SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 8, 2020
Plug Power Inc.
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction||(Commission File||(IRS Employer|
|of incorporation)||Number)||Identification No.)|
968 Albany Shaker Road,
Latham, New York
|(Address of principal executive offices)||(Zip Code)|
Registrant’s telephone number, including area code: (518) 782-7700
(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 April 8, 2020, Plug Power Inc. (the “Company”) filed with the Securities and Exchange Commission (the “SEC”) a prospectus supplement (“Prospectus Supplement”) to the prospectus included in its shelf registration statement on Form S-3ASR (File No. 333-235328) filed with the SEC on December 2, 2019. The Company filed the Prospectus Supplement for the purpose of registering for resale up to 1,770,135 shares of the Company’s common stock that were issued to a selling stockholder identified in the Prospectus Supplement. 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 being registered, which opinion is attached as Exhibit 5.1 to this Current Report on Form 8-K.
Item 9.01. Financial Statements and Exhibits.
|5.1||Opinion of Goodwin Procter LLP|
|23.1||Consent of Goodwin Procter LLP (included in Exhibit 5.1)|
|104||Cover Page Interactive Data File (embedded within the Inline XBRL document)|
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: April 8, 2020||By:||/s/ Paul Middleton|
|Name: Paul Middleton|
|Title: Chief Financial Officer|
[Goodwin Procter LLP Letterhead]
April 8, 2020
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 a Registration Statement on Form S-3 (File No. 333-235328) (the “Registration Statement”) filed on December 2, 2019 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 up to 1,770,135 shares of common stock, par value $0.01 per share (the “Selling Stockholder Shares”), of Plug Power Inc., a Delaware corporation (the “Company”), to be sold by a certain stockholder of the Company (the “Selling Stockholder”). The Registration Statement became effective upon filing with the Commission on December 2, 2019. Reference is made to our opinion letter dated December 2, 2019 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 April 8, 2020, by the Company with the Commission pursuant to Rule 424 under the Securities Act. The Prospectus Supplement relates to the offering by the Selling Stockholder of up to 1,770,135 Selling Stockholder Shares covered by the Registration Statement. We understand that the Selling Stockholder 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 Selling Stockholder Shares have been duly authorized and validly issued and are fully paid and nonassessable.
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 Selling Stockholder 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|