SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
H Power Corp.
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(Name of Issuer)
Common Stock, par value $.001 per share
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(Title of Class of Securities)
40427A108
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(CUSIP number)
Plug Power Inc.
Attn: Ana-Maria Galeano
968 Albany-Shaker Road
Latham, NY 12110
(518) 782-7700
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(Name, address and telephone number of person authorized to receive notices and
communications)
November 11, 2002
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(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box
[_].
Note. Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
(Continued on the following pages)
(Page 1 of 9 Pages)
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*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 or otherwise subject to the liabilities of that section of the Act but
shall be subject to all other provisions of the Act.
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CUSIP NO. 40427A108 13D Page 2 of 9 Pages
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NAMES OF REPORTING PERSONS
1 I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY).
Plug Power Inc.
22-3672377
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [_]
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SEC USE ONLY
3
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SOURCE OF FUNDS*
4
Not Applicable
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
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SOLE VOTING POWER
7
NUMBER OF See response to Item 5
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY See response to Item 5
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EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
0
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
See response to Item 5
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CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [_]
12
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
12.2%
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TYPE OF REPORTING PERSON*
14
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP NO. 40427A108 13D Page 3 of 9 Pages
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ITEM 1. Security and Issuer.
The class of equity security to which this statement on Schedule 13D
(the "Schedule 13D") relates is the common stock, par value $.001 per share (the
"Common Stock"), of H Power Corp., a Delaware corporation (the "Company"). The
Company's principal executive offices are located at 60 Montgomery Street,
Belleville, NJ 07109.
This filing of the Schedule 13D is not, and should not be deemed to be,
an admission that the Schedule 13D or that any amendment thereto is required to
be filed.
ITEM 2. Identity and Background.
(a), (b) and (c) This statement is filed by Plug Power Inc., a Delaware
corporation with its principal place of business and executive office at 968
Albany-Shaker Rd., Latham, NY 12110 ("Plug Power").
Attached hereto as Schedule I is a list of the directors and executive
officers of Plug Power which contains the following information with respect to
each such person:
(i) name;
(ii) business address; and
(iii) present principal occupation or employment and the name, principal
business and address of any corporation or other organization in which such
employment is conducted.
(d) and (e) During the past five years or since its inception, neither
Plug Power nor, to the knowledge of Plug Power, any executive officer or
director of Plug Power, has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or was a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction, which
resulted in Plug Power or any executive officer or director of Plug Power being
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
(f) To the knowledge of Plug Power, each person identified in
Schedule I hereto is a United States citizen, except for J. Douglas Grant who is
a citizen of Canada.
ITEM 3. Source and Amount of Funds or Other Consideration.
As described in Items 4 and 5 below, Plug Power has been given a proxy
with respect to, but has not purchased, shares of Common Stock of the Company.
Plug Power has not expended any funds in connection therewith.
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CUSIP NO. 40427A108 13D Page 4 of 9 Pages
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ITEM 4. Purpose of Transactions.
(a) and (b) On November 11, 2002, Plug Power entered into an Agreement
and Plan of Merger (the "Merger Agreement") with Monmouth Acquisition Corp., a
Delaware corporation and a wholly-owned subsidiary of Plug Power ("MergerCo")
and the Company pursuant to which, MergerCo will be merged with and into the
Company (the "Merger"). Under the terms of the Merger Agreement, Plug Power will
acquire the Company in a stock-for-stock exchange valued at approximately $50.7
million. The exchange ratio is initially set at approximately eight-tenths of a
share of Plug Power for each Company share. Based on this initial exchange
ratio, shareholders of the Company would receive shares of common stock of Plug
Power equaling approximately $4.70 per share for each share of the Company. The
initial exchange ratio will vary within upper and lower bounds of 10% in the
event that the value of Plug Power common stock during a defined pre-closing
period varies by more than 10% from $5.88 per share. In addition, the value to
be paid will vary depending on the amount of the Company's cash, assets and
liabilities at the closing date. The Merger is subject to customary closing
conditions and regulatory approvals, as well as the approval of the stockholders
of Plug Power and the Company.
