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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549 

 

FORM 8-K

 

CURRENT REPORT 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): May 24, 2024

 

Plug Power Inc.

(Exact name of registrant as specified in its charter) 

 

Delaware   1-34392   22-3672377
(State or other jurisdiction   (Commission File   (IRS Employer
of incorporation)   Number)   Identification No.)
         

968 Albany Shaker Road,
Latham, New York
 
12110
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (518) 782-7700

 

N/A

(Former name or former address, if changed since last report.)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): 

 

¨Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to 12(b) of the Act:

 

Title of each class   Trading Symbol(s)   Name of each exchange on which
registered
Common Stock, par value $0.01 per share   PLUG   The Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

 

Emerging growth company ¨

 

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 13(a) of the Exchange Act. ¨

 

 

 

 

 

Item 8.01

Other Events. 

 

On May 24, 2024, Plug Power Inc. (the “Company”) filed with the Securities and Exchange Commission a prospectus supplement (the “Prospectus Supplement”) to its automatic shelf registration statement on Form S-3 (File No. 333-265488) relating to the resale by certain selling stockholders of up to 3,461,371 shares of the Company’s common stock issuable upon exercise of the warrants that were issued to the selling stockholders pursuant to that certain Agreement and Plan of Merger, dated June 22, 2020 (as amended, supplemented or modified from time to time), by and among the Company, Giner ELX Sub, LLC, Giner ELX Merger Sub, Inc., Giner ELX, Inc., and Giner, Inc., as the representative of the stockholders. 

 

In connection with the filing of the Prospectus Supplement, the Company is filing an opinion of its counsel, Goodwin Procter LLP, regarding the legality of the common stock issuable upon exercise of the warrants, which opinion is attached as Exhibit 5.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit

No.

  Description
5.1   Opinion of Goodwin Procter LLP.
23.1   Consent of Goodwin Procter LLP (included in its opinion filed as Exhibit 5.1).
104   Cover Page Interactive Data File - the cover page iXBRL tags are embedded within the Inline XBRL document.

 

 

 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  PLUG POWER INC.
     
Date: May 24, 2024 By: /s/ Paul Middleton
    Paul Middleton
    Chief Financial Officer

 

 

 

  

 

Exhibit 5.1 

 

  

Goodwin Procter llp

The New York Times Building
620 Eighth Avenue
New York, NY 10018
 
goodwinlaw.com
+1 212 813 8800

 

May 24, 2024

 

Plug Power Inc.

968 Albany-Shaker Road

Latham, NY 12110

 

Re:       Securities Registered under Registration Statement on Form S-3

 

We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-265488) (as amended or supplemented, the “Registration Statement”) filed on June 8, 2022 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by Plug Power Inc., a Delaware corporation (the “Company”), of any combination of securities of the types specified therein. The Registration Statement became effective upon filing with the Commission on June 8, 2022. Reference is made to our opinion letter dated June 8, 2022 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement (the “Prospectus Supplement”) filed on May 24, 2024 by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by certain stockholders of the Company (the “Selling Stockholders”) of up to 3,461,371 shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), that may be issuable upon exercise of the warrants held by the Selling Stockholders and covered by the Registration Statement. We understand that the Shares are to be offered and sold in the manner described in the Prospectus Supplement.

 

We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion 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.

 

Based on the foregoing, we are of the opinion that the Shares, when issued upon exercise of the warrants, in accordance with their terms will have been duly authorized and validly issued and will be fully paid and nonassessable.

 

This opinion letter and the opinion it contains shall be interpreted in accordance with the Core Opinion Principles as published in 74 Business Lawyer 815 (Summer 2019).

 

 

 

 

Plug Power Inc.

May 24, 2024

Page 2

 

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Current Report and its incorporation by reference and the reference to our firm in that report. 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

 

 

 

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