<PAGE>
As filed with the Securities and Exchange Commission on November 3, 1999
Registration Statement No. 333-______________
================================================================================
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. 1997 Membership Option Plan
Plug Power Inc. 1999 Stock Option and Incentive 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
-----------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Title of Securities Being Registered Amounts to be Proposed Maximum Proposed Maximum Amount of
Registered (1) Offering Price Per Share (2) Aggregate Offering Price Registration Fee
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per 1,434,350 $ 1.00 (2) $ 1,434,350 $ 399
share 579,189 $ 5.00 (2) $ 2,895,945 $ 805
587,700 $ 6.67 (2) $ 3,919,959 $ 1,090
726,900 $11.00 (2) $ 7,995,900 $ 2,223
2,343,052 $15.88 (3) $37,207,666 $10,344
------------ -------
5,671,191 (total) $14,861
==================================================================================================================================
</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 1997 Membership Option Plan and the 1999 Stock Option and
Incentive 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) Determined pursuant to Rule 457(h) under the under the Securities Act of
1933, as amended (the "Securities Act").
(3) This estimate is made pursuant to Rule 457(c) and (h) of 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 $0.01 per share, as reported
on The Nasdaq National Market on November 1, 1999.
================================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.*
----------------
Item 2. Registrant Information and Employee Plan Annual Information.*
-----------------------------------------------------------
* Information required by Part I to be contained in the Section 10(a)
Prospectuses 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.
-----------------------------------------------
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.
--------------------------------------
Not Applicable.
2
<PAGE>
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. 1997 Membership Option Plan, as amended
*4.4 Plug Power Inc. 1999 Stock Option and Incentive 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
<PAGE>
(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
<PAGE>
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
- --------------------------- Officer (Principal Executive Officer)
Gary Mittleman 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.
/s/ Larry G. Garberding Director November 3, 1999
- ---------------------------
Larry G. Garberding
</TABLE>
S-1
<PAGE>
<TABLE>
<S> <C> <C>
/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
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
- ---------- -----------
*4.1 Amended and Restated Certificate of Incorporation
*4.2 Amended and Restated By-Laws of the Registrant
4.3 Plug Power Inc. 1997 Membership Option Plan, as amended
*4.4 Plug Power Inc. 1999 Stock Option and Incentive 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.
<PAGE>
Exhibit 4.3
PLUG POWER, L.L.C.
SECOND
AMENDMENT AND RESTATEMENT
OF THE
MEMBERSHIP OPTION PLAN
February 15, 1999
WHEREAS, Plug Power, L.L.C., a limited liability company organized under
the laws of the State of Delaware ("Company") entered into a Membership Option
Plan and Agreement, effective as of the 1st day of July, 1997 (the "Plan"); and
WHEREAS, the Company desires to amend the Plan to provide consultants the
opportunity to acquire Class B membership interests in the Company and to share
in its success, with the added incentive to work effectively for and in the
Company's interest; and
WHEREAS, at a special meeting of the Members of Company held on January 26,
1999, at which all of the Members were present, either by person or by
telephone, and acting with full authority, the Members unanimously agreed to
amend the limited liability company agreement to permit the company to provide
consultants the opportunity to acquire Class B membership interests in the
Company, subject to the specific prior approval by the board of managers for
each consulting contract that provides stock options as part of the contract;
and
WHEREAS, the Company desires to also amend the Plan to include in the
definition of "Employees" eligible to participate in the Plan those employees of
the Company who become directly employed by GE Fuel Cell Systems, L.L.C.
("GEFCS"); and
WHEREAS, such former employees shall be subject to the same terms and
conditions of the Plan; and
NOW, THEREFORE, the text of the original Plan as amended is hereby amended
and restated in its entirety to read as follows:
Agreement, made and effective as of the 15th day of February, by Plug
Power, L.L.C., a limited liability company organized under the laws of the State
of Delaware ("Company").
WHEREAS, Company is a limited liability corporation with Class A membership
interests and Class B membership interests, and
WHEREAS, Company has determined that its interests will be advanced and
best served by providing an incentive to its current employees, certain former
employees and certain consultants, to acquire Class B membership interests in
Company and to share in its success, with the added incentive to work
effectively for and in Company's interest,
<PAGE>
NOW THEREFORE, Company hereby establishes the Plan as follows:
ESTABLISHMENT OF PLAN
The Plan shall be known as the Plug Power Membership Option Plan ("Plan"),
and shall be effective on the date first above written.
ELIGIBILITY
Employees. All employees of Company shall participate in the Plan on its
---------
effective date. An Employee who is eligible to participate in the Plan, as set
forth on Exhibit "A" is hereinafter referred to as "Employee", or in the plural,
as "Employees." Members of the Board of Managers ("Managers") of the Company
and/or Corporations named in lieu of a Manager, as set forth on Exhibit "B",
shall also participate in the Plan on its effective date. In addition,
employees of the Company who become directly employed GE Fuel Cell Systems,
L.L.C. ("GEFCS Employees") shall also be eligible to participate in the Plan.
