As filed with the Securities and Exchange Commission on April 8, 2011
Registration No. 333-173268
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLUG POWER INC.
(Exact name of Registrant as specified in its charter)
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Delaware |
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22-3672377 |
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(State or other jurisdiction of incorporation or organization) |
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(I.R.S. Employer Identification Number) |
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 Offices)
Gerald
A. Anderson
Chief Financial 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:
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Gerard L. Conway Jr., Esq. General Counsel Plug Power Inc. |
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Robert P. Whalen, Jr.,
Esq.
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Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
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, as amended, or the Securities Act, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. x
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
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. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. o
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 Securities Exchange Act of 1934, as amended, or the Exchange Act.
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Large accelerated filer |
o |
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Accelerated filer |
o |
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Non-accelerated filer |
x |
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Smaller reporting company |
o |
The registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment that specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
Plug Power Inc. is filing this Pre-Effective Amendment No. 1 to the Registration Statement on Form S-3 (File No. 333-173268) solely for the purpose of amending the signature page to correct an inadvertent omission, and no changes or additions are being made hereby to the prospectus that forms a part of the Registration Statement. Accordingly, the prospectus is being omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the estimated costs and expenses, other than underwriting discounts and commissions, payable by the registrant in connection with the offering of the securities being registered. All the amounts shown are estimates, except for the SEC registration fee.
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SEC registration fee |
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$ |
11,610 |
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NASDAQ Capital Market listing fee |
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* |
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Accounting fees and expenses |
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* |
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Legal fees and expenses |
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* |
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Transfer Agent fees and expenses |
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* |
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Printing and miscellaneous expenses |
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* |
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Total |
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$ |
* |
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* |
The amount of securities and number of offerings are indeterminable and the expenses cannot be estimated at this time. |
Item 15. Indemnification of Directors and Officers.
In accordance with Section 145 of the Delaware General Corporation Law, Article VII of our amended and restated certificate of incorporation provides that no director of Plug Power shall be personally liable to Plug Power or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (1) for any breach of the director’s duty of loyalty to Plug Power or its stockholders, (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (3) in respect of unlawful dividend payments or stock redemptions or repurchases, or (4) for any transaction from which the director derived an improper personal benefit. In addition, our amended and restated certificate of incorporation provides that if the Delaware General Corporation Law is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Article V of our amended and restated by-laws provides for indemnification by Plug Power of its officers and certain non-officer employees under certain circumstances against expenses, including attorneys fees, judgments, fines and amounts paid in settlement, reasonably incurred in connection with the defense or settlement of any threatened, pending or completed legal proceeding in which any such person is involved by reason of the fact that such person is or was an officer or employee of the registrant if such person acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of Plug Power, and, with respect to criminal actions or proceedings, if such person had no reasonable cause to believe his or her conduct was unlawful.
In addition, we have entered into indemnification agreements with each of our directors. The indemnification agreements require, among other matters, that we indemnify our directors to the fullest extent permitted by law and advance to the director’s all related expenses, subject to reimbursement if it is subsequently determined that indemnification is not permitted. Under these agreements, we must also indemnify and advance all expenses incurred by directors seeking to enforce their rights under the indemnification agreements and may cover directors under directors’ and officers’ liability insurance.
II-1
Item 16. Exhibits.
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Exhibit |
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Description of the Document |
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1.1(1) |
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Form of Underwriting Agreement. |
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3.1(2) |
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Amended and Restated Certificate of Incorporation of Plug Power Inc. |
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3.2(3) |
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Third Amended and Restated By-laws of Plug Power Inc. |
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3.3(2) |
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Plug Power Inc. |
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4.1(4) |
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Certificate
of Designations, Preferences and Rights of a Series of Preferred Stock of
Plug Power Inc. |
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4.2(4) |
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Shareholder Rights Agreement, dated as
of June 23, 2009, between Plug Power Inc. and Registrar |
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4.3(5) |
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Form of Common Stock Certificate of Plug Power Inc. |
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4.4(1) |
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Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. |
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4.5(1) |
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Form of Common Stock Warrant Agreement and Warrant Certificate. |
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4.6(1) |
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Form of Preferred Stock Warrant Agreement and Warrant Certificate. |
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4.7(1) |
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Form of Unit Agreement. |
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5.1(6) |
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Opinion of Goodwin Procter LLP. |
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12.1(1) |
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Statement of Computation of Ratio of Fixed Charges and Preference Dividends to Earnings. |
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23.1 |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
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23.2(6) |
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Consent of Goodwin Procter LLP (included in Exhibit 5.1). |
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24.1(6) |
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Power of Attorney (included on signature page). |
___________________
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| (1) | To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities. | |
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(2) |
Incorporated herein by reference to the registrant’s Annual Report on Form 10-K for the period ended December 31, 2008 filed with the SEC on March 16, 2009. |
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(3) |
Incorporated herein by reference to the registrant’s Current Report on Form 8-K dated October 28, 2009, filed with the SEC on November 2, 2009. |
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(4) |
Incorporated herein by reference to the registrant’s Registration Statement on Form 8-A dated June 24, 2009, filed with the SEC on June 24, 2009. |
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(5) |
Incorporated herein by reference to the registrant’s Registration Statement on Form S-1/A (File Number 333-86089) dated October 1, 1999, filed with the SEC on October 1, 1999. |
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(6) |
Previously filed as an exhibit to this Registration Statement on Form S-3 on April 1, 2011. |
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Item 17. Undertakings.
