Plug Power(PLUG)2025-04-28 11:52Financing and Securities Issuance - The Company plans to issue an Initial Debenture with an aggregate principal amount of 199,500,000[4]. - The Company may issue additional debentures up to an aggregate principal amount of 210,000,000 under the Uncommitted Subscription Amount, with the same purchase price condition[4]. - The Company will issue warrants to the Buyer to acquire common stock upon completion of a Requisite Stockholder Approval, with the number of shares specified in the agreement[4]. - The Company is limited to offering no more than 105,000,000[11]. - The Buyer must be an Accredited Investor as defined in Rule 501(a)(3) of Regulation D to participate in this transaction[17]. - The Securities are classified as "restricted securities" and have not been registered under the Securities Act, limiting their resale options[20]. - The Company is required to register for resale all Registrable Securities under the Securities Act[6]. - The Company has filed an automatic shelf registration statement with the SEC, which became effective on June 8, 2022[82]. - The Company will maintain the effectiveness of the registration statement as long as the Registrable Securities are outstanding[85]. - The Company is required to secure the listing of the Underlying Securities on the Principal Market[92]. - The Company has reserved 31,500,000 Common Shares for issuance upon the exercise of the Warrants[99]. - The Company will take necessary corporate actions to authorize and reserve additional shares if the number of authorized shares is insufficient to meet obligations[99]. - The Company has outlined conditions for the sale of Debentures, including the execution of Transaction Documents by the Buyer[146]. - The Company has restrictions on the transfer of Securities, ensuring compliance with state and federal securities laws[144]. - The Company must execute and deliver a Debenture with a principal amount corresponding to the Additional Subscription Amount[166]. - The Company must ensure that no default or event of default has occurred immediately prior to or following the purchase and sale of the Debenture[175]. - The Company must satisfy all Equity Conditions, including effective registration with the SEC and compliance with reporting requirements[176]. - The Company is required to obtain all necessary governmental and regulatory approvals for the sale of securities[177]. Corporate Governance and Compliance - The Company has duly authorized, executed, and delivered the Transaction Documents, which constitute legal and binding obligations enforceable against the Company[31]. - The Company and its Subsidiaries are in good standing and have the requisite power to conduct their business as currently proposed[31]. - The issuance of the Securities has been duly authorized and will be validly issued, fully paid, and non-assessable[33]. - The Company is not required to obtain any additional consents or authorizations to execute and perform its obligations under the Transaction Documents[36]. - The execution and delivery of the Transaction Documents will not result in any violation of the Company's organizational documents or applicable laws[35]. - The Company has access to material nonpublic information that is not known to the Buyer, and the Buyer assumes the risk of this information[30]. - The Company is aware of the anti-manipulation rules of Regulation M that may apply to sales of Common Shares[27]. - The Company has no knowledge of any facts that might prevent it from obtaining necessary registrations or approvals for the transactions[36]. - The Company has timely filed all required SEC documents in the past two years, and these documents complied with applicable regulations[43]. - The financial statements included in the SEC documents have been prepared in accordance with GAAP and fairly present the Company's financial position[43]. - The Company is not currently contemplating any amendments or restatements of its financial statements[43]. - The Company has no material outstanding debt securities or credit agreements that could result in a Material Adverse Effect[56]. - The Company is not subject to any sanctions administered by relevant authorities and has not had funds blocked due to OFAC concerns[72]. - The Company has adequate rights to use all necessary intellectual property rights for its business operations[61]. - The Company is committed to timely filing all required reports with the SEC during the Reporting Period[90]. - The Company has no material disagreements with its accountants and lawyers, and it does not anticipate needing to restate any financial statements[77]. - The Company must obtain all necessary governmental, regulatory, or third-party consents for the sale of the Securities[159]. Financial Health and Operations - Since the last audited financial statements, there has been no material adverse effect on the Company or its subsidiaries[45]. - The Company has not declared or paid any dividends or made any material capital expenditures outside the ordinary course of business since the last audited financial statements[45]. - The Company has not received any communication regarding the suspension or delisting of its Common Shares from the Principal Market[47]. - The Company and its subsidiaries possess all necessary regulatory permits to conduct their businesses[47]. - There are no outstanding options or warrants related to the Company's shares that are not disclosed in the SEC documents[53]. - The Company maintains effective internal controls over financial reporting to ensure reliability and compliance with GAAP[65]. - The Company has timely filed all required tax returns and has set aside adequate provisions for material taxes[64]. - The Company and its Subsidiaries hold good title to all real property and personal property free and clear of all liens other than Permitted Liens[59][60]. - The Company is in compliance with all applicable environmental laws and holds all necessary permits to conduct its business[62]. - The Company is involved in fuel cell energy projects and hydrogen power generation projects, indicating a focus on renewable energy initiatives[125]. - The Company has established Project Financing Agreements to secure financing for its projects, which include lease or non-recourse debt financing[129]. - The Company has established Project Restricted Accounts to secure Project Financing, facilitating the management of proceeds generated by its projects[130]. - The Company is committed to maintaining financial responsibility and customary insurance coverage for its subsidiaries[139]. Risk Management and Security Interests - The Company and its Subsidiaries are required to guarantee the Debenture Obligations and grant security interests on their properties[103]. - The Company must execute and deliver security documents for any new Subsidiary within thirty days of its formation or acquisition[105]. - The Company is obligated to deposit accounts receivable proceeds into a controlled deposit account within three business days[106]. - Upon acquiring real property, the Company must execute a Mortgage and other requested security documents within sixty days[107]. - The Company must notify the Collateral Agent of any acquisition or lease of property within five days[107]. - The definition of "Excluded Property" includes real property with a fair market value below $2,000,000 and certain other specified assets[115]. - The Company has designated several subsidiaries as "Immaterial Subsidiaries," which collectively do not exceed 5% of the aggregate revenue of the Company and its subsidiaries[140]. - The Company maintains insurance against losses and risks deemed prudent and customary, ensuring the Collateral Agent is identified as a lender loss payee on all property insurance policies[139]. - The Collateral Agent must receive customary diligence searches and payoff letters for any debt or liens not permitted under the Transaction Documents[182]. - The Collateral Agent must receive property and liability insurance certificates indicating it as a lender loss payee[183]. - The Collateral Agent is authorized to act on behalf of the Buyers and exercise rights under the Transaction Documents[188]. - The Collateral Agent is not liable for actions taken under the Agreement except in cases of gross negligence or willful misconduct[189]. Closing Conditions and Timeline - The Initial Closing Date is set for 10:00 a.m. New York time on the first Business Day following the satisfaction of specified conditions[9]. - The Initial Closing must occur on or before May 12, 2025, or either party may terminate obligations under the Agreement[185]. - The Company must deliver a compliance certificate certifying adherence to all conditions precedent to the Additional Closing[181]. - The Company must provide documents to create a first priority, perfected security interest on properties located at specific addresses, including 291 Commercial Drive, Woodbine, GA[151]. - The Company is obligated to deliver an Officer's Certificate certifying the accuracy of its incorporation documents and board resolutions related to the transactions[153]. - The Company must ensure that all representations and warranties are true and correct in all material respects as of the Initial Closing[156]. - The Common Shares must remain listed on the Principal Market without suspension or delisting as of the Initial Closing[158]. - No events leading to a Material Adverse Effect or Event of Default should occur since December 31, 2024[178].