Hereafter, in this Plan, Managers and/or Corporations and/or GEFCS Employees
shall be referred to as "Employees", and shall be subject to the remaining
provisions of this Plan as though they were Employees, unless specifically
provided otherwise.
Consultants. The board of managers of the Company shall determine those
-----------
consultants of Company, as set forth on Exhibit "C", eligible to participate in
the Plan on its effective date. A Consultant who is eligible to participate in
the Plan and who is shown on the attached Exhibit "C" is hereinafter referred to
as "Consultants", or in the plural, as "Consultants."
GRANT OF OPTIONS
Employees. Company hereby grants to the Employees, as shown on Exhibit "A"
---------
(Employees) and Exhibit "B" (Managers), as a matter of separate agreement and
not in lieu of any other compensation to which such Employees may be otherwise
entitled, the right and option, hereinafter called "Option", or "Options", to
purchase the number shares of Class B membership interests of the Company, at
such times, and in such amounts, as the Company shall determine, on the terms
and conditions hereinafter set forth.
Company may, from time to time, grant additional Options to Employees.
Consultants. Company hereby grants to the Consultants, as shown on Exhibit
-----------
"C", as a matter of separate agreement, the right and option, hereinafter called
"Option" or "Options", to purchase the number shares of class B membership
interests of the Company, at such times, and in such amounts, on the terms and
conditions hereinafter set forth.
Company may, from time to time, amend Exhibit "C", as may be required to
add new Consultants who become eligible for the Plan, or to grant additional
Options to Consultants, but not without the prior authorization of the board of
managers.
2
<PAGE>
OPTION PRICE
The option exercise price for shares of Class B membership interests shall
be set forth on Exhibit "A" for Employees, Exhibit "B" for Managers, and Exhibit
"C" for Consultants, and shall be determined by the Company's board of managers
and which price shall represent the fair value of Company stock on the grant
date.
WHEN OPTIONS ARE EXERCISABLE
Employees. Options shall be exercisable by Employees only after such
---------
Options have vested. Furthermore, no options may be exercised, even if vested,
prior to July 1, 2000, except as provided in sub-paragraphs (f) and (a) below.
Vesting under this Plan is determined by an Employee's length of service
with the Employer, measured from an Employee's date of hire by the Employer,
provided however, that if an Employee's direct prior employer was either
Mechanical Technology, Inc. or Detroit Edison, such Employees prior service
(measured from his date of hire) with either Mechanical Technology, Inc. or
Detroit Edison shall be counted as service for purposes of this Plan.
Options shall vest as follows.
(a) If an Employee has completed 12 months of continuous service as of the
date of the option grant, such Employee shall immediately be 20%
vested in the Options granted. If an Employee has not completed 12
months of continuous service as of the date of Option grant, he shall
become 20% vested in his Options once he has completed twelve months
of continuous service.
(b) An additional 20% of Options shall vest on the first 12 month
anniversary from the date of original Option grant.
(c) An additional 20% of Options shall vest on the second 12 month
anniversary from the date of original Option grant.
(d) An additional 20% of Options shall vest on the third 12 month
anniversary from the date of original Option grant.
(e) An additional 20% of Options shall vest on the fourth 12 month
anniversary from the date of original Option grant.
(f) All Options originally granted shall become immediately vested and
exercisable in the event of the sale of all or substantially all of
the Company's assets, or in the event of the sale of all or
substantially all of the Company's Class A membership interests.
3
<PAGE>
(g) All vested options shall become immediately exercisable in the event
the Company's Class A membership interests become publicly traded.
(h) Notwithstanding sub-paragraphs (a) through (e) above, Options granted
to Managers, shall vest as follows:
(1) 50% of Options granted to Managers shall vest immediately upon
grant.
(2) An additional 25% of Options granted to Managers shall vest 12
months following grant.
(3) An additional 25% of Options granted to Managers shall vest 24
months following date of grant.
Options granted under this Agreement shall automatically expire, and be
null and void, ten (10) years after the date of grant, except in the death of an
Employee.
In the event that an Employee's employment shall be terminated for any
reason except death, any Options held by the affected Employee, and exercisable,
must be exercised, if at all, within a period of one (1) month following any
such termination. Any Options outstanding and not exercised within such one (1)
month period shall become void. In no event shall this one (1) month period be
in addition to the ten (10) year option periods described in the paragraph
immediately preceding,
In the event of the death of an Employee while holding Options which were
exercisable on the date of death, the estate or beneficiary of such Employee
shall have the right to exercise any such outstanding Options for a period of
one (1) year following death, even if such extended exercise period extends
beyond the ten (10) year option period. The Options granted by this agreement
shall not be transferable by the Employee other than by will or the laws of
descent and distribution.
