As filed with the Securities and Exchange Commission on March 6, 2014
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLUG POWER INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware | 3629 | 22-3672377 | ||
(State or Other Jurisdiction of Incorporation or Organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification No.) |
968 Albany Shaker Road
Latham, New York 12110
(518) 782-7700
(Address, including zip code, and telephone number, including area code, of Registrants principal executive office)
Andrew Marsh
President and Chief Executive Officer
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York 12110
(518) 782-7700
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Robert P. Whalen, Jr., Esq. Jocelyn M. Arel, Esq. Goodwin Procter LLP Exchange Place Boston, Massachusetts 02109-2881 (617) 570-1000 |
Gerard L. Conway Jr., Esq. General Counsel Plug Power Inc. 968 Albany-Shaker Road Latham, New York, 12110 (518) 782-7700 |
Steven Skolnick, Esq. Lowenstein Sandler LLP 1251 Avenue of the Americas New York, New York 10020 (646) 262-6700 |
Approximate date of commencement of proposed sale to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. ¨
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. x 333-173268
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act:
Large Accelerated Filer | ¨ | Accelerated Filer | ¨ | |||
Non-Accelerated Filer | x (Do not check if a smaller reporting company) | Smaller Reporting Company | ¨ |
CALCULATION OF REGISTRATION FEE
| ||||
Title of Each Class of Securities to be Registered |
Proposed Maximum Aggregate Offering Price (1) |
Amount of Registration Fee (2) | ||
Common Stock, $0.01 par value per share |
$3,734,329 | $480.99 | ||
Total |
$3,734,329 | $480.99 | ||
| ||||
|
(1) | In accordance with Rule 462(b) promulgated under the Securities Act of 1933, as amended, an additional amount of securities having a proposed maximum offering price of no more than 20% of the maximum aggregate offering price of the securities eligible to be sold under the related Registration Statement on Form S-3, as amended (File No. 333-172368), is hereby registered. |
(2) | This amount has been paid and is in addition to the registration fee of $11,610 previously paid in connection with the filing of the related Registration Statement on Form S-3, as amended (File No. 333-173268). |
This Registration Statement shall become effective upon filing with the Commission in accordance with Rule 462(b) under the Securities Act of 1933.
EXPLANATORY NOTE
Pursuant to Rule 462(b) under the Securities Act of 1933, as amended, we are filing this registration statement with the Securities and Exchange Commission, or SEC, to register an additional $3,734,329 of our common stock. This registration statement relates to the public offering of securities contemplated by the registration statement on Form S-3 (File No. 333-173268), which we filed on April 1, 2011, as amended, and which the SEC declared effective on April 8, 2011. The information set forth in our registration statement on Form S-3 (File No. 333-173268) is incorporated by reference in this filing.
The required opinions and consents are listed on the exhibit index and filed with this filing.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Latham, State of New York, on the 6th day of March, 2014.
PLUG POWER INC. | ||
By: | /s/ Andrew Marsh | |
Name: | Andrew Marsh | |
Title: | President, Chief Executive Officer and Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities indicated on the 6th day of March, 2014.
Signature |
Title | |
* |
President, Chief Executive Officer and Director (Principal Executive Officer) | |
Andrew Marsh | ||
* |
Interim Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | |
David Waldek | ||
* |
Chairman of the Board of Directors | |
George C. McNamee | ||
* |
||
Larry G. Garberding | Director | |
* |
||
Douglas T. Hickey | Director | |
* |
||
Gary K. Willis | Director | |
* |
||
Maureen O. Helmer | Director | |
* |
||
Johannes M. Roth | Director | |
* |
||
Gregory L. Kenausis | Director | |
* |
||
Xavier Pontone | Director |
*By: | /s/ Andrew Marsh Andrew Marsh Attorney-in-fact |
EXHIBIT INDEX
Number |
Description | |
5.1 | Opinion of Goodwin Procter LLP | |
23.1 | Consent of KPMG LLP | |
23.2 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (1) |
(1) | Previously included in the Registration Statement on Form S-3 of Plug Power Inc. filed on April 1, 2011, Registration No. 333-173268 |
Exhibit 5.1
March 6, 2014
Plug Power Inc.
968 Albany Shaker Road
Latham, New York 12110
Re: Securities Registered under Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel to you in connection with your filing of (i) a Registration Statement on Form S-3, Registration No. 333-173268 (as amended or supplemented, the Initial Registration Statement) pursuant to the Securities Act of 1933, as amended (the Securities Act), and (ii) a second Registration Statement on Form S-3 filed pursuant to Rule 462(b) promulgated under the Securities Act (the 462(b) Registration Statement, and together with the Initial Registration Statement, the Registration Statement). This opinion is furnished to you in connection with your filing of the 462(b) Registration Statement, which is registering the offering by Plug Power Inc., a Delaware corporation (the Company), of up to $3,734,329 of shares (the Shares) of the Companys Common Stock, $0.01 par value per share (the Common Stock). The Shares are being sold to the underwriter named in, and pursuant to, an Underwriting Agreement between the Company and such underwriter (the Underwriting Agreement).
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 opinions set forth below, on certificates of officers of the Company.
The opinions set forth below are limited to the Delaware General Corporation Law (which includes reported judicial decisions interpreting the Delaware General Corporation Law) and the law of New York.
Based on the foregoing, and subject to the additional qualifications set forth below, we are of the opinion that:
The Shares have been duly authorized and, when the price upon which the Shares are to be sold have been approved by or on behalf of the Board of Directors of the Company (or a duly authorized committee of the Board of Directors) and the Shares have been issued and delivered against payment in the manner described in the Registration Statement, the Shares will be validly issued, fully paid and non-assessable.
We hereby consent to the inclusion of this opinion as Exhibit 5.1 to the Registration Statement and to the references to our firm under the caption Legal Matters in 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 |
2
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
Plug Power Inc.
We consent to the use of our report dated April 1, 2013, with respect to the consolidated balance sheets of Plug Power Inc. and subsidiaries as of December 31, 2012 and 2011, and the related consolidated statements of operations, comprehensive loss, stockholders equity, and cash flows for each of the years in the three-year period ended December 31, 2012, and the related consolidated financial statement schedule, incorporated by reference in this Registration Statement on Form S-3 of Plug Power Inc. filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to the reference to our firm under the heading Experts in the prospectus related to the Registration Statement on Form S-3 (File No. 333-173268) that is incorporated by reference in this Registration Statement.
Our report dated April 1, 2013 contains an explanatory paragraph that states that the Company has suffered recurring losses from operations and has experienced a substantial decline in working capital that raise substantial doubt about its ability to continue as a going concern. The consolidated financial statements and financial statement schedule do not include any adjustments that might result from the outcome of that uncertainty.
/s/ KPMG LLP
Albany, New York
March 5, 2014