0001193125-14-085720.txt : 20140306 0001193125-14-085720.hdr.sgml : 20140306 20140306091252 ACCESSION NUMBER: 0001193125-14-085720 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 3 333-173268 FILED AS OF DATE: 20140306 DATE AS OF CHANGE: 20140306 EFFECTIVENESS DATE: 20140306 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PLUG POWER INC CENTRAL INDEX KEY: 0001093691 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRICAL INDUSTRIAL APPARATUS [3620] IRS NUMBER: 223672377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: 1933 Act SEC FILE NUMBER: 333-194352 FILM NUMBER: 14671577 BUSINESS ADDRESS: STREET 1: 968 ALBANY-SHAKER ROAD CITY: LATHAM STATE: NY ZIP: 12110 BUSINESS PHONE: 5187827700 MAIL ADDRESS: STREET 1: 968 ALBANY-SHAKER ROAD CITY: LATHAM STATE: NY ZIP: 12110 S-3MEF 1 d688572ds3mef.htm REGISTRATION STATEMENT Registration Statement

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 Registrant’s 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
EX-5.1 2 d688572dex51.htm EX-5.1 EX-5.1

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 Company’s 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

EX-23.1 3 d688572dex231.htm EX-23.1 EX-23.1

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