Consultants. Options shall be exercisable by Consultants only after such
-----------
Options have vested. Furthermore, no options may be exercised, even if vested,
prior to July 1, 2000, except as provided in sub-paragraphs (d) and (e) below.
Options shall vest as follows:
(a) One-third (1/3) of the Options shall vest upon the expiration of
Consultant's initial contract term.
(b) An additional one-third (1/3) of the Options shall vest on the first
12 month anniversary of the expiration of the initial contract term.
(c) The remaining one-third (1/3) of Options shall vest on the second 12
month anniversary of the expiration of the initial contract term.
4
<PAGE>
Options shall vest in accordance with the foregoing schedule regardless of
whether Consultant's initial contract terminates prior to the expiration of the
contract term or whether Consultant's contract is renewed. Vesting, however, is
subject to and contingent upon Consultant complying with the non-compete
obligations set forth in his/her consulting contract. Additionally, should
Consultant, at any time, provide services for, or work for a competing company,
then all outstanding options, whether vested or not, become immediately null and
void. If for any reason Consultant does not complete the contracted work as is
evident by Consultant receiving less than the original contracted revenue, then
the awarded options will be proportionately reduced to reflect the same
percentage as cash paid versus original contract revenue.
(d) Options originally granted shall become immediately vested and
exercisable in the event of the sale of all or substantially all of
the Company's assets, or in the event of the sale of all or
substantially all of the Company's Class A membership interests.
(e) All vested options shall become immediately exercisable in the event
the Company's Class A membership interests become publicly traded.
Options granted under this Agreement shall automatically expire, and be
null and void, five (5) years after the date of grant, except in the death of a
Consultant.
In the event of the death of a Consultant while holding Options which were
exercisable on the date of death, the estate or beneficiary of such Consultant
shall have the right to exercise any such outstanding Options for a period of
one (1) year following death, even if such extended exercise period extends
beyond the five (5) year option period. The Options granted by this agreement
shall not be transferable by the Consultant other than by will or the laws of
descent and distribution.
HOW OPTIONS ARE EXERCISABLE
An Employee, Consultant or his/her estate or beneficiary shall exercise the
Options granted by this agreement by written notice to the Company, which notice
shall specify the number of Class B membership interests to be purchased, and
which shall be accompanied by a check in full payment of the option price for
such Class B membership interests. Until such payment, an Employee, Consultant
or his/her estate or beneficiary shall have no rights in the optioned Class B
membership interests.
Until such time as the Company's membership interests or stock is publicly
traded or until such time that the board of managers amend this agreement, the
Employee and Consultant agrees that all interests purchased by him/her, his/her
estate or beneficiary under the Plan are
5
<PAGE>
acquired for investment and not for distribution. The Employee and Consultant
also agrees that any notice of exercise of the Option shall become accompanied
by a written representation, signed by the Employee and/or Consultant, to that
effect.
If the Company ever commences a public offering of its securities, it is
likely the Company's membership interests will be reclassified into shares of
common stock. Such reclassification will be structured so that Employee's
and/or Consultant's percentage of ownership or interest in the Company is not
diluted. Employees and Consultants also understand that should the Company's
membership interests or stock become publicly traded, there may be certain
restrictions placed on the sale of interests held by Employees and/or
Consultants, and other insiders, for a period of up to one year or longer, as
determined by the underwriter of any such transaction.
Employees and Consultants further understand that neither the Company, its
officers, nor its board of managers can guarantee or promise that the Company's
membership interests or stock will ever be registered or publicly traded.
Additionally, there may never be a market for any such Company membership
interests or stock, and that such Company membership interests or stock may be
unmarketable.
The Company shall have no duty or obligation to repurchase any or all of
its outstanding Class B membership interests.
CONTINUED SERVICE
Employees. Employee, in consideration of the granting of Options to
---------
him/her, agrees that he/she will continue to render services to the Company
except as he/she may be prevented from doing so by death, disability,
retirement, or termination.
Nothing in the Plan shall be deemed to confer to an Employee any guaranteed
right to continue to be employed by the Company, or interfere in any way with
the right of the Company to terminate his/her employment, as provided by the by-
laws of the Company or as provided by law.
Consultants. Nothing in the Plan shall be deemed to confer to a Consultant
-----------
any guaranteed right to continue to be under contract by the Company, or
interfere in any way with the right of the Company to terminate his/her
contract, as provided by the by-laws of the Company or as provided by law.
TAX EFFECTS
Employees and Consultants understand that there may be both federal and
state income tax consequences associated with the exercise of the Options
granted by the Plan, including withholding requirements. Employees acknowledge
that they have conferred with their
6
<PAGE>
respective counsel regarding any and all such tax consequences, and that in no
event shall Company be liable or responsible for any such tax liability.
GOVERNING LAW
The Plan shall be governed by the law of the State of New York.
