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Proc-Type: 2001,MIC-CLEAR
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EXHIBIT 1 INFORMATION WITH RESPECT TO DIRECTORS AND EXECUTIVE OFFICERS OF MECHANICAL TECHNOLGY INCORPORATED AND FIRST ALBANY COMPANIES, INC. The following table sets forth the name and present principal occupation or employment of the current directors and executive officers of Mechanical Technology, Incorporated (MTI), and First Albany Companies, Inc. (FAC). Name Occupation George C. McNamee Chairman of the Board and Officer, MTI Chairman of the Board and Officer, FAC Chairman of the Board, and Co-Chief Executive Officer of First Albany Companies, Inc Chairman of the Board and Chief Executive Officer of Plug Power, Inc. His present business address is 30 South Pearl Street, Albany, New York, 12207 William P. Acker, PhD Officer, MTI President, MTI. His present business address is 30 South Pearl Street, Albany, New York, 12207 Judith A. Barnes, PhD Officer, MTI Vice-President and Chief Marketing Officer of MTI. Her present business address is 30 South Pearl Street, Albany, New York 12207 James T. Bunch Officer, MTI Vice-President, Business Development of MTI. His present business address is 160 Spear Street, Suite 208, San Francisco, California, 94150 Dale Church Director, MTI Chief Executive Officer, Ventures and Solutions, LLC, and Trustee of National Defense Industrial Association. His present business address is Ventures and Solutions, LLC, 9 Franklin Street, Alexandria, Virginia, 22314 Edward A. Dohring Director, MTI Chairman, MTI Instruments, Inc Chairman of MTI Instruments, Inc., a majority owned subsidiary of MTI, and recently retired Vice President, Silicon Valley Group and President, SVG Lithography Systems. His present business address is 360 Beach Avenue, Rochester, New York, 14612 Alan P. Goldberg Director, MTI Director and Officer, FAC Director, President and Co-Chief Executive Officer of First Albany Companies, Inc. Director of MTI. His present business address is 30 South Pearl Street, Albany, New York, 12207 Name Occupation Catherine S. Hill, Esq. Officer, MTI Vice-President Corporate Development, MTI. Her present Business Address is 30 South Pearl Street, Albany, New York, 12207 E. Dennis O'Connor Director, MTI Retired Director of New Products and Technology, Masco Corporation. His present business address is 2266 Red Apple Road, Manistee, Michigan, 49660 Walter L. Robb, PhD. Director, MTI President and Management Consultant, Vantage Management, Inc. Director of Plug Power, Inc. His present business address is Vantage Management, Inc., 3000 Troy-Schenectady Road, Niskayuna, New York, 12309 Dr. Beno Sternlicht, PhD. Director, MTI President, Benjosh Management Corporation and President, Arben International. His present business address is 123 Partridge Run, Schenectady, New York, 12309 Cynthia Scheuer Officer, MTI Vice President and Chief Financial officer of Mechanical Technology, Incorporated. Her present business address is 30 South Pearl Street, Albany, New York, 12207 Daniel V. McNamee III Director, FAC President of The Publishing & Media Group, a management consulting firm specializing in the media communications industry. His present business address is 475 Fifth Avenue, 19th Floor, New York, New York, 10017 J. Anthony Boeckh, Ph.D Director, FAC Chairman and Chief Executive Officer of BCA Publications Ltd., Montreal, Canada, and Editor-in-Chief of The Bank Credit Analyst. He is also a principal of Greydanus, Boeckh and Associates, Inc., Montreal, Canada, a fixed income specialty manager. His present business address is BCA Publications
Ltd., 1002 Sherbrooke St. West, Ste. 1600, Montreal, Canada, H3A 3L6 Name Occupation Peter Barton Director, FAC President, Barton and Associates, a private a private investment firm specializing in technology and software. His present business address is 5445 DCT Parkway, Suite 600, Englewood, Colorado 80111 Walter Fiederowicz Director, FAC Private investor and consultant. His present business address is 39 Painter Hill Road, Woodbury, Connecticut 06798 Hugh A. Johnson, Jr. Director and Officer, FAC Director, Senior Vice President and Chief Investment Officer of First Albany Companies, Inc., First Albany Corporation, and Chairman of First Albany Asset Management Corporation. His present business address is 30 South Pearl Street, Albany, New York, 12207 Benaree P. Wiley Director, FAC President and Chief Executive Officer of The Partnership, a Boston-based organization founded by business and civic leaders to promote the development of professionals of color through access to corporate, municipal and state leaders. Her present business address is 334 Boylston Street, Suite
400, Boston, Massachusetts, 02116 Charles L. Schwager Director, FAC Consultant to Loanet, Inc., a provider of on-line, real time accounting services to support financial institutions engaged in the business of borrowing and lending securities. His principal business address is 12B Manor Parkway, Salem, New Hampshire, 03079 Stephen P. Wink Officer, FAC Secretary and General Counsel of FAC and Sr. Vice President, General Counsel and Secretary of First Albany Corporation. His present business address is 30 South Pearl Street, Albany, New York, 12207 Steven R. Jenkins Officer, FAC Chief Financial Officer of FAC, and Senior Vice President of First Albany Corporation. His present business address is 30 South Pearl Street, Albany, New York, 12207 EXHIBIT 4 VOTING AGREEMENT Agreement made as of this 4th day of October, 2000 by and among (i) Catherine S. Hill (the "Stockholder") and (ii) Mechanical Technology, Inc., a New York corporation (the "Investor"). WHEREAS, the Stockholder owns one thousand (1,000) shares of common stock, par value $0.01 per