As filed with the Securities and Exchange Commission on December 12, 2014

 

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)

 

 

968 Albany-Shaker Road
Latham, NY 12110

(Address of Principal Executive Offices)

 

PLUG POWER INC.

AMENDED AND RESTATED 2011 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

(518) 782-7700

(Name and Address of Agent For Service)

 

With a copy to:

 

Robert P. Whalen, Jr.
Goodwin Procter LLP
Exchange Place

53 State Street

Boston, Massachusetts 02109-2881

(617) 570-1000

 

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.

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered		Amount to be Registered(1)		Proposed Maximum Offering Price per Share			Proposed Maximum Aggregate Offering Price			Amount of Registration Fee
Common Stock, $0.01 par value per share(2)		16,000,000	(3)	$	3.10	(4)	$	49,600,000	(4)	$	5,763.52

(1)          This Registration Statement relates to 16,000,000 shares of Common Stock, par value $0.01 per share, of Plug Power Inc. (“Common Stock”) that may be issued under the Plug Power Inc. Amended and Restated 2011 Stock Option and Incentive Plan (the “Plan”).  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 under the Plan 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 our outstanding shares of Common Stock.

 

(2)          This Registration Statement also relates to the rights to purchase shares of Series A Junior Participating Cumulative Preferred Stock of the Registrant that are attached to all shares of Common Stock issued pursuant to the terms of the Registrant’s Shareholder Rights Agreement, dated as of June 23, 2009, as amended. Until the occurrence of certain prescribed events, the rights are not exercisable, are evidenced by the certificates for the Common Stock and will be transferred with and only with such Common Stock. Because no separate consideration is paid for the rights, the registration fee therefore is included in the fee for the Common Stock.

 

(3)          Represents 16,000,000 additional shares of Common Stock authorized to be issued under the Plan.  Shares available for issuance under the Plan were initially registered on a Registration Statement on Form S-8, filed with the Securities and Exchange Commission on July 29, 2011 (File No. 333-175907).  There are an aggregate of 17,000,000 shares of Common Stock authorized under the Plan.  Certain restricted share units and options have been issued but not exercised under the Plan prior to amendment.

 

(4)          Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and (h) of the Securities Act, based on the average of the high and low sales prices on the NASDAQ Capital Market on December 11, 2014, rounded to the nearest cent.

 

 

Proposed sales to take place as soon after the effective date of the Registration Statement as awards are granted, exercised or distributed under the above-named plans.

 

 

 

NOTE

 

This Registration Statement on Form S-8 registers 16,000,000 additional shares of Common Stock which may be acquired pursuant to the Plan.  The securities subject to this Registration Statement are of the same class as other securities for which the Registrant previously filed a Registration Statement on Form S-8 under the Securities Act registering the issuance of shares of Common Stock under the Plan.  Accordingly, the contents of the Registrant’s Registration Statement on Form S-8, File No. 333-175907, as filed with the Securities and Exchange Commission (the “Commission”) on July 29, 2011, are hereby incorporated by reference pursuant to General Instruction E to Form S-8.  After giving effect to this Registration Statement, an aggregate of 17,000,000 shares of the Registrant’s Common Stock have been registered for issuance under the Plan.

 

Part I

 

INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

The information called for in Part I of Form S-8 is not being filed with or included in this Form S-8 (by incorporation by reference or otherwise) in accordance with the rules and regulations of the Commission.

 

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 Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2013, filed with the Commission on March 31, 2014, as amended by the Registrant’s Annual Report on Form 10-K/A for the fiscal year ended December 31, 2013, filed with the Commission on April 22, 2014;

(b)         The Registrant’s Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2014, filed with the Commission on May 15, 2014, Quarterly Report on Form 10-Q for the fiscal quarter ended July 31, 2014, filed with the Commission on August 14, 2014, and Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2014, filed with the Commission on November 14, 2014;

(c)          The Registrant’s Current Reports on Form 8-K, filed with the Commission on January 10, 2014, January 15, 2014, March 6, 2014, March 11, 2014, April 3, 2014, April 23, 2014, April 25, 2014, April 30, 2014, July 25, 2014, September 5, 2014, November 12, 2014, November 12,2014 and December 8, 2014, and the Amended Current Report on Form 8-K/A, filed with the Commission on June 16, 2014;

(d)         The Registrant’s Registration Statement on Form S-8, filed with the Commission on July 29, 2011;

(e)          The section entitled “Description of Registrant’s Securities to be Registered” contained in the Registrant’s Statement on Form 8-A, filed with the Commission pursuant to Section 12(g) of the Exchange Act on October 1, 1999; and

(f)           The section entitled “Description of Registrant’s Securities to be Registered” contained in the Registrant’s Statement on Form 8-A, filed with the Commission pursuant to Section 12(g) of the Exchange Act on June 24, 2009, as amended by the Registrant’s Registration Statements on Form 8-A/A, filed with the Commission pursuant to Section 12(b) of the Exchange Act on May, 6, 2011, March 16, 2012, March 23, 2012, February 12, 2013 and May 8, 2013.