IN WITNESS WHEREOF, Corporation has caused this agreement to be executed on
the date of first above written.
Plug Power, L.L.C.
By: /s/ Gary Mittleman
-----------------------------------
Gary Mittleman
President Chief Executive Officer
7
<PAGE>
Exhibit A
Stock Option Plan
Grant Option
Employee Name Date Share Price
- ------------- ----- -----------
ACKER, WILLIAM 02/27/98 $1.00
ACKER, WILLIAM 01/18/99 $5.00
ACKER, WILLIAM 10/01/97 $1.00
ACKERNECT, JON 01/11/99 $5.00
AGEN, CHRISTOPHER 05/17/99 $6.67
ALLEN, GEORGE 01/22/99 $5.00
ALVARO, ROBERT 02/18/98 $1.00
ALVARO, ROBERT 01/18/99 $5.00
ANTONELLI, GARY D. 10/01/97 $1.00
ANTONELLI, GARY D. 01/18/99 $5.00
AUSTIN, DOUG 12/21/98 $5.00
BARCOMB, CARLTON 03/29/99 $6.67
BARD, GREG 11/23/98 $5.00
BARROR, CHRISTOPHER 02/18/99 $6.67
BEBB, DAVID 07/14/98 $1.00
BEBB, DAVID 01/18/99 $5.00
BENNER, RONALD 02/22/99 $6.67
BETZ, BILL 06/22/98 $1.00
BETZ, BILL 01/18/98 $5.00
BISCEGLIA, BRYAN 03/23/98 $1.00
BISCEGLIA, BRYAN 01/18/99 $5.00
BISCHOFF, TOM 04/21/99 $6.67
BLY, JEFFREY 11/23/98 $5.00
BOICE, HAROLD 03/15/99 $6.67
BOILARD, JOSEPH 09/14/98 $5.00
BOILARD, JOSEPH 01/18/99 $5.00
BOMBARD, DENISE 04/05/99 $6.67
BOUCHEY, DARCY 03/08/99 $6.67
BOWEN, JOHN 10/06/98 $5.00
BOWEN, JOHN 01/18/99 $5.00
BOYER, JEFF 08/06/98 $5.00
BOYER, JEFF 01/18/99 $5.00
BREITENSTEIN, ADRIAN 06/07/99 $6.67
BROWNELL, ANDREW 04/19/99 $6.67
BRUCK, DANIEL 03/29/99 $6.67
BRUNNER, ADAM 10/01/97 $1.00
BRUNNER, ADAM 01/18/99 $5.00
BUCKNAM, ALLEN 02/27/98 $1.00
1
<PAGE>
BUCKNAM, ALLEN 10/01/97 $1.00
BUCKNAM, ALLEN 01/18/99 $5.00
BUDESHEIM, ERIC 10/01/97 $1.00
BUDESHEIM, ERIC 01/18/99 $5.00
BUESING, DONALD G. 10/01/97 $1.00
BUESING, DONALD G. 01/18/99 $5.00
BUONOME, RALPH 03/01/99 $6.67
BRUCKHARD, RUSSELL 02/15/99 $5.00
CANFIELD, FRANK 07/27/98 $5.00
CANFIELD, FRANK 01/18/99 $5.00
CARLSTROM, CHUCK 01/06/98 $1.00
CARLSTROM, CHUCK 04/29/98 $1.00
CARLSTROM, CHUCK 06/29/98 $1.00
CARLSTROM, CHUCK 01/18/99 $5.00
CERVENY, JOHN 10/01/97 $1.00
CERVENY, JOHN 01/18/99 $5.00
CHEN, JEFFREY 02/04/98 $1.00
CHEN, JEFFREY 06/29/98 $1.00
CHEN, JEFFREY 01/18/98 $5.00
CHOW, OSCAR 01/04/99 $5.00
CHUMMERS, LAURA 12/02/97 $1.00
CHUMMERS, LAURA 01/18/99 $5.00
CLARK, PAUL 01/18/99 $5.00
COLON, DON 02/22/99 $6.67
COMI, CHRIS 01/11/99 $5.00
CROGAN, JASON 06/15/98 $1.00
CROGAN, JASON 01/18/99 $5.00
CRONIN, J. CHARLES 04/29/98 $1.00
CRONIN, J. CHARLES 01/18/99 $5.00
CROSIER, JENNIFER 12/14/98 $5.00
CURRY, JOHN 04/26/99 $6.67
CUSACK, MATTHEW J. 10/01/97 $1.00
CUSACK, MATTHEW J. 01/18/99 $5.00
CYPHERS, TAMARA 05/24/99 $6.67
DANNEHEY, CHRISTOPHER 04/21/98 $1.00
DANNEHEY, CHRISTOPHER 01/18/99 $5.00
DEAN, ROBERT 02/22/99 $6.67
DEMBROSKY, DANA 03/02/98 $1.00
DEMBROSKY, DANA 01/18/99 $5.00
DEMIRCI, OSMAN 04/05/99 $6.67
DHAR, MANMOHAN 05/14/99 $6.67
DHAR, MANMOHAN 02/27/98 $1.00