share ("Common Stock"), of Plug Power, Inc. a Delaware corporation (the "Company"); WHEREAS, the Stockholder has agreed to grant the Investor a proxy to vote certain of the shares of Common Stock owned by the Stockholder in accordance with, and subject to, the terms and provisions of this Agreement; WHEREAS, the parties hereto desire to promote their mutual interests and the interests of the Company by providing in this Agreement for the terms and conditions with respect to the voting of certain shares of Common Stock owned by the Stockholder. NOW, THEREFORE, in consideration of these premises and of the stipulations hereinafter recited, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: By his execution hereof, the Stockholder hereby grants to the Investor an irrevocable proxy until termination in accordance with Section 3.1 hereof to vote one thousand (1,000) shares of the Common Stock of the Company owned by the Stockholder
(the "Shares") or to execute and deliver written consents on all matters submitted to the stockholders of the Company with respect to such number of Shares in such manner as the Investor in its sole discretion shall determine. The Stockholder hereby
acknowledges that this proxy is irrevocable and is coupled with an interest. The Investor shall have full power and authority to do and perform each and every act and thing whether necessary or desirable to be done, as fully as the Stockholder might or
could do if personally present at a stockholders' meeting or personally providing or withholding such consent. The Investor is authorized to vote or act in person or by proxy at any and all regular and special meetings of the stockholders of the Company
for whatever purpose called or held, or in connection with any proceedings wherein the vote or written consent of the stockholders may be required or authorized. The Stockholder hereby acknowledges the receipt of good and valuable consideration for the
proxy and as such the proxy is coupled with an interest and will not be revocable or revoked by him or her during the term of this Agreement. This Agreement shall only affect the Stockholder's right to vote the Shares at a special or annual meeting of the Company or consent to proposals otherwise presented to stockholders of the Company. Nothing herein shall restrict the Stockholder
from exercising all other rights of beneficial ownership, including the right (i) to receive payments of dividends or other distributions from the Company with respect to the Shares, or (ii) to assign, pledge, encumber, give or otherwise transfer any of
the Shares to any person or grant to any person any option, warrant or other right to acquire any of the Shares, provided that the transferee executes a proxy in favor of the Investor substantially similar to this Agreement. The Stockholder covenants and agrees that, on any proposal upon which the Investor is empowered to vote Shares pursuant hereto, whether at a meeting of stockholders or by written consent, such voting will be as fully effective as if such votes had
been cast by the Stockholder without regard hereto. The Stockholder hereby represents and warrants to the Company and to the Investor as follows: (a) Absence of Violation. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of, or default under, or conflict with, or require any
consent under any term or provision of any contract, commitment, indenture, lease or other agreement to which the Stockholder is a party or by which the Stockholder or any of his assets is bound. The Stockholder shall not enter into an contract,
commitment, indenture, lease or other agreement, written or oral, in conflict herewith or grant or commit to grant any proxy, written or oral, with respect to the Shares. (b) Binding Obligation. This Agreement constitutes a valid and binding obligation of the Stockholder, enforceable in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy,
insolvency and similar laws affecting the rights and remedies of creditors generally, and by general principals of equity and public policy. (c) Title to Shares of Common Stock. The Stockholder is the record and beneficial holder (free and clear of any encumbrances or otherwise) of the Shares.
This Agreement shall remain in full force and effect until terminated upon the earlier to occur of (i) the closing of the sale of the Company by stock purchase, exchange, merger or the sale of all or substantially all of the Company's assets, (ii) the dissolution and liquidation of the Company, or (iii) the written agreement of the Investor and the Stockholder.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral.
All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Stockholder: Catherine S. Hill
5 Beaver Pond Road
Loudonville, NY 12211
If to the Investor: Mechanical Technology Incorporated
30 South Pearl Street
Albany, NY 12207
All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of delivery thereof to the receiving party at the address of such party set forth above, (ii) if made by telex, telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iv) if sent by registered or certified mail, on the fifth business day following the day such mailing is made.
In the event that any court having jurisdiction shall determine that any provision contained in this Agreement shall be unreasonable or unenforceable in any respect, then such covenant or other provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such covenant or other provision wholly unenforceable, the remaining covenants and other provisions of this Agreement shall nevertheless remain in full force and effect.
Each of the parties hereto shall execute such documents and take such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement and the transactions contemplated hereby.
