As filed with the Securities and Exchange Commission on September 19, 2022
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
PLUG POWER INC.
(Exact Name of Registrant as Specified in Its Charter)
| Delaware | 22-3672377 |
| (State or Other Jurisdiction of Incorporation or Organization) | (I.R.S. Employer Identification No.) |
| 968 Albany Shaker Road Latham, NY |
12110 |
| (Address of Principal Executive Offices) | (Zip Code) |
Amendment No. 1 to the Plug Power Inc. 2021 Stock Option and Incentive Plan
(Full Title of the Plan)
Andrew Marsh
President and Chief Executive Officer
Plug Power Inc.
968 Albany Shaker Road
Latham, New York 12110
(Name and Address of Agent For Service)
(518) 782-7700
(Telephone Number, Including Area Code, of Agent For Service)
With a copy to:
Robert P. Whalen, Jr.
Audrey S. Leigh
Goodwin Procter LLP
100 Northern Avenue
Boston, Massachusetts 02210
(617) 570-1000
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the Exchange Act.
| Large accelerated filer x | Accelerated filer o |
| Non-accelerated filer o | Smaller reporting company o |
| Emerging growth company o |
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
EXPLANATORY NOTE
REGISTRATION OF ADDITIONAL SHARES
This Registration Statement on Form S-8 is filed to register an additional 17,530,000 shares of common stock, par value $0.01 per share (“Common Stock”), of Plug Power Inc. (the “Registrant”) authorized to be issued under the Plug Power Inc. 2021 Stock Option and Incentive Plan (the “2021 Plan”). The stockholders of the Registrant approved an amendment to the 2021 Plan on June 30, 2022 at the Registrant’s 2022 Annual Meeting of Stockholders to, among other things, increase the number of shares of Common Stock available for issuance under the 2021 Plan. These additional shares of Common Stock are securities of the same class as other securities for which the Registration Statement on Form S-8 (File No. 333-258797) (the “Prior Registration Statement”) was filed with the Securities and Exchange Commission (the “Commission”) on August 13, 2021. After giving effect to this Registration Statement, an aggregate of 40,030,000 shares of the Registrant’s Common Stock have been registered for issuance under the 2021 Plan.
In accordance with General Instruction E to Form S-8, this Registration Statement hereby incorporates by reference the contents of the Prior Registration Statement except as set forth below.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Commission pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are incorporated by reference in this Registration Statement:
| (a) | the Annual Report on Form 10-K for the year ended December 31, 2021, filed with the Commission on March 1, 2022; |
| (b) | the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2022 and June 30, 2022, filed with the Commission on May 9, 2022 and August 9, 2022, respectively; |
| (c) | the Current Reports on Form 8-K filed with the Commission on March 21, 2022, April 18, 2022, July 1, 2022, July 6, 2022, July 26, 2022 and August 25, 2022; and |
In addition, all documents (other than current reports furnished under Item 2.02 or Item 7.01 of Form 8-K and exhibits filed on such form that are related to such items) subsequently filed with the Commission by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, on or after the date of this Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered herein have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document which also is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 8. Exhibits.
See the Exhibit Index included herein for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.
EXHIBIT INDEX
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Latham, New York, on this 19th day of September, 2022.