DHAR, MANMOHAN 06/29/98 $1.00
DHAR, MANMOHAN 10/01/97 $1.00
2
<PAGE>
DHAR, MANMOHAN 01/18/99 $5.00
DISORDA, STEVE 01/05/98 $1.00
DISORDA, STEVE 01/18/99 $5.00
DORMOND, LOUIS 03/01/99 $6.67
DYNAN, DAVE 03/01/99 $6.67
EARLE, GEORGE 03/01/99 $6.67
EDISON DEVELOPMENT CORP. 07/10/97 $1.00
EDISON DEVELOPMENT CORP. 07/16/98 $5.00
EISMAN, GLENN 06/15/98 $1.00
EISMAN, GLENN 07/31/98 $5.00
EISMAN, GLENN 01/18/99 $5.00
EISMAN, GLENN 05/14/99 $6.67
ENFIELD, DARRYL 03/30/98 $1.00
ENFIELD, DARRYL 01/18/99 $5.00
ERNST, WILLIAM D. 10/01/97 $1.00
ERNST, WILLIAM D. 01/18/99 $5.00
ETHIER, ANNE 10/19/98 $5.00
ETHIER, ANNE 01/18/99 $5.00
EVANS, GLENN 01/19/98 $1.00
EVANS, GLENN 01/18/99 $5.00
FADELEY, SCOTT 03/16/98 $1.00
FADELEY, SCOTT 01/18/99 $5.00
FARKASH, RON 02/01/99 $5.00
FARRELL, WILLIAM 04/05/99 $6.67
FEDOROWICZ, GARTH 12/21/98 $5.00
FIORINI, LOU 03/08/99 $6.67
FOGARTY, JOHN 06/29/98 $1.00
FOGARTY, JOHN 01/18/99 $5.00
FRAKES, TIMOTHY 03/29/99 $6.67
GALEANO, ANA-MARIA 10/28/98 $5.00
GALEANO, ANA-MARIA 01/18/99 $5.00
GALEANO, ANA-MARIA 03/24/98 $1.00
GALEANO, JULIE 06/08/98 $1.00
GALEANO, JULIE 01/18/99 $5.00
GARVEY, CHING-HONG 01/11/99 $5.00
GECK, FRIEDRICH 06/07/99 $6.67
GENC, SUAT 05/31/99 $6.67
GIERISCH, GEORGIANA 12/22/97 $1.00
GIERISCH, GEORGIANA 01/18/99 $5.00
GLICKMAN, BARRY 04/26/99 $6.67
GLYNN, ROBERT 03/23/98 $1.00
GRAHAM, DAVID 10/20/97 $1.00
GRAHAM, DAVID 01/18/99 $5.00
HAACK, DAVID 03/29/99 $6.67
3
<PAGE>
HALLUM, RYAN 03/01/99 $6.67
HAMM, ROBERT L. 10/01/97 $1.00
HAMM, ROBERT L. 01/18/99 $5.00
HARRINGTON, MARSHA 10/01/97 $1.00
HARRINGTON, MARSHA 01/18/99 $5.00
HARRIS, CHARLES 02/17/98 $1.00
HARRIS, CHARLES 01/18/99 $5.00
HEBERT, DAVID 11/16/98 $5.00
HOCKEY, BERNICE 03/22/99 $6.67
HOEHN, JAMES 03/15/99 $6.67
HOYT, ROBERT 04/26/98 $1.00
HOYT, ROBERT 01/18/99 $5.00
HUANG, WENHUA 10/01/97 $1.00
HUANG, WENHUA 01/18/99 $5.00
HULETT, JOE 06/07/99 $6.67
HULETT, SCOTT 05/24/99 $6.67
JAMES, DAVID 12/14/98 $5.00
JAMES, DAVID 01/18/99 $5.00
JOHNSON, DARIC 03/29/99 $6.67
JOHNSON, KATHLEEN 03/29/99 $6.67
JONES, DANIEL O. 10/01/97 $1.00
JONES, DANIEL O. 01/18/99 $5.00
JOURDIN, ALLAN 01/28/99 $5.00
KAN, WEI-PING 03/29/99 $6.67
KARUPPAIAH, CHOCKKALINGHAM 10/27/97 $1.00
KARUPPAIAH, CHOCKKALINGHAM 01/18/99 $5.00
KELLY, ALYSSON 03/02/98 $1.00
KELLY, ALYSSON 01/18/99 $5.00
KELLY, AMI 03/02/98 $1.00
KELLY, AMI 01/18/99 $5.00
KILCHER, JOHN 04/27/98 $1.00
KILCHER, JOHN 01/18/99 $5.00
KIRK, PETER 05/17/99 $6.67
KNAPP, KARL 10/01/97 $1.00
KNAPP, KARL 01/18/99 $5.00
KODESCH, STEVEN 04/19/99 $6.67
KRALICK, JAMES 02/09/98 $1.00
KRALICKM JAMES 01/18/99 $5.00
KRASTINS, KENNETH 09/28/98 $5.00
KRASTINS, KENNETH 01/18/99 $5.00
KUECKELS, ERIC 04/08/99 $6.67
LACY, ROBERT 05/11/98 $1.00
LACY, ROBERT 01/18/99 $5.00
LAPIETRO, ROBERT 06/14/99 $6.67
<PAGE>