This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto. In particular, the Investor's right to vote or grant a consent with respect to the Shares subject to the proxy granted hereunder shall be personal to the Investor, and the Investor shall not transfer, assign, or grant to any other person, nor shall the Investor substitute another person for the Investor to exercise, the Investor's rights to vote or grant a consent with respect to the Shares under such proxy without the Stockholder's written consent.
This Agreement shall be binding upon and inure to the benefit of the heirs, legatees and devisees, executors, administrators, legal representatives, successors and assigns of the Stockholder and the Investor.
This Agreement may not be amended or modified except by an instrument in writing signed by the parties hereto. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to the conflict of law principles thereof.
This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed and delivered under seal as of the date first written above.
INVESTOR
MECHANICAL TECHNOLOGY, INC.
By:s/Cynthia A. Scheuer____________________
Name: Cynthia A. Scheuer
Title: Vice President and Chief Financial Officer
STOCKHOLDER
s/Catherine S. Hill_________________________
Catherine S. Hill
TRADOCS:1369669.1(TC%D01!.DOC)
EXHIBIT 5
VOTING AGREEMENT
Agreement made as of this 4th day of October, 2000 by and among (i) James T. Bunch (the "Stockholder") and (ii) Mechanical Technology, Inc., a New York corporation (the "Investor").
WHEREAS, the Stockholder owns two hundred (200) shares of common stock, par value $0.01 per share ("Common Stock"), of Plug Power, Inc. a Delaware corporation (the "Company");
WHEREAS, the Stockholder has agreed to grant the Investor a proxy to vote certain of the shares of Common Stock owned by the Stockholder in accordance with, and subject to, the terms and provisions of this Agreement;
WHEREAS, the parties hereto desire to promote their mutual interests and the interests of the Company by providing in this Agreement for the terms and conditions with respect to the voting of certain shares of Common Stock owned by the Stockholder.
NOW, THEREFORE, in consideration of these premises and of the stipulations hereinafter recited, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
By his execution hereof, the Stockholder hereby grants to the Investor an irrevocable proxy until termination in accordance with Section 3.1 hereof to vote two hundred (200) shares of the Common Stock of the Company owned by the Stockholder (the "Shares") or to execute and deliver written consents on all matters submitted to the stockholders of the Company with respect to such number of Shares in such manner as the Investor in its sole discretion shall determine. The Stockholder hereby acknowledges that this proxy is irrevocable and is coupled with an interest. The Investor shall have full power and authority to do and perform each and every act and thing whether necessary or desirable to be done, as fully as the Stockholder might or could do if personally present at a stockholders' meeting or personally providing or withholding such consent. The Investor is authorized to vote or act in person or by proxy at any and all regular and special meetings of the stockholders of the Company for whatever purpose called or held, or in connection with any proceedings wherein the vote or written consent of the stockholders may be required or authorized. The Stockholder hereby acknowledges the receipt of good and valuable consideration for the proxy and as such the proxy is coupled with an interest and will not be revocable or revoked by him or her during the term of this Agreement.
This Agreement shall only affect the Stockholder's right to vote the Shares at a special or annual meeting of the Company or consent to proposals otherwise presented to stockholders of the Company. Nothing herein shall restrict the Stockholder from exercising all other rights of beneficial ownership, including the right (i) to receive payments of dividends or other distributions from the Company with respect to the Shares, or (ii) to assign, pledge, encumber, give or otherwise transfer any of the Shares to any person or grant to any person any option, warrant or other right to acquire any of the Shares, provided that the transferee executes a proxy in favor of the Investor substantially similar to this Agreement.
The Stockholder covenants and agrees that, on any proposal upon which the Investor is empowered to vote Shares pursuant hereto, whether at a meeting of stockholders or by written consent, such voting will be as fully effective as if such votes had been cast by the Stockholder without regard hereto.
The Stockholder hereby represents and warrants to the Company and to the Investor as follows:
(a) Absence of Violation. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of, or default under, or conflict with, or require any consent under any term or provision of any contract, commitment, indenture, lease or other agreement to which the Stockholder is a party or by which the Stockholder or any of his assets is bound. The Stockholder shall not enter into an contract, commitment, indenture, lease or other agreement, written or oral, in conflict herewith or grant or commit to grant any proxy, written or oral, with respect to the Shares.
(b) Binding Obligation. This Agreement constitutes a valid and binding obligation of the Stockholder, enforceable in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency and similar laws affecting the rights and remedies of creditors generally, and by general principals of equity and public policy.
(c) Title to Shares of Common Stock. The Stockholder is the record and beneficial holder (free and clear of any encumbrances or otherwise) of the Shares.
This Agreement shall remain in full force and effect until terminated upon the earlier to occur of (i) the closing of the sale of the Company by stock purchase, exchange, merger or the sale of all or substantially all of the Company's assets, (ii) the dissolution and liquidation of the Company, or (iii) the written agreement of the Investor and the Stockholder.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral.
