities or units,
as applicable, in various private transactions. Such selling
securityholders may be parties to registration rights agreements
with us, or we otherwise may have agreed or may agree in the future
to register their securities for resale. The initial purchasers of
our securities, as well as their transferees, pledgees, donees or
successors, all of whom we refer to as "selling securityholders,"
may from time to time offer and sell the securities pursuant to
this prospectus and any applicable prospectus
supplement.
The selling
securityholders may offer for sale all or some portion of the
securities that they hold. To the extent that any of the selling
securityholders are broker or dealers, they are deemed to be, under
interpretations of the SEC, "underwriters" within the meaning of
the Securities Act.
The applicable
prospectus supplement will set forth the name of each of the
selling securityholders and the number and classes of our
securities beneficially owned by such selling securityholders that
are covered by such prospectus supplement. The applicable
prospectus supplement will also disclose whether any of the selling
securityholders has held any position or office with, has been
employed by or otherwise has had a material relationship with us
during the three years prior to the date of the prospectus
supplement.
26
Table of
Contents
PLAN OF DISTRIBUTION
We, or selling
securityholders, may sell the securities domestically or abroad to
one or more underwriters for public offering and sale by them or
may sell the securities to investors directly or through dealers or
agents, or through a combination of methods. Any underwriter,
dealer or agent involved in the offer and sale of the securities
will be named in the applicable prospectus supplement.
Underwriters
may offer and sell the securities at: (i) a fixed price or
prices, which may be changed, (ii) market prices prevailing at
the time of sale, (iii) prices related to the prevailing
market prices at the time of sale or (iv) negotiated prices.
We also may, from time to time, authorize underwriters acting as
our agents to offer and sell the securities upon the terms and
conditions as are set forth in the applicable prospectus
supplement. In connection with the sale of securities, underwriters
may be deemed to have received compensation from us in the form of
underwriting discounts or commissions and may also receive
commissions from purchasers of securities for whom they may act as
agent. Underwriters may sell securities to or through dealers, and
the dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions
from the purchasers for whom they may act as agent.
Any
underwriting compensation paid by us to underwriters, dealers or
agents in connection with the offering of securities, and any
discounts, concessions or commissions allowed by underwriters to
participating dealers, will be set forth in the applicable
prospectus supplement. Dealers and agents participating in the
distribution of the securities may be deemed to be underwriters,
and any discounts and commissions received by them and any profit
realized by them on resale of the securities may be deemed to be
underwriting discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements
entered into with us and our operating partnership, to
indemnification against and contribution toward civil liabilities,
including liabilities under the Securities Act. We will describe
any indemnification agreement in the applicable prospectus
supplement.
Unless we
specify otherwise in the applicable prospectus supplement, any
series of securities issued hereunder will be a new issue with no
established trading market (other than the common stock, which is
listed on the Nasdaq Capital Market). If the Company sells any
shares of the common stock pursuant to a prospectus supplement,
such shares will be listed on the Nasdaq Capital Market, subject to
official notice of issuance. We may elect to list any other
securities issued hereunder on any exchange, but we are not
obligated to do so. Any underwriters or agents to or through whom
such securities are sold by us or our operating partnership for
public offering and sale may make a market in such securities, but
such underwriters or agents will not be obligated to do so and may
discontinue any market making at any time without notice. We cannot
assure you as to the liquidity of the trading market for any such
securities.
If indicated in
the applicable prospectus supplement, we may authorize underwriters
or other persons acting as our agents to solicit offers by
institutions or other suitable purchasers to purchase the
securities from us at the public offering price set forth in the
prospectus supplement, pursuant to delayed delivery contracts
providing for payment and delivery on the date or dates stated in
the prospectus supplement. These purchasers may include, among
others, commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable
institutions. Delayed delivery contracts will be subject to the
condition that the purchase of the securities covered by the
delayed delivery contracts will not at the time of delivery be
prohibited under the laws of any jurisdiction in the United States
to which the purchaser is subject. The underwriters and agents will
not have any responsibility with respect to the validity or
performance of these contracts.
To facilitate
the offering of the securities, certain persons participating in
the offering may engage in transactions that stabilize, maintain,
or otherwise affect the price of the securities. This may include
over-allotments or short sales of the securities, which involves
the sale by persons participating in the offering of more
securities than we sold to them. In these circumstances, these
persons would cover the
27
Table of
Contents
over-allotments or
short positions by making purchases in the open market or by
exercising their over-allotment option. In addition, these persons
may stabilize or maintain the price of the securities by bidding
for or purchasing securities in the open market or by imposing
penalty bids, whereby selling concessions allowed to dealers
participating in the offering may be reclaimed if securities sold
by them are repurchased in connection with stabilization
transactions. The effect of these transactions may be to stabilize
or maintain the market price of the securities at a level above
that which might otherwise prevail in the open market. These
transactions may occur on the Nasdaq Capital Market or any other
market where our securities may be traded, and may be discontinued
at any time.