LARGENT, BILL 05/17/99 $6.67
LATTIMORE, MAURIE 11/16/98 $5.00
LATTIMORE, MAURIE 01/18/99 $5.00
LAW, JOHN 03/30/98 $1.00
LAW, JOHN 06/29/98 $1.00
LAW, JOHN 01/18/99 $5.00
LAW, JOHN 05/14/98 $6.67
LEE, MELANIE 04/29/99 $6.67
LEET, RANDY 11/13/97 $1.00
LEET, RANDY 01/18/99 $5.00
LEONARD, TINA S. 10/01/97 $1.00
LEONARD, TINA S. 10/28/98 $5.00
LEONARD, TINA S. 01/18/99 $5.00
LETKO, JOHN 02/01/99 $5.00
LEWIS, PHILIP 10/01/97 $1.00
LEWIS, PHILIP 01/18/99 $5.00
LOVE, JOHN 02/23/98 $1.00
LOVE, JOHN 01/18/99 $5.00
LYONS, SEAN 11/23/98 $5.00
MACCUE, SANDRA E. 10/01/97 $1.00
MACCUE, SANDRA E. 01/18/99 $5.00
MACCUE, SANDY 04/19/99 $6.67
MADDALONI, RICHARD E. 10/01/97 $1.00
MADDALONI, RICHARD E. 01/18/99 $5.00
MARONCELLI, MARK 06/07/99 $6.67
MARSHALL, DAVID 03/29/99 $6.67
MARVIN, RUSSEL 01/12/98 $1.00
MARVIN, RUSSEL 01/12/98 $1.00
MAS, CARL 06/07/99 $6.67
MASTERSON, NICOLE 04/05/99 $6.67
MATLOCK, RICHARD 03/23/98 $1.00
MATLOCK, RICHARD 01/18/99 $5.00
MATTICE, SHEILA 05/17/99 $6.67
MAYNARD, WILLIAM B. 10/01/97 $1.00
MAYNARD, WILLIAM B. 01/18/99 $5.00
MCARDLE, BILL 05/24/99 $6.67
MCELROY, JAMES 02/15/99 $5.00
MCNAMEE, GEORGE - BOARD 07/10/97 $1.00
MCNAMEE, GEORGE - BOARD 07/16/98 $5.00
MEASE, KEVIN 01/11/99 $5.00
MEIER, GARY 12/21/98 $5.00
MEREDITH, JON 01/18/99 $5.00
MIGIRDITCH, GREG M. 10/01/97 $1.00
MIGIRDITCH, GREG M. 01/18/99 $5.00
<PAGE>
QUICK, ROBERT 08/10/98 $5.00
QUICK, ROBERT 01/18/99 $5.00
RATHBURN, ROBERT 03/30/98 $1.00
RATHBURN, ROBERT 01/18/99 $5.00
REMILLARD, MATTHEW 10/01/97 $1.00
REMILLARD, MATTHEW 01/18/99 $5.00
RHODES, THOMAS 10/01/97 $1.00
RHODES, THOMAS 01/18/99 $5.00
RIBSAMEN, FOSTER 02/10/98 $1.00
RIBSAMEN, FOSTER 01/18/99 $5.00
RICHARDSON, CURTIS 03/15/99 $6.67
ROBB, WALTER-BOARD 07/10/97 $1.00
ROBB, WALTER-BOARD 07/16/98 $5.00
ROBERTS, GRANT 02/17/98 $1.00
ROBERTS, GRANT 01/18/99 $5.00
ROBERTSON, RICHARD 05/04/98 $1.00
ROBERTSON, RICHARD 01/18/99 $5.00
ROBINSON, DAVID 07/27/98 $5.00
ROBINSON, DAVID 01/18/99 $5.00
ROCK, DEBRA 12/15/97 $1.00
ROCK, DEBRA 01/18/99 $5.00
RODRIGUEZ, DANIEL 02/22/99 $6.67
ROLLINS, DAVID 04/05/99 $6.67
ROSSI, EUGENE 12/14/98 $5.00
ROSSI, EUGENE 01/18/99 $5.00
RUSH, KENNETH 06/22/98 $1.00
RUSH, KENNETH 01/18/99 $5.00
SANDERSON, DEREK 05/26/99 $6.67
SANKEL, BRIAN 02/22/99 $6.67
SCHAFER, GUNTER 06/03/99 $6.67
SCHREIBER, DIANE 04/19/99 $6.67
SCOTT, BRUCE 03/30/98 $1.00
SCOTT, BRUCE 01/18/99 $5.00
SCOVELLO, FRANK 04/26/99 $6.67
SHAPIRO, CHANAN 07/13/98 $1.00
SHAPIRO, CHANAN 01/18/99 $5.00
SHERRY, JAMES 04/05/99 $6.67
SHERWIN, GREG 02/22/99 $6.67
SILER, DAVID N. 10/01/97 $1.00
SILER, DAVID N. 01/18/99 $5.00
SILVESTRI, GREG 06/14/99 $6.67
SKIDMORE, DUSTAN 05/18/99 $6.67
SKRZYCKE, DEAN 01/19/98 $1.00
SKRZYCKE, DEAN 01/18/99 $5.00
<PAGE>
MIKLAS, RICHARD 01/28/99 $5.00
MILLER, MATTHEW 05/04/98 $1.00
MILLER, MATTHEW 01/18/99 $5.00
