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As filed with the Securities and Exchange Commission on November 3, 1999
Registration Statement No. 333-______________
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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)
Delaware 22-3672377
(State of Incorporation) (I.R.S. Employer Identification No.)
968 Albany-Shaker Road
Latham, NY 12110
(518) 782-7700
(Address, including zip code, and telephone number, including area code,
of Registrant's principal executive offices)
Plug Power Inc.
Employee Stock Purchase Plan
(Full Title of the Plan)
----------------------------
Gary Mittleman
President and Chief Executive Officer
Plug Power Inc.
968 Albany-Shaker Road
Latham, NY 12110
(518) 782-7700
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------
With a copy to:
Robert P. Whalen, Jr., P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===============================================================================================================================
Title of Securities Being Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered Registered (1) Offering Price Per Share (2) Aggregate Offering Price Registration Fee
<S> <C> <C> <C> <C>
Common Stock, par value $.01 1,000,000 $15.88 $15,880,000 $4,415.00
per share
Plan Interests (3) N/A (3) N/A (3) N/A (3) N/A (3)
===============================================================================================================================
</TABLE>
(1) This Registration Statement also relates to such indeterminate number of
additional shares of Plug Power Inc. Common Stock as may be required
pursuant to the Employee Stock Purchase Plan in the event of a stock
dividend, reverse stock split, split-up, recapitalization, forfeiture of
stock under the plan or other similar event.
(2) This estimate is made pursuant to Rule 457(c) and (h) under the Securities
Act of 1933, as amended (the "Securities Act") solely for the purposes of
determining the amount of the registration fee. The registration fee is
based upon the average of the high and low prices for the Registrant's
Common Stock, par value $0.1 per share, as reported on The Nasdaq National
Market on November 1, 1999.
(3) In addition, pursuant to Rule 416(c) under the Securities Act, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plan described herein.
In accordance with Rule 457(h)(2), no separate fee calculation is made for
plan interests.
===============================================================================
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
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Item 2. Registrant Information and Employee Plan Annual Information.*
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* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
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Plug Power Inc. (the "Registrant") hereby incorporates by reference:
the description of the Registrant's Common Stock contained in the
Registration Statement on Form 8-A (Registration Statement No. 333-86089),
dated October 1, 1999, as filed with the Securities and Exchange Commission
on October 1, 1999 pursuant to Section 12(g) of the Securities Exchange Act
of 1934, as amended.
In addition, all documents subsequently filed with the Securities and
Exchange 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
hereto that indicates that all securities offered hereunder 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. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
Item 4. Description of Securities.
-------------------------
Not Applicable.
Item 5. Interests of Named Experts and Counsel.
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Not Applicable.
2
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Item 6. Indemnification of Directors and Officers.
-----------------------------------------
In accordance with Section 145 of the General Corporation Law of the State
of Delaware ("DGCL"), Article VII of the Registrant's Amended and Restated
Certificate of Incorporation (the "Certificate") provides that no director of
the Registrant shall be personally liable to the Registrant or its stockholders
for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the Registrant
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) under
Section 174, or (iv) for any transaction from which the director derived an
improper personal benefit. In addition, the Certificate provides that if the
Delaware General Corporation Law is amended to authorize the further elimination
or limitation of the personal liability of directors, then the liability of a
director of the Registrant shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended. The
Certificate further provides that any repeal of Article VII by the stockholders
or an amendment to the DGCL shall not adversely effect any right or protection
with respect to acts or omissions occurring prior to such repeal.
Article V of the Registrant's Amended and Restated By-laws (the "By-laws")
provides for indemnification by the Registrant of its directors, officers and
certain non-officer employees under certain circumstances against expenses
(including attorneys fees, courts costs, travel expenses and additional
expenses), judgments, penalties, 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 a director, an officer or an employee of the
Registrant, or is acting in any capacity with other entities at the request 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 the
Registrant, and with respect to criminal actions or proceedings, that such
person had no reasonable cause to believe his or her conduct was unlawful.
The Registrant has entered into indemnification agreements with each of its
directors reflecting the foregoing provisions of its By-laws and requiring the
advancement of expenses in proceedings, if such person had no reasonable cause
to believe his or her conduct was unlawful.
The Company carries directors' and officers' liability insurance covering
its directors and officers.
Item 7. Exemption from Registration Claimed.
-----------------------------------
Not Applicable.
Item 8. Exhibits.
--------
The following is a complete list of exhibits filed as part of this
Registration Statement.
Exhibits
- --------
* 4.1 Plug Power Inc. Amended and Restated Certificate of
Incorporation
* 4.2 Plug Power Inc. Amended and Restated By-laws.
* 4.3 Plug Power Inc. Employee Stock Purchase Plan
5.1 Opinion of Goodwin, Procter & Hoar llp as to the legality of the
securities being registered
23.1 Consent of Goodwin, Procter & Hoar llp (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers llp
24.1 Powers of Attorney (included on signature pages to this Registration
Statement)
* Incorporated by reference to the relevant exhibit to the Plug Power Inc.