All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Stockholder: James T. Bunch
160 Spear Street
Suite 208
San Francisco, CA 94105
If to the Investor: Mechanical Technology Incorporated
30 South Pearl Street
Albany, NY 12207
All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of delivery thereof to the receiving party at the address of such party set forth above, (ii) if made by telex, telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iv) if sent by registered or certified mail, on the fifth business day following the day such mailing is made.
In the event that any court having jurisdiction shall determine that any provision contained in this Agreement shall be unreasonable or unenforceable in any respect, then such covenant or other provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such covenant or other provision wholly unenforceable, the remaining covenants and other provisions of this Agreement shall nevertheless remain in full force and effect.
Each of the parties hereto shall execute such documents and take such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement and the transactions contemplated hereby.
This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto. In particular, the Investor's right to vote or grant a consent with respect to the Shares subject to the proxy granted hereunder shall be personal to the Investor, and the Investor shall not transfer, assign, or grant to any other person, nor shall the Investor substitute another person for the Investor to exercise, the Investor's rights to vote or grant a consent with respect to the Shares under such proxy without the Stockholder's written consent.
This Agreement shall be binding upon and inure to the benefit of the heirs, legatees and devisees, executors, administrators, legal representatives, successors and assigns of the Stockholder and the Investor.
This Agreement may not be amended or modified except by an instrument in writing signed by the parties hereto. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to the conflict of law principles thereof.
This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed and delivered under seal as of the date first written above.
INVESTOR
MECHANICAL TECHNOLOGY, INC.
By:s/Cynthia A. Scheuer__________________
Name: Cynthia A. Scheuer
Title: Vice President and Chief Financial Officer
STOCKHOLDER
s/James T. Bunch__________________
James T. Bunch
EXHIBIT 6
VOTING AGREEMENT
Agreement made as of this 4th day of October, 2000 by and among (i) William P. Acker (the "Stockholder") and (ii) Mechanical Technology, Inc., a New York corporation (the "Investor").
WHEREAS, the Stockholder owns one thousand (1,000) shares of common stock, par value $0.01 per share ("Common Stock"), of Plug Power, Inc. a Delaware corporation (the "Company");
WHEREAS, the Stockholder has agreed to grant the Investor a proxy to vote certain of the shares of Common Stock owned by the Stockholder in accordance with, and subject to, the terms and provisions of this Agreement;
WHEREAS, the parties hereto desire to promote their mutual interests and the interests of the Company by providing in this Agreement for the terms and conditions with respect to the voting of certain shares of Common Stock owned by the Stockholder.
NOW, THEREFORE, in consideration of these premises and of the stipulations hereinafter recited, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
By his execution hereof, the Stockholder hereby grants to the Investor an irrevocable proxy until termination in accordance with Section 3.1 hereof to vote one thousand (1,000) shares of the Common Stock of the Company owned by the Stockholder (the "Shares") or to execute and deliver written consents on all matters submitted to the stockholders of the Company with respect to such number of Shares in such manner as the Investor in its sole discretion shall determine. The Stockholder hereby acknowledges that this proxy is irrevocable and is coupled with an interest. The Investor shall have full power and authority to do and perform each and every act and thing whether necessary or desirable to be done, as fully as the Stockholder might or could do if personally present at a stockholders' meeting or personally providing or withholding such consent. The Investor is authorized to vote or act in person or by proxy at any and all regular and special meetings of the stockholders of the Company for whatever purpose called or held, or in connection with any proceedings wherein the vote or written consent of the stockholders may be required or authorized. The Stockholder hereby acknowledges the receipt of good and valuable consideration for the proxy and as such the proxy is coupled with an interest and will not be revocable or revoked by him or her during the term of this Agreement.
This Agreement shall only affect the Stockholder's right to vote the Shares at a special or annual meeting of the Company or consent to proposals otherwise presented to stockholders of the Company. Nothing herein shall restrict the Stockholder from exercising all other rights of beneficial ownership, including the right (i) to receive payments of dividends or other distributions from the Company with respect to the Shares, or (ii) to assign, pledge, encumber, give or otherwise transfer any of the Shares to any person or grant to any person any option, warrant or other right to acquire any of the Shares, provided that the transferee executes a proxy in favor of the Investor substantially similar to this Agreement.
The Stockholder covenants and agrees that, on any proposal upon which the Investor is empowered to vote Shares pursuant hereto, whether at a meeting of stockholders or by written consent, such voting will be as fully effective as if such votes had been cast by the Stockholder without regard hereto.
The Stockholder hereby represents and warrants to the Company and to the Investor as follows:
(a) Absence of Violation. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of, or default under, or conflict with, or require any consent under any term or provision of any contract, commitment, indenture, lease or other agreement to which the Stockholder is a party or by which the Stockholder or any of his assets is bound. The Stockholder shall not enter into an contract, commitment, indenture, lease or other agreement, written or oral, in conflict herewith or grant or commit to grant any proxy, written or oral, with respect to the Shares.
(b) Binding Obligation. This Agreement constitutes a valid and binding obligation of the Stockholder, enforceable in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency and similar laws affecting the rights and remedies of creditors generally, and by general principals of equity and public policy.