MITTLEMAN, GARY 06/28/97 $1.00
MITTLEMAN, GARY 07/16/98 $5.00
MOUSAW, JOHN 10/29/98 $5.00
MOUSAW, JOHN 01/18/99 $5.00
MUELLER, JOHN 01/25/99 $5.00
NELSON, MILTON 09/10/98 $5.00
NELSON, MILTON 01/18/99 $5.00
NELSON, CAROL 03/22/99 $6.67
NESTLER, EDWARD JR. 04/06/98 $1.00
NESTLER, EDWARD JR. 01/18/99 $5.00
NESTLER, EDWARD SR. 10/01/97 $1.00
NESTLER, EDWARD SR. 01/18/99 $5.00
NEUMANN, DAVID 10/28/98 $5.00
NEUMANN, DAVID 12/15/97 $1.00
NEUMANN, DAVID 01/18/99 $5.00
NIEDZIEJKO, EDWARD 05/24/99 $6.67
NOLAN, JOHN 04/26/99 $6.67
O'HARA, SCOTT 06/10/99 $6.67
OKO, URIEL 06/08/98 $1.00
OKO, URIEL 01/18/99 $5.00
OYEROKUN, FOLUSHO 01/12/98 $1.00
OYEROKUN, FOLUSHO 01/18/99 $5.00
PATTI, DAVID 02/15/99 $5.00
PESCHKE, NORM 12/07/98 $5.00
PESCHKE, NORM 01/18/99 $5.00
PICCIRILLO, NICK 11/23/98 $5.00
PICCIRILLO, NICK 01/18/99 $5.00
PIMENTEL, CHARLES 04/12/99 $6.67
PITTS, LARRY 07/27/98 $5.00
PITTS, LARRY 01/18/99 $5.00
POMYKAI, MICHAEL 10/19/98 $5.00
POWER, ROBERT 08/10/98 $5.00
POWER, ROBERT 01/18/99 $5.00
PRESCOTT, GARNET 02/08/99 $5.00
PRESTIPINO, JOHN 07/27/98 $5.00
PRESTIPINO, JOHN 01/18/99 $5.00
PREVISH, TOM 07/01/98 $1.00
PREVISH, TOM 01/18/99 $5.00
PURNER, JEFF 01/18/99 $5.00
PUSTOLKA, MARK 02/22/99 $6.67
QUERRARD, DAVID 05/24/99 $6.67
6
<PAGE>
SMITH, DAVID 04/13/98 $1.00
SMITH, DAVID 01/18/99 $5.00
SMITH, DOUGLAS 02/08/99 $5.00
SPARGO, TRACY 04/12/99 $6.67
STANTON, ROBERT 03/02/98 $1.00
STANTON, ROBERT 01/18/99 $5.00
STERNLICHT, BENO-BOARD 07/10/97 $1.00
STERNLICHT, BENO-BOARD 07/16/98 $5.00
SUMIGRAY, WILLIAM P. 10/01/97 $1.00
SUMIGRAY, WILLIAM P. 01/18/99 $5.00
SUWALSKI, HENRY 03/22/99 $6.67
TANG, CHING-JEN 04/19/99 $6.67
THOMAS, MARK 06/14/99 $6.67
TOEPFER, TIM 01/25/99 $5.00
TOMSON, LOU 01/11/99 $5.00
TOMSON, LOU 05/14/99 $6.67
VANHEERTUM III, JOHN 10/01/97 $1.00
VANHEERTUM III, JOHN 01/18/99 $5.00
VARIN, ROGER 04/27/98 $1.00
VARIN, ROGER 01/18/99 $5.00
WARREN, DAVID 03/02/98 $1.00
WARREN, DAVID 01/18/99 $5.00
WHEELER, MARIE 05/24/99 $6.67
WHIPPLE, KATHRYN 03/16/98 $1.00
WHIPPLE, KATHRYN 01/18/99 $5.00
WHITE, ERIC 02/02/98 $1.00
WHITE, ERIC 07/07/98 $1.00
WHITE, ERIC 01/18/99 $5.00
WILSHIRE, SCOTT 03/08/99 $6.67
WINCHELL, JOHN 01/04/99 $5.00
WINSLOW, ALAN 07/30/98 $5.00
WINSLOW, ALAN 01/18/99 $5.00
WOOD, AMY 05/26/98 $1.00
WOOD, AMY 01/18/99 $5.00
WOOLLEY, DAN 01/13/99 $5.00
WU, YAOBANG 01/12/98 $1.00
WU, YAOBANG 01/18/99 $1.00
ZEMSKY, JEFF 01/18/99 $5.00
ZIELINSKI, WIESLAW 05/24/99 $6.67
MITTLEMAN, GARY 07/19/99 $11.00
CREWELL, GARY 07/26/99 $11.00
DAIGNEAULT, MARK 07/26/99 $11.00
HARDWICKE, TED 07/26/99 $11.00
TANGUAY, SCOTT 07/26/99 $11.00
8
<PAGE>
DAGOSTINO, ANTHONY 07/26/99 $11.00
SCRIVEN, TROY 07/26/99 $11.00
DLEO, JAMES 07/26/99 $11.00
MARE, TRAVIS 07/26/99 $11.00
SCHIMER, JAMIE 07/26/99 $11.00
TRAVER, ROB 07/26/99 $11.00