 

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, 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.

 

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Item 8.   Exhibits.

 

See the Exhibit Index on the page immediately preceding the exhibits for a list of exhibits filed as part of this Registration Statement, which Exhibit Index is incorporated herein by reference.

 

SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, 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 the City of Albany, State of New York, on December 10, 2014.

 

 

	PLUG POWER INC.
	By:	/s/ Andrew Marsh
		Andrew Marsh
		President, Chief Executive Officer and Director

 

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 sign for us in our names in the capacities indicated below, any amendments to this Registration Statement on Form S-8 (including post-effective amendments), and to file the same, with all exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, and generally to do all 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, hereby ratifying and confirming our signatures as they may be signed by our said attorneys, or any of them, to said Registration Statement and all amendments thereto.

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following person in the capacities and on the dates indicated below.

 

Name		Title		Date
/s/ Andrew Marsh		President, Chief Executive Officer and Director		December 10, 2014
Andrew Marsh		(Principal Executive Officer)
/s/ Paul Middleton		Chief Financial Officer		December 10, 2014
Paul Middleton		(Principal Financial Officer)
/s/ Jill McCoskey		Chief Accounting Officer		December 10, 2014
Jill McCoskey		(Principal Accounting Officer)
/s/ George C. McNamee		Chairman of the Board of Directors		December 10, 2014
George C. McNamee
/s/ Larry G. Garberding		Director		December 10, 2014
Larry G .Garberding
/s/ Gary K. Willis		Director		December 10, 2014
Gary K. Willis
/s/ Maureen O. Helmer		Director		December 10, 2014
Maureen O. Helmer
/s/ Douglas T. Hickey		Director		December 10, 2014
Douglas T. Hickey
/s/ Johannes M. Roth		Director		December 10, 2014
Johannes M. Roth

 

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/s/ Gregory L. Kenausis		Director		December 10, 2014
Gregory L. Kenausis
/s/ Xavier Pontone		Director		December 10, 2014
Xavier Pontone

 

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EXHIBIT INDEX

 

Exhibit No.		Description
4.1		Amended and Restated Certificate of Incorporation of Plug Power Inc. (incorporated by reference from the Company’s Annual Report on 10-K for the period ended December 31, 2008).
4.2		Certificate of Amendment to Certificate of Incorporation of Plug Power Inc. (incorporated by reference from the Company’s Current Report on 8-K filed with the Commission on November 2, 2009).
4.3		Second Certificate of Amendment of Amended and Restated Certificate of Incorporation of Plug Power Inc. (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on May 19. 2011).
4.4		Third Amended and Restated By-laws of Plug Power Inc. (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on October 28, 2009).
4.5		Certificate of Designations, Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. classifying and designating the Series A Junior Participating Cumulative Preferred Stock incorporated by reference from the Company’s Registration Statement on Form 8-A dated June 24, 2009).
4.6		Certificate of Designations of Series C Redeemable Preferred Stock of Plug Power Inc. (incorporated by reference from the Company’s Current Report on 8-K filed with the Commission on May 20, 2013).
4.7		Specimen certificate for shares of common stock, $0.01 par value, of Plug Power Inc. (incorporated by reference from the Company’s Registration Statement on Form S-1/A (File No. 333-86089) filed with the Commission on October 1, 1999).
4.8		Shareholder Rights Agreement, dated as of June 23, 2009, between Plug Power Inc. and American Stock Transfer & Trust Company, LLC, as Rights Agent. (incorporated by reference from the Company’s Registration Statement on Form 8-A dated June 24, 2009).
4.9		Amendment, dated as of May 6, 2011, to the Shareholder Rights Agreement by and between the Company and American Stock Transfer & Trust Company LLC, as Rights Agent (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on May 6, 2011).
4.10		Amendment No. 2, dated as of March 16, 2012, to the Shareholder Rights Agreement by and between the Company and American Stock Transfer & Trust Company LLC, as Rights Agent (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on March 19, 2012).
4.11		Amendment No. 3, dated as of March 23, 2012, to the Shareholder Rights Agreement by and between the Company and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on March 26, 2012).
4.12		Amendment No. 4, dated as of February 12, 2013, to the Shareholder Rights Agreement by and between the Company and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on February 13, 2013).
4.13		Amendment No. 5, dated as of May 8, 2013, to the Shareholder Rights Agreement by and between the Company and Broadridge Corporate Issuer Solutions, Inc., as Rights Agent (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on May 8, 2013).
4.14		2011 Stock Option and Incentive Plan (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on May 13. 2011).
4.15		Amended and Restated 2011 Stock Option and Incentive Plan (incorporated by reference from the Company’s Current Report on Form 8-K filed with the Commission on July 25, 2014).
5.1*		Opinion of Goodwin Procter LLP as to the legality of the securities being registered.
23.1*		Consent of Goodwin Procter LLP (included in Exhibit 5.1).
23.2*		Consent of KPMG LLP.
24.1*		Power of Attorney (included as part of the signature page to this Registration Statement).

 

*                                         Filed herewith.

 

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