The
underwriters, dealers and agents and their affiliates may be
customers of, engage in transactions with and perform services for
us and our operating partnership in the ordinary course of
business.
LEGAL MATTERS
The validity of
the securities being offered by this prospectus will be passed upon
by Goodwin Procter LLP, Boston, Massachusetts.
EXPERTS
The
consolidated financial statements of Plug Power Inc. and
subsidiaries as of December 31, 2018 and 2017, and for each of
the years in the three-year period ended December 31, 2018,
and management's assessment of the effectiveness of internal
control over financial reporting as of December 31, 2018, have
been incorporated by reference herein in reliance upon the report
of KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing. The audit report
covering the 2018 consolidated financial statements refers to a
change to the accounting for leases due to the adoption of
Accounting Standards Codification Topic 842, Leases.
WHERE YOU CAN FIND ADDITIONAL
INFORMATION
We file annual,
quarterly and special reports, proxy statements and other
information with the SEC. The SEC maintains a website that contains
reports, proxy and information statements and other information
regarding registrants that file electronically with the SEC at
www.sec.gov. In addition, we maintain a website that contains
information about us at www.plugpower.com. The information found
on, or otherwise accessible through, this website is not
incorporated into, and does not form a part of, this
prospectus or any other report or document we file with or furnish
to the SEC.
We have filed
with the SEC a registration statement on Form S-3, of which
this prospectus is a part, including exhibits, schedules and
amendments filed with, or incorporated by reference in, this
registration statement, under the Securities Act, with respect to
the securities registered hereby. This prospectus and any
accompanying prospectus supplement do not contain all of the
information set forth in the registration statement and exhibits
and schedules to the registration statement. For further
information with respect to our Company and the securities
registered hereby, reference is made to the registration statement,
including the exhibits to the registration statement. Statements
contained in this prospectus and any accompanying prospectus
supplement as to the contents of any contract or other document
referred to, or incorporated by reference in, this prospectus and
any accompanying prospectus supplement are not necessarily complete
and, where that contract is an exhibit to the registration
statement, each statement is qualified in all respects by the
exhibit to which the reference relates.
28
Table of
Contents
INCORPORATION OF CERTAIN INFORMATION BY
REFERENCE
The SEC allows
us to "incorporate by reference" the information we file with it,
which means that we can disclose important information to you by
referring you to those documents instead of having to repeat the
information in this prospectus. The information incorporated by
reference is considered to be part of this prospectus, and later
information that we file with the SEC will automatically update and
supersede this information. We incorporate by reference the
documents listed below that we have filed with the SEC:
- •
-
our Annual Report on Form 10-K for the year ended
December 31, 2018, filed with the SEC on March 13,
2019;
- •
- our Quarterly Reports
on Form 10-Q for the quarters ended March 31, 2019,
June 30, 2019 and September 30, 2019, filed with the SEC
on
May 8, 2019,
August 9, 2019 and
November 8, 2019, respectively;
- •
-
our Definitive Proxy Statement on Schedule 14A filed with the
SEC on April 5, 2019 (solely to the extent specifically
incorporated by reference into the
Annual Report on Form 10-K for the year ended
December 31, 2018);
- •
- our Current Report on
Form 8-K filed with the SEC on
March 20, 2019,
April 3, 2019 (except for information contained therein
which is furnished rather than filed),
May 15, 2019,
June 10, 2019,
June 21, 2019,
September 9, 2019 and
December 2, 2019;
- •
-
the section entitled "Description of Registrant's Securities to be
Registered" contained in our Registration Statement on
Form 8-A, filed pursuant to Section 12(b) of the Exchange
Act, on October 1, 1999; and
- •
- all documents filed
by us with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act on or after the date of this prospectus
and prior to the termination of the offering of the underlying
securities (excluding any portions of such documents that are
deemed "furnished" to the SEC pursuant to applicable rules and
regulations).
We will furnish
without charge to each person, including any beneficial owner, to
whom a prospectus is delivered, on written or oral request of such
person, a copy of any or all of the documents incorporated by
reference in this prospectus (not including exhibits to such
documents, unless such exhibits are specifically incorporated by
reference in this prospectus or into such documents). You should
direct any requests for documents to:
Plug
Power Inc.
968 Albany-Shaker Road
Latham, New York, 12110
Attention: General Counsel
Telephone: (518) 782-7700
29
Table of
Contents

Plug Power (NASDAQ:PLUG)
Historical Stock Chart
From Dec 2020 to Jan 2021
Plug Power (NASDAQ:PLUG)
Historical Stock Chart
From Jan 2020 to Jan 2021