(c) Title to Shares of Common Stock. The Stockholder is the record and beneficial holder (free and clear of any encumbrances or otherwise) of the Shares.
This Agreement shall remain in full force and effect until terminated upon the earlier to occur of (i) the closing of the sale of the Company by stock purchase, exchange, merger or the sale of all or substantially all of the Company's assets, (ii) the dissolution and liquidation of the Company, or (iii) the written agreement of the Investor and the Stockholder.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral.
All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Stockholder: William P. Acker
5 Willow Spring Drive
Rexford, NY 12148
If to the Investor: Mechanical Technology Incorporated
30 South Pearl Street
Albany, NY 12207
All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of delivery thereof to the receiving party at the address of such party set forth above, (ii) if made by telex, telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iv) if sent by registered or certified mail, on the fifth business day following the day such mailing is made.
In the event that any court having jurisdiction shall determine that any provision contained in this Agreement shall be unreasonable or unenforceable in any respect, then such covenant or other provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such covenant or other provision wholly unenforceable, the remaining covenants and other provisions of this Agreement shall nevertheless remain in full force and effect.
Each of the parties hereto shall execute such documents and take such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement and the transactions contemplated hereby.
This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto. In particular, the Investor's right to vote or grant a consent with respect to the Shares subject to the proxy granted hereunder shall be personal to the Investor, and the Investor shall not transfer, assign, or grant to any other person, nor shall the Investor substitute another person for the Investor to exercise, the Investor's rights to vote or grant a consent with respect to the Shares under such proxy without the Stockholder's written consent.
This Agreement shall be binding upon and inure to the benefit of the heirs, legatees and devisees, executors, administrators, legal representatives, successors and assigns of the Stockholder and the Investor.
This Agreement may not be amended or modified except by an instrument in writing signed by the parties hereto. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to the conflict of law principles thereof.
This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed and delivered under seal as of the date first written above.
INVESTOR
MECHANICAL TECHNOLOGY, INC.
By:s/Cynthia A. Scheuer
Name: Cynthia A. Scheuer
Title: Vice President and Chief Financial Officer
STOCKHOLDER
s/William P. Acker
William P. Acker
TRADOCS:1369669.1(TC%D01!.DOC)
EXHIBIT 7
VOTING AGREEMENT
Agreement made as of this 4th day of October, 2000 by and among (i) Cynthia A. Scheuer (the "Stockholder") and (ii) Mechanical Technology, Inc., a New York corporation (the "Investor").
WHEREAS, the Stockholder owns five hundred (500) shares of common stock, par value $0.01 per share ("Common Stock"), of Plug Power, Inc. a Delaware corporation (the "Company");
WHEREAS, the Stockholder has agreed to grant the Investor a proxy to vote certain of the shares of Common Stock owned by the Stockholder in accordance with, and subject to, the terms and provisions of this Agreement;
WHEREAS, the parties hereto desire to promote their mutual interests and the interests of the Company by providing in this Agreement for the terms and conditions with respect to the voting of certain shares of Common Stock owned by the Stockholder.
NOW, THEREFORE, in consideration of these premises and of the stipulations hereinafter recited, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
By his execution hereof, the Stockholder hereby grants to the Investor an irrevocable proxy until termination in accordance with Section 3.1 hereof to vote five hundred (500) shares of the Common Stock of the Company owned by the Stockholder (the "Shares") or to execute and deliver written consents on all matters submitted to the stockholders of the Company with respect to such number of Shares in such manner as the Investor in its sole discretion shall determine. The Stockholder hereby acknowledges that this proxy is irrevocable and is coupled with an interest. The Investor shall have full power and authority to do and perform each and every act and thing whether necessary or desirable to be done, as fully as the Stockholder might or could do if personally present at a stockholders' meeting or personally providing or withholding such consent. The Investor is authorized to vote or act in person or by proxy at any and all regular and special meetings of the stockholders of the Company for whatever purpose called or held, or in connection with any proceedings wherein the vote or written consent of the stockholders may be required or authorized. The Stockholder hereby acknowledges the receipt of good and valuable consideration for the proxy and as such the proxy is coupled with an interest and will not be revocable or revoked by him or her during the term of this Agreement.
This Agreement shall only affect the Stockholder's right to vote the Shares at a special or annual meeting of the Company or consent to proposals otherwise presented to stockholders of the Company. Nothing herein shall restrict the Stockholder from exercising all other rights of beneficial ownership, including the right (i) to receive payments of dividends or other distributions from the Company with respect to the Shares, or (ii) to assign, pledge, encumber, give or otherwise transfer any of the Shares to any person or grant to any person any option, warrant or other right to acquire any of the Shares, provided that the transferee executes a proxy in favor of the Investor substantially similar to this Agreement.
The Stockholder covenants and agrees that, on any proposal upon which the Investor is empowered to vote Shares pursuant hereto, whether at a meeting of stockholders or by written consent, such voting will be as fully effective as if such votes had been cast by the Stockholder without regard hereto.