In connection with the Merger Agreement, Plug Power entered into voting
agreements (the "Voting Agreements") with Dr. H. Frank Gibbard, Dr. Arthur
Kaufman and ECO Fuel Cells, LLC, (collectively, the "Stockholders"). Pursuant to
the Voting Agreements, each of the Stockholders agreed to vote and has granted
to Plug Power an irrevocable proxy and power of attorney to vote his or its
shares of common stock of the Company owned as of November 11, 2002 and acquired
thereafter (the "Shares") (i) in favor of approval of the Merger Agreement and
the Merger and any matter necessary for consummation of the Merger; (ii) against
(x) approval of any Acquisition Proposal (including, without limitation, any
Superior Proposal) (y) any proposal for any action or agreement that would
result in a breach of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or which could
result in any of the conditions of the Company's obligations under the Merger
Agreement not being fulfilled, and (z) any action which could reasonably be
expected to impede, interfere with, delay, postpone or materially adversely
affect consummation of the transactions contemplated by the Merger Agreement;
and (iii) in favor of any other matter necessary for consummation of the
transactions contemplated by the Merger Agreement which is considered at any
such meeting of stockholders or in such consent, and in connection therewith to
execute any documents which are necessary or appropriate in order to effectuate
the foregoing or, at the request of Plug Power, to permit Plug Power to vote
such Shares directly. The term "Acquisition Proposal" shall mean any proposed or
actual tender offer, merger, consolidation or other business combination
involving the Company, or sale, lease or other disposition, directly or
indirectly, by merger, consolidation, share exchange or otherwise, of any
material assets of the Company or the Company Subsidiaries or any securities of
the Company or the Company Subsidiaries, or any transaction which is similar in
form, substance or purpose to any of the foregoing transactions; provided,
however, that the term "Acquisition Proposal" shall not include the Merger and
related transactions. The term "Superior Proposal" shall mean an unsolicited,
bona fide written offer made by a third party to consummate an Acquisition
Proposal, which Acquisition Proposal is likely to be consummated, and that (i)
the board of directors of the Company determines in good faith, after
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CUSIP NO. 40427A108 13D Page 5 of 9 Pages
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consulting with its outside legal counsel and its financial advisor, would, if
consummated, result in a transaction that is more favorable to the stockholders
of the Company than the Merger and related transactions (taking into account all
legal, financial, regulatory and other aspects of the proposal and the person
making the proposal), and (ii) is for one hundred percent (100%) of the Common
Stock of the Company.
The purpose of the transactions contemplated by the Voting Agreements
is to consummate the transactions contemplated under the Merger Agreement.
(c) Not applicable.
(d) If the Merger is consummated, in accordance with the terms of the
Merger Agreement, the directors of MergerCo immediately prior to the effective
time of the Merger shall be the directors of the Company immediately after the
effective time of the Merger until their successors shall have been duly elected
or appointed and qualified or until their earlier death, resignation or removal.
The officers of MergerCo immediately prior to the effective time of the Merger
shall be the officers of the Company immediately after the effective time of the
Merger until their successors shall have been duly elected or appointed and
qualified or until their earlier death, resignation or removal.
(e) Other than as a result of the Merger described in Item 4(a) above,
not applicable.
(f) Not applicable.
(g) If the Merger is consummated, in accordance with the terms of the
Merger Agreement, at the effective time of the Merger, the certificate of
incorporation of the Company shall be amended in its entirety to read as the
articles of incorporation of MergerCo (except that the name of the Company will
remain H Power Corp.) and such articles of incorporation shall be the articles
of incorporation of the Company until thereafter amended as provided therein or
by applicable law. If the Merger is consummated, in accordance with the terms of
the Merger Agreement, at the effective time of the Merger, the bylaws of
MergerCo, as in effect at the effective time of the Merger, shall be the bylaws
of the Company until thereafter amended as provided therein or by applicable
law.
(h) and (i) As a result of the Merger, Plug Power expects that the
Company will request that its Common Stock be delisted from The Nasdaq National
Market and that the Company will file a Form 15 terminating registration of the
Common Stock pursuant to the Securities Exchange Act of 1934, as amended.
(j) Except as set forth above or in Item 5, Plug Power currently does
not have any plans or proposals concerning the Company with respect to the
matters set forth in subparagraphs (a) through (j) of Item 4 of this Schedule.
References to, and descriptions of, the Merger, the Merger Agreement
and the Voting Agreements as set forth herein are qualified in their entirety by
reference to the copies of the Merger Agreement and the form of voting agreement
included as Exhibits 99.1 and 99.2,
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CUSIP NO. 40427A108 13D Page 6 of 9 Pages
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respectively, to this Schedule 13D, and such agreements are incorporated herein
in their entirety where such references and descriptions appear.
ITEM 5. Interest in Securities of the Issuer.
(a) and (b) As a result of the Voting Agreements, Plug Power may be
deemed to have sole power to control the vote of the Shares on the matters
related to the Merger. Plug Power has no voting power with respect to any other
matters. More specifically, pursuant to the Voting Agreements, Plug Power has
the sole power to vote, and may be deemed to be the beneficial owner of an
aggregate of 1,339,035 shares of the Common Stock of the Company, representing
approximately 12.2% of the outstanding shares of the Common Stock of the Company
outstanding (including any stock options of the Stockholders which may be
exercisable within 60 days of the date hereof). This percentage is based upon
10,776,548 outstanding shares of the Company's Common Stock as listed in the
Company's capitalization representation and warranty set forth in the Merger
Agreement. Plug Power has no power to dispose of the Shares.