WHALEN, BRYAN 07/26/99 $11.00
POWER, DAN 07/26/99 $11.00
BAGSTAD, BRUCE 07/26/99 $11.00
HIERONYMI, MARTIN 07/26/99 $11.00
POWELL, PARKER 07/26/99 $11.00
BECKER, JAMIE 07/26/99 $11.00
BUELTE, STEVE 07/26/99 $11.00
LATORRE, MARIA 07/26/99 $11.00
BARKALOW, TOM 07/26/99 $11.00
VAINAUSKAS, PAUL 07/29/99 $11.00
SCHAFER, JENNIFER 08/02/99 $11.00
GOLIBER, JOHN 08/09/99 $11.00
KIRCHOFF, DAVID 08/09/99 $11.00
LEZBERG, ROBERT 08/11/99 $11.00
<PAGE>
PLUG POWER, L.L.C.
Exhibit B
Option
Director Name Grant Date Share Price Shares
- ------------- ---------- ----------- ------
Beno Sternlicht 07/10/97 $1.00 50,000
07/16/98 $5.00 10,000
George McNamee 07/10/97 $1.00 100,000
07/16/98 $5.00 10,000
Walter Robb 07/10/97 $1.00 50,000
$5.00 10,000
EDC 07/10/97 $1.00 200,000
07/16/98 $5.00 30,000
<PAGE>
POWER PLUG, L.L.C.
Exhibit C
Option
Consultant Grant Date Share Price Shares
- ---------- ---------- ----------- ------
Jim Mcelroy 02/15/99 $ 5.00 15,000
07/26/99 $11.00 6,000
Mike Walsh 07/26/99 $11.00 6,000
<PAGE>
FIRST AMENDMENT TO
SECOND AMENDMENT AND RESTATEMENT
OF THE
MEMBERSHIP OPTION PLAN
PLUG POWER, L.L.C.
This First Amendment to Second Amendment and Restatement of the Membership
Option Plan (the "Option Plan") is effective as of first day of October, 1999,
and amends the Option Plan, dated as of February 15, 1999;
WHEREAS, Plug Power, L.L.C. (the "Company") desires to amend the Option
Plan to provide for the ability of the Company to vary the terms of vesting and
exercisability of options granted under the Option Plan;
WHEREAS, at a meeting of the Members of the Company held on October 1,
1999, at which all Members were present, either by person or by telephone, and
acting with full authority, the Members agreed to amend the Option Plan, as set
forth below;
NOW, THEREFORE, the Option Plan is hereby amended as follows:
1. On page 5 of the Option Plan, before the title "How Options Are
Exercisable", insert the following sentence in a new paragraph:
"Notwithstanding anything to the contrary provided herein, the Company may, at
its option, provide for different time limitations for vesting and
exercisability of Options by written agreement with the grantee of such
options."
2. The remainder of the Option Plan shall continue in full force and effect.
<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 5,671,191 shares of Common Stock, par value $.01 per
share (the "Registered Shares"), which the Company may issue pursuant to its
1997 Membership Option Plan and 1999 Stock Option and Incentive Plan, each as
amended (the "Plans").
As counsel for the Company, we have examined a copy of the Plans 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
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT 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