The Stockholder hereby represents and warrants to the Company and to the Investor as follows:
(a) Absence of Violation. Neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will constitute a violation of, or default under, or conflict with, or require any consent under any term or provision of any contract, commitment, indenture, lease or other agreement to which the Stockholder is a party or by which the Stockholder or any of his assets is bound. The Stockholder shall not enter into an contract, commitment, indenture, lease or other agreement, written or oral, in conflict herewith or grant or commit to grant any proxy, written or oral, with respect to the Shares.
(b) Binding Obligation. This Agreement constitutes a valid and binding obligation of the Stockholder, enforceable in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency and similar laws affecting the rights and remedies of creditors generally, and by general principals of equity and public policy.
(c) Title to Shares of Common Stock. The Stockholder is the record and beneficial holder (free and clear of any encumbrances or otherwise) of the Shares.
This Agreement shall remain in full force and effect until terminated upon the earlier to occur of (i) the closing of the sale of the Company by stock purchase, exchange, merger or the sale of all or substantially all of the Company's assets, (ii) the dissolution and liquidation of the Company, or (iii) the written agreement of the Investor and the Stockholder.
This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral.
All notices, requests, consents and other communications hereunder shall be in writing, shall be addressed to the receiving party's address set forth below or to such other address as a party may designate by notice hereunder, and shall be either (i) delivered by hand, (ii) made by telex, telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.
If to the Stockholder: Cynthia Scheuer
2757 Doelner Circle
Castleton, NY 12033
If to the Investor: Mechanical Technology Incorported
30 South Pearl Street
Albany, NY 12207
All notices, requests, consents and other communications hereunder shall be deemed to have been given either (i) if by hand, at the time of delivery thereof to the receiving party at the address of such party set forth above, (ii) if made by telex, telecopy or facsimile transmission, at the time that receipt thereof has been acknowledged by electronic confirmation or otherwise, (iii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iv) if sent by registered or certified mail, on the fifth business day following the day such mailing is made.
In the event that any court having jurisdiction shall determine that any provision contained in this Agreement shall be unreasonable or unenforceable in any respect, then such covenant or other provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such covenant or other provision wholly unenforceable, the remaining covenants and other provisions of this Agreement shall nevertheless remain in full force and effect.
Each of the parties hereto shall execute such documents and take such further actions as may be reasonably required or desirable to carry out the provisions of this Agreement and the transactions contemplated hereby.
This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of the other parties hereto. In particular, the Investor's right to vote or grant a consent with respect to the Shares subject to the proxy granted hereunder shall be personal to the Investor, and the Investor shall not transfer, assign, or grant to any other person, nor shall the Investor substitute another person for the Investor to exercise, the Investor's rights to vote or grant a consent with respect to the Shares under such proxy without the Stockholder's written consent.
This Agreement shall be binding upon and inure to the benefit of the heirs, legatees and devisees, executors, administrators, legal representatives, successors and assigns of the Stockholder and the Investor.
This Agreement may not be amended or modified except by an instrument in writing signed by the parties hereto. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.
This Agreement shall be governed by, and construed in accordance with, the law of the State of New York, without giving effect to the conflict of law principles thereof.
This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed and delivered under seal as of the date first written above.
INVESTOR
MECHANICAL TECHNOLOGY, INC.
By:s/William P. Acker_______________________
Name: William P. Acker
Title: President
STOCKHOLDER
s/Cynthia A. Scheuer______________________
Cynthia A. Scheuer
TRADOCS:1369669.1(TC%D01!.DOC)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Plug Power, Inc.
(Name of Issuer)
Common Stock (par value $0.01 per share)
(Title of Class of Securities)
72919P103
(CUSIP Number)
Catherine S. Hill, Esq.
Mechanical Technology Incorporated
30 South Pearl Street
Albany, New York 12207
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
November 3, 1999
(Date of event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box:
Note: Six copies of this statement, including all exhibits, should be filed with the Commission.
See Rule 13d-1(a) for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
CUSIP No. 72919P103
S.S. or I.R.S. Identification No.
of Above Person
Mechanical Technology Incorporated
I.R.S. Identification No. 141462255
_____________________________________________________________________________
2 Check the Appropriate Box if (a) [ ]
a Member of a Group (b) [ ]
_____________________________________________________________________________
3 SEC Use Only
_____________________________________________________________________________
4 Source of Funds
OO
_____________________________________________________________________________
5 Check if Disclosure of Legal Proceedings
is Required Pursuant to Items 2(d) or 2(e) [ ]
_____________________________________________________________________________
6 Citizenship or Place of Organization
State of New York
_____________________________________________________________________________
7 Sole Voting Power 13,707,015
__________________________________________________
Number of Shares 8 Shared Voting Power 0
Beneficially Owned by __________________________________________________
Reporting Person With
9 Sole Dispositive Power 13,704,315
__________________________________________________
10 Shared Dispositive Power 0
__________________________________________________
11 Aggregate Amount Beneficially
Owned By Each Reporting Person 13,707,015
________________________________________________________________________
12 Check Box if the Aggregate Amount
in Row (11) Excludes Certain Shares [ ]
___________________________________________________________________________
13 Percent of Class Represented
Amount in Row (11) 31.40%
___________________________________________________________________________
14 Type of Reporting Person CO
Schedule 13D
Item 1. Security and Issuer.