Registration Statement on Form S-1 (SEC File No. 333-86089), as amended, as
filed with the Securities and Exchange Commission.
Item 9. Undertakings.
------------
3
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(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act; and
(ii) To reflect in the prospectus any acts 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;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the undersigned
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the Registration Statement;
(2) 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.
(b) The undersigned Registrant hereby undertakes 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 such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) 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
Securities and Exchange 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
Securities Act and will be governed by the final adjudication of such
issue.
4
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SIGNATURES
Pursuant to the requirements of the Securities Act, Plug Power Inc.
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 Latham, New York on this 3rd day of November, 1999.
Plug Power Inc.
By: /s/ Gary Mittleman
--------------------------------
Gary Mittleman
President and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears
below constitutes and appoints each of Gary Mittleman and Ana-Maria Galeano such
person's true and lawful attorney-in-fact and agent with full power of
substitution and resubstitution, for such person and in such person's name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file the same, with all exhibits thereto, and all documents in connection
therewith, with the Securities and Exchange Commission, granting unto each said
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as such person might or could do
in person, hereby ratifying and confirming all that any said attorney-in-fact
and agent, or any substitute or substitutes of any of them, may lawfully do or
cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Gary Mittleman
- ------------------------------ President, Chief Executive November 3, 1999
Gary Mittleman Officer (Principal Executive Officer)
and Director
/s/ William H. Largent Treasurer and Chief Financial Officer November 3, 1999
- ------------------------------ (Principal Financial Officer and
William H. Largent Principal Accounting Officer)
/s/ Michael Cudahy Director November 3, 1999
- -----------------------------
Michael Cudahy
/s/ Anthony F. Earley, Jr. Director November 3, 1999
- ------------------------------
Anthony F. Earley, Jr.
</TABLE>
S-1
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<TABLE>
<S> <C> <C>
/s/ Larry G. Garberding Director November 3, 1999
- ------------------------------
Larry G. Garberding
/s/ George C. McNamee Chairman November 3, 1999
- ------------------------------
George C. McNamee
/s/ Dr. Walter L. Robb Director November 3, 1999
- ------------------------------
Dr. Walter L. Robb
/s/ Robert L. Nardelli Director November 3, 1999
- ------------------------------
Robert L. Nardelli
/s/ General John M. Shalikashvili Director November 3, 1999
- ---------------------------------
General John M. Shalikashvili
</TABLE>
S-2
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Description
- ---------- -----------
<S> <C>
* 4.1 Plug Power Inc. Amended and Restated Certificate of Incorporation.
* 4.2 Plug Power Inc. Amended and Restated By-Laws.
* 4.3 Plug Power Inc. Employee Stock Purchase Plan.
5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the
securities being registered.
23.1 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1)
23.2 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included on signature pages to this Registration
Statement).
</TABLE>
* Incorporated by reference to the relevant exhibit to the Plug Power Inc.
Registration Statement on Form S-1 (SEC File No. 333-86089), as amended, as
filed with the Securities and Exchange Commission.
<PAGE>
EXHIBIT 5.1
November 3, 1999
Plug Power Inc.
968 Albany-Shaker Road
Latham, New York 12110
Ladies and Gentlemen:
Re: Registration Statement on Form S-8
----------------------------------
This opinion is delivered in our capacity as counsel to Plug Power Inc. (the
"Company") in connection with the preparation and filing with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"), of
a Registration Statement on Form S-8 (the "Registration Statement") relating to
1,000,000 shares of Common Stock, par value $.01 per share (the "Registered
Shares"), which the Company may issue pursuant to its Employee Stock Purchase
Plan (the "Plan").
As counsel for the Company, we have examined a copy of the Plan and the
Company's Amended and Restated Certificate of Incorporation and the Company's
Amended and Restated By-laws, each as presently in effect, and such records,
certificates and other documents of the Company as we have deemed necessary or
appropriate for the purposes of this opinion.
We are attorneys admitted to practice in The Commonwealth of Massachusetts.
We express no opinion concerning the laws of any jurisdiction other than the
laws of the United States of America, The Commonwealth of Massachusetts and the
State of Delaware.
Based on the foregoing, we are of the opinion that upon the issuance and
delivery of the Registered Shares against payment therefor in accordance with
the terms of the Plan and any agreement thereunder, the Registered Shares will
be legally issued, fully paid and non-assessable shares of the Company's Common
Stock.
The foregoing assumes all requisite steps will be taken to comply with the
requirements of the Act, applicable requirements of state laws regulating the
offer and sale of securities and applicable requirements of The Nasdaq Stock
Market, Inc.
We hereby consent to being named as counsel to the Company in the Registration
Statement and to the inclusion of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Goodwin, Procter & Hoar LLP
GOODWIN, PROCTER & HOAR LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated April 9, 1999 relating to the
financial statements of Plug Power LLC (a development stage enterprise), which
appears in the Company's Registration Statement on Form S-1 dated October 28,
1999.
PricewaterhouseCoopers LLP
Albany, New York
November 3, 1999