| PLUG POWER, INC. | ||
| By: | /s/Andrew Marsh | |
| Andrew Marsh | ||
| President and Chief Executive Officer | ||
POWER OF ATTORNEY AND SIGNATURES
We, the undersigned officers and directors of Plug Power Inc., hereby severally constitute and appoint Andrew Marsh and Gerard L. Conway Jr., and each of them singly, our true and lawful attorneys with full power to them, and each of them singly, to sign for us and in our names in the capacities indicated below, the Registration Statement on Form S-8 filed herewith and any and all subsequent amendments to said registration statement, and generally to do all such things in our names and on our behalf in our capacities as officers and directors to enable Plug Power Inc. to comply with the provisions of the Securities Act of 1933, as amended, and all requirements of the Securities and Exchange Commission, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and any and all amendments thereto.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
| Signature | Title | Date |
| /s/ Andrew J. Marsh | President, Chief Executive Officer and Director (Principal Executive Officer) | September 19, 2022 |
| Andrew J. Marsh | ||
| /s/ Paul Middleton | Chief Financial Officer (Principal Financial Officer) | September 19, 2022 |
| Paul Middleton | ||
| /s/ Martin D. Hull | Controller and Chief Accounting Officer (Principal Accounting Officer) | September 19, 2022 |
| Martin D. Hull | ||
| /s/ George C. McNamee | Director | September 19, 2022 |
| George C. McNamee | ||
| /s/ Gary K. Willis | Director | September 19, 2022 |
| Gary K. Willis | ||
| /s/ Maureen O. Helmer | Director | September 19, 2022 |
| Maureen O. Helmer | ||
| /s/ Gregory L. Kenausis | Director | September 19, 2022 |
| Gregory L. Kenausis | ||
| /s/ Lucas P. Schneider | Director | September 19, 2022 |
| Lucas P. Schneider | ||
| /s/ Jonathan M. Silver | Director | September 19, 2022 |
| Jonathan M. Silver | ||
| /s/ Kyungyeol Song | Director | September 19, 2022 |
| Kyungyeol Song | ||
| /s/ Jean A. Bua | Director | September 19, 2022 |
| Jean A. Bua | ||
| /s/ Kavita Mahtani | Director | September 19, 2022 |
| Kavita Mahtani |
Exhibit 5.1
September 19, 2022
Plug Power Inc.
968 Albany Shaker Road
Latham, NY 12110
| Re: | Securities Being Registered under Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-8 (the “Registration Statement”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), on or about the date hereof relating to an aggregate of 40,030,000 shares (the “Shares”) of common stock, $0.01 par value per share (“Common Stock”), of Plug Power Inc., a Delaware corporation (the “Company”), that may be issued pursuant to the Company’s 2021 Stock Option and Incentive Plan, as amended (the “Plan”).
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinions set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
The opinion set forth below is limited to the Delaware General Corporation Law.
For purposes of the opinion set forth below, we have assumed that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms of the Plan, will be validly issued, fully paid and nonassessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, | |
| /s/ Goodwin Procter LLP | |
| GOODWIN PROCTER LLP | |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the use of our reports dated March 1, 2022, with respect to the consolidated financial statements of Plug Power Inc., and the effectiveness of internal control over financial reporting, incorporated herein by reference.
| /s/ KPMG LLP |
Albany, New York
September 19, 2022
Exhibit 107
Calculation of Filing Fee Table
Form S-8
(Form Type)
Plug Power Inc.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered Securities
| Security Type | Security Class Title | Fee Calculation Rule | Amount Registered(1) | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount of
Registration Fee | |||||||||||||||
| Equity | Plug Power Inc. 2021 Stock Option and Incentive Plan Common Stock, $0.01 par value per share | Other | 17,530,000 | (2) | $ | 28.33 | (3) | $ | 496,624,900.00 | $ | 0.0000927 | $ | 46,037.13 | |||||||||
| Total Offering Amounts | $ | 496,624,900.00 | $ | 46,037.13 | ||||||||||||||||||
| Total Fee Offsets | $ | 0 | ||||||||||||||||||||
| Net Fee Due | $ | 46,037.13 | ||||||||||||||||||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement shall also cover any additional shares of common stock which become issuable by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number of the Registrant’s outstanding shares of common stock. |
| (2) | Represents 17,530,000 additional shares of common stock authorized to be issued under Amendment No. 1 to the Plug Power Inc. 2021 Stock Option and Incentive Plan (the “2021 Plan”). Shares available for issuance under the 2021 Plan were previously registered on a Registration Statement on Form S-8 filed with the Securities and Exchange Commission on August 13, 2021 (File No. 333-258797). |
| (3) | Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and (h) of the Securities Act, and based on the average of the high and low sale prices of the Registrant’s common stock, as quoted on the Nasdaq Capital Market, on September 16, 2022. |