(c) Neither Plug Power nor, to the knowledge of Plug Power, any person
named in Schedule I hereto has effected any transactions in the Company's Common
Stock in the past sixty (60) days.
(d) To Plug Power's knowledge, each Stockholder has the right to
receive or the power to direct the receipt of dividends from or the proceeds
from the sale of, the Shares owned by them. To Plug Power's knowledge, other
than ECO Fuel Cells, LLC, which owns 8.8%, no other Stockholder owns more than
5% of the Company's Common Stock.
(e) Not applicable.
ITEM 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The description of the Merger Agreement, the Merger and the Voting
Agreements in Items 4 and 5 above are incorporated herein by reference. Other
than the Merger Agreement and the Voting Agreements, to the best knowledge of
Plug Power, there are no contracts, arrangements, understandings or
relationships (legal or otherwise) among the persons or entities referenced in
Item 2 or between such persons or entities and any other person or entity with
respect to the securities of the Company, including but not limited to transfer
or voting of any of the securities, finder's fees, joint ventures, loan or
option arrangements, puts or calls, guarantees or profits, divisions of profits
or loss, or the giving or withholding of proxies.
ITEM 7. Material to be Filed as Exhibits.
The following documents are filed as exhibits to this Schedule 13D:
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CUSIP NO. 40427A108 13D Page 7 of 9 Pages
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Exhibit 99.1. Agreement and Plan of Merger dated November 11, 2002,
incorporated by reference to Plug Power Inc.'s Current Report on Form 8-K, filed
November 13, 2002 (File No. 000-27527).
Exhibit 99.2. Form of Voting Agreement, incorporated by reference to
Plug Power Inc.'s Current Report on Form 8-K, filed November 13, 2002 (File No.
000-27527).
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CUSIP NO. 40427A108 13D Page 8 of 9 Pages
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SIGNATURES
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Date: November 21, 2002
PLUG POWER INC.
By: /s/ W. Mark Schmitz
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Name: W. Mark Schmitz
Title: Chief Financial Officer
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CUSIP NO. 40427A108 13D Page 9 of 9 Pages
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SCHEDULE I
The business address of each of the following directors and/or
executive officers of Plug Power Inc., a Delaware corporation ("Plug Power") is
c/o Plug Power Inc., 968 Albany- Shaker Road, Latham, New York 12110, except as
otherwise indicated.
Dr. Roger B. Saillant. Dr. Saillant is the President, Chief Executive Officer
and a Director of Plug Power.
Gregory A. Silvestri. Mr. Silvestri is the Chief Operating Officer of Plug
Power.
W. Mark Schmitz. Mr. Schmitz is the Chief Financial Officer, Treasurer and a
Vice President of Plug Power.
Mark A. Sperry. Mr. Sperry is the Chief Marketing Officer of Plug Power.
Dr. John F. Elter. Dr. Elter is the Vice President of Research and System
Architecture of Plug Power.
Anthony F. Earley, Jr. Mr. Early is a director of Plug Power and Chief Executive
Officer and Chairman of DTE Energy Company, an energy and energy technology
provider, and its subsidiary, The Detroit Edison Company, an electric utility,
both of which are located at 2000 Second Avenue, Detroit, Michigan 48226-1279.
George C. McNamee. Mr. NcNamee is a director of Plug Power and Chairman and
Co-Chief Executive Officer of First Albany Companies Inc., a specialty
investment banking firm located at 30 S. Pearl Street, Albany, New York 12207.
Douglas T. Hickey. Mr. Hickey is a director of Plug Power and a Partner at
Hummer-Winblad Venture Partners, a venture capital firm located at 2 South Park,
2nd Floor, San Francisco, California 94107.
John M. Shalikashvili. Mr. Shalikashvili, who is currently a retired General
from the United States Army, is a director of Plug Power.
Larry G. Garberding. Mr. Garberding , who is currently retired, is a director of
Plug Power.
John G. Rice. Mr. Rice is a director of Plug Power and President and Chief
Executive Officer of GE Power Systems, a supplier of power generation
technology, energy services and management systems located at 4200 Wildwood
Parkway, Atlanta, Georgia 30339.
J. Douglas Grant. Mr. Grant is a director of Plug Power and Chairman of Sceptre
Investment Counsel Limited, an investment management company located at 26
Wellington Street East, 12th Floor, Toronto, Ontario M5E 1W4.