The class of equity securities to which this statement on Schedule 13D relates is the common stock, par value $0.01 per share (the "Common Stock") of Plug Power Inc. ("Plug Power"), a Delaware Corporation with its principal office located at 968 Albany-Shaker Road, Latham, NY 12110.
Item 2. Identity and Background.
This statement is being filed by Mechanical Technology Incorporated, a New York Corporation ("MTI"). First Albany Companies, Inc., a New York corporation ("FAC") owns 33.55% percent of the outstanding shares of MTI, and accordingly, may control MTI. George McNamee ("McNamee") and Alan Goldberg ("Goldberg"; FAC, McNamee and Goldberg are collectively, the "Control Persons") are Co-Chief Executive Officers of FAC and therefore may control FAC. MTI is a manufacturer of advanced products that combine precision sensing capabilities with proprietary software to serve a variety of applications forMechanical Technology, Inc. develops and commercializes new energy technologies. The Company's wholly-owned subsidiary, MTI commercial and military aviation, computer equipment and energy conversion markets.Instruments, Inc., (MTII) manufactures precision, non-contact diagnostic and sensing instruments and computer-based balancing systems. The address of MTI's principal office and principal business is 968 Albany-Shaker Road, Latham, NY 12110.30 South Pearl Street, Albany, New York 12207.
FAC is a holding company that, through its principal wholly-owned subsidiary, First Albany Corporation ("First Albany") provides investment banking services to corporate and public clients, and engages in market-making and trading of corporate, government and municipal securities. First Albany also provides venture capital and merchant banking services to the investment and corporate communities. The address of FAC's principal office and principal business is 30 South Pearl Street, Albany, NY 12207.
McNamee is Chairman of the Board of Directors of Plug Power and Chairman of the Board of Directors and Chief Executive Officer of MTI. His principal occupation is as Co-Chief Executive Officer and Chairman of the Board of Directors of FAC. His business address is at FAC's principal offices at 30 South Pearl Street, Albany, NY 12207.
Goldberg is a Director of MTI. His principal occupation is as Co-Chief Executive Officer, Director and President of FAC. His business address is at FAC's principal offices at 30 South Pearl Street, Albany, NY 12207.
The name, business address and present principal occupation or employment of each executive officer and director (the "Executive Officers and Directors") of MTI and FAC are set forth in Exhibit 1, attached hereto and made a part hereof. Each of such individuals is a citizen of the United States of America, except for J. Anthony Boeckh, Ph.D., who is a citizen of Canada.
McNamee and Goldberg are each citizens of the United States of America.
During the past five years, neither MTI, FAC, McNamee, Goldberg nor any of the Executive Officers and Directors have been (a) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors), or (b) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities to, Federal or State Securities Laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds and Other Consideration.
MTI was a founding member of Plug Power, LLC, and has owned membership interests in Plug Power, LLC since June of 1997. On June 27, 1997, MTI contributed assets related to its fuel cell program, including intellectual property, 22 employees, equipment, and the right to receive government contracts for research and development of PEM fuel cell systems, if awarded, in exchange for 4,750,000 membership interests. On June 11, 1998, MTI contributed a below market value lease to Plug Power, LLC in exchange for 2,000,000 membership interests. On June 15, 1998, August 20, 1998, October 6, 1998, October 23, 1998, November 9, 1998, November 30, 1998, December 21, 1998, January 11, 1999, February 1, 1999 and February 15, 1999, MTI contributed a total of $5,000,000 in cash, notes and receivables to Plug Power, LLC in exchange for a total of 1,000,000 membership interests. On January 26, 1999, MTI received 2,250,000 membership interests in Plug Power, LLC as payment of a deferred purchase price based on the number of government contracts awarded to Plug Power prior to April 1, 1999. On June 30, 1999, MTI received 704,315 Plug Power, LLC membership interests in exchange for conveying a 35-acre parcel of land with three office buildings and a house (the "Plug Campus") to Plug Power, LLC. In that transaction, Plug Power, LLC also assumed approximately $6,200,000 in pre-existing debt on the Plug Campus. On September 30, 1999, MTI received 266,667 Plug Power membership interests in exchange for $2,000,000 in cash. On November 1, 1999, MTI received 2,733,333 Plug Power membership interests in exchange for $20,500,000 in cash which was financed from loan proceeds under a credit agreement (as restated and amended) from KeyBank, N.A. (the "Credit Agreement"). Under the Credit Agreement MTI's shares of Common Stock owned by MTI have been pledged as collateral. Plug Power became a section 12(b) reporting company as of October 28, 1999, the effective date of their registration statement.
Item 4. Purpose of Transaction.