The undersigned registrant hereby undertakes:
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(1) |
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
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(i) |
To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(ii) |
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in the volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission, or the Commission, pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and |
II-2
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(iii) |
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
provided, however, that paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
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(2) |
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(3) |
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
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(4) |
That, for the purpose of determining liability under the Securities Act to any purchaser: |
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(A) |
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and |
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(B) |
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however , that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date. |
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(5) |
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
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(i) |
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
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(ii) |
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
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(iii) |
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
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(iv) |
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
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(6) |
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(7) |
That, for purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. |
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(8) |
That, for the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
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(9) |
To file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Trust Indenture Act. |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
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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-3 and has duly caused this Amendment No. 1 to 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 8th day of April, 2011.
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PLUG POWER INC. |
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By:
/s/ Andrew Marsh |
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 and on the dates indicated.
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Signature |
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Title |
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Date |
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/s/ Andrew Marsh Andrew Marsh |
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President, Chief Executive Officer and
Director |
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April 8, 2011 |
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/s/ Gerald A. Anderson Gerald A. Anderson |
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Chief Financial Officer (Principal Financial and Accounting Officer) |
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April 8, 2011 |
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* George C. McNamee |
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Chairman of the Board of Directors |
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April 8, 2011 |
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* Larry G. Garberding |
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Director |
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April 8, 2011 |
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* Gary K. Willis |
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Director |
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April 8, 2011 |
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* Maureen O. Helmer |
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Director |
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April 8, 2011 |
*By:
/s/ Gerald A. Anderson
Gerald A. Anderson
Attorney in fact
II-5
EXHIBIT INDEX
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Exhibit |
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Description of the Document |
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1.1(1) |
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Form of Underwriting Agreement. |
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3.1(2) |
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Amended and Restated Certificate of Incorporation of Plug Power Inc. |
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3.2(3) |
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Third Amended and Restated By-laws of Plug Power Inc. |
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3.3(2) |
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Certificate of Amendment to Amended and Restated Certificate of Incorporation of Plug Power Inc. |
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4.1(4) |
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Certificate of Designations,
Preferences and Rights of a Series of Preferred Stock of Plug Power Inc. |
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4.2(4) |
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Shareholder Rights Agreement, dated as
of June 23, 2009, between Plug Power Inc. and Registrar |
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4.3(5) |
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Form of Common Stock Certificate of Plug Power Inc. |
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4.4(1) |
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Specimen Preferred Stock Certificate and Form of Certificate of Designation of Preferred Stock. |
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4.5(1) |
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Form of Common Stock Warrant Agreement and Warrant Certificate. |
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4.6(1) |
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Form of Preferred Stock Warrant Agreement and Warrant Certificate. |
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4.7(1) |
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Form of Unit Agreement. |
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5.1(6) |
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Opinion of Goodwin Procter LLP. |
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12.1(1) |
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Statement of Computation of Ratio of Fixed Charges and Preference Dividends to Earnings. |
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23.1 |
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Consent of KPMG LLP, Independent Registered Public Accounting Firm. |
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23.2(6) |
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Consent of Goodwin Procter LLP (included in Exhibit 5.1). |
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24.1(6) |
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Power of Attorney (included on signature page). |
___________________
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| (1) |
To be filed, if necessary, subsequent to the effectiveness of this registration statement by an amendment to this registration statement or incorporated by reference pursuant to a Current Report on Form 8-K in connection with an offering of securities. |
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(2) |
Incorporated herein by reference to the registrant’s Annual Report on Form 10-K for the period ended December 31, 2008 filed with the SEC on March 16, 2009. |
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(3) |
Incorporated herein by reference to the registrant’s Current Report on Form 8-K dated October 28, 2009, filed with the SEC on November 2, 2009. |
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(4) |
Incorporated herein by reference to the registrant’s Registration Statement on Form 8-A dated June 24, 2009, filed with the SEC on June 24, 2009. |
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(5) |
Incorporated herein by reference to the registrant’s Registration Statement on Form S-1/A (File Number 333-86089) dated October 1, 1999, filed with the SEC on October 1, 1999. |
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(6) |
Previously filed as an exhibit to this Registration Statement on Form S-3 on April 1, 2011. |
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