The business conducted by the Issuer was initially developed by MTI prior to June, 1997, and was contributed to Plug Power, LLC (the predecessor of the Company) in exchange for equity interests. Based upon the historical development of business of the Issuer; the significant continuous equity ownership by MTI of Plug Power, LLC and the Issuer (as of December 7, 2000, MTI was the beneficial owner of 13,707,015 shares of Common Stock (or 31.4%) of the Issuer); the representation by officers and directors of MTI on the Board of Directors of the Issuer (as of December 7, 2000, 2 directors of MTI serve on the Board of Directors, one of which is the Chairman of the Board of Directors, and Chief Executive Officer of MTI serves as Chairman of the Board of Directors of the Issuer); and the participation of the Chairman of the Board of Directors (and, from time to time, other directors) of MTI in the business affairs of the Issuer, MTI has exercised, and continues to have the power to exercise a controlling influence over the management or policies of the Issuer.
From time to time, MTI has engaged in discussions with Plug Power, its officers and directors and other significant shareholders relating to Plug Power's policies, management, directors, business, operations, financial condition, strategies and other developments, and MTI intends to engage in such discussions in the future. From time to time, MTI may buy or sell additional shares of Plug Power Common Stock on the open market, in private negotiated transactions, or otherwise.
In addition to the foregoing, as significant shareholders of Plug Power and through any of its representatives that may be members of Plug Power's Board of Directors, MTI may consider, from time to time, (i) the acquisition of additional securities of the Issuer, or the disposition of securities of the Issuer, (ii) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Issuer or any of its subsidiaries, (iii) a sale or transfer of a material amount of the assets of the Issuer or any of its subsidiaries, (iv) any change in the present board of directors or management of the Issuer, (v) any material change in the present capitalization or dividend policy of the Issuer, (vi) any other material change in the Issuer's business or corporate structure, (vii) changes in the Issuer's charter, bylaws, or instruments corresponding thereto or other actions which may impede the acquisition of control of the Issuer by any person; (viii) causing a class of securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted on an inter-dealer quotation system of a registered national securities association, (ix) causing a class of equity securities of the Issuer to become eligible for termination of a registration pursuant to Section 12(g)(4) of the Exchange Act, or (x) any action similar to any of those enumerated above.
Item 5. Interest in Securities of the Issuer.
As of December 7, 2000:
(a) MTI is the direct and beneficial owner of 13,707,015 shares of Plug Power Common Stock, representing 31.40% of the Common Stock outstanding. Mr. McNamee is the beneficial owner of 10,000 shares of Common Stock. In addition, Mr. Robb is the beneficial owner of an additional 10,000 shares of Common Stock.
(b) MTI has the sole power to vote 13,707,015 shares of Plug Power Common Stock, which includes 13,704,315 shares over which it has sole dispositive power. In addition, Mr. McNamee has sole power to vote 10,000 shares of Plug Power Common Stock and Mr. Robb has the sole power to vote an additional 10,000 shares of Plug Power Common Stock.
(c) During the past sixty (60) days neither MTI nor any Control Person has purchased any shares of Plug Power Common Stock.
(d) Catherine S. Hill ("Hill"), James T. Bunch ("Bunch"), William P. Acker ("Acker") and Cynthia A. Scheuer ("Scheuer") have the right to receive dividends from, or the proceeds from the sale of, the securities subject to voting agreements as set forth in Item 6. The aggregate number of shares of Common Stock subject to these voting agreements is not equal to 5 percent.
(e) Not applicable.
Item 6. Contracts, Agreements, Understandings or Relationships with Respect to Securities of the Issuer.
Under the Credit Agreement with Key Bank, N.A., as amended and restated, MTI's shares of Plug Power Common Stock have been pledged as collateral.
On October 4, 2000, MTI entered into voting agreements with each of Catherine Hill, Bunch, Acker and Scheuer, pursuant to which Hill, Bunch, Acker and Scheuer granted to MTI irrevocable proxies to vote an aggregate of 2,700 shares.
Item 7. Material to be filed as Exhibits.
Exhibit 1: Information with Respect to Directors and Executive Officers of Mechanical Technology Incorporated and First Albany Companies, Inc.
Exhibit 2: The Credit Agreement, as amended and restated, between MTI and KeyBank, N.A. dated November 1, 1999.(a)
Exhibit 3: The Stock Pledge Agreement between MTI and KeyBank, N.A. dated November 1, 1999. (b)
Exhibit 4:Voting Agreement, dated as of October 4, 2000, by and among Catherine S. Hill and MTI.
Exhibit 5:Voting Agreement, dated as of October 4, 2000, by and among James T. Bunch and MTI.
Exhibit 6:Voting Agreement, dated as of October 4, 2000, by and among William P. Acker and MTI.
Exhibit 7:Voting Agreement, dated as of October 4, 2000, by and among Cynthia A. Scheuer and MTI.
__________________________________________
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, the undersigned certifies that the information set forth in this statement is true, correct and complete.
Dated: December 11, 2000
Mechanical Technology Incorporated
s/Cynthia A. Scheuer
By: Cynthia A. Scheuer