Plug Power Inc 8-K, filed Feb 23, 2024
Plug Power Inc (PLUG)
About this 8-K
Plug Power Inc filed this 8-K on February 23, 2024.
Items reported
- Item 1.01: Entered into a material agreement
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed, on January 17, 2024, Plug Power Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Original Agreement”) with B. Riley Securities, Inc. (“B. Riley”), pursuant to which the Company may, from time to time, offer and sell shares of the Company’s common stock, par value $0.01 per share (“Common Stock”), through or to B. Riley, as sales agent or principal, having an aggregate offering price of up to $1.0 billion in an “at the market offering” as defined in Rule 415 promulgated under the Securities Act of 1933, as amended (the “Securities Act”). On February 23, 2024, the Company and B. Riley entered into Amendment No. 1 to the Original Agreement (the “Amendment” and, together with the Original Agreement, the “Sales Agreement”) to increase the aggregate offering price of shares of Common Stock available for issuance under the Original Agreement. As of February 23, 2024, the Company had offered and sold 77,417,069 shares of Common Stock having an aggregate offering price of approximately $302,073,006 under the Original Agreement. The Amendment increased the aggregate offering price of common stock the Company may offer and sell pursuant to the Sales Agreement by $302,073,006 to $1 billion.
In addition, the Amendment increased the number of shares of Common Stock that the Company has the right, but not the obligation, from time to time at its sole discretion, to direct B. Riley on any day to act on a principal basis and purchase from the Company from $10,000,000 to $11,000,000 (the “Maximum Commitment Advance Purchase Amount”), and increased the aggregate amount of shares of Common Stock that the Company may direct B. Riley to purchase as principal in principal transactions (including any shares sold by B. Riley in agency transactions) in any calendar week from $30,000,000 to $55,000,000 (the “Maximum Commitment Advance Purchase Amount Cap”).
On and after June 1, 2024, so long as the Company’s market capitalization is no less than $1,000,000,000, the Maximum Commitment Advance Purchase Amount shall remain $11,000,000 and the Maximum Commitment Advance Purchase Amount Cap shall remain $55,000,000. If the Company’s market capitalization is less than $1,000,000,000 on and after June 1, 2024, the Maximum Commitment Advance Purchase Amount shall be decreased to $10,000,000 and the Maximum Commitment Advance Purchase Amount Cap shall be decreased to $30,000,000.
The material terms and conditions of the Sales Agreement otherwise remain unchanged.
B. Riley will be entitled to receive from the Company a commission in an amount (i) up to 3.0% of the gross sales price per Share sold through it as agent in agency transactions and (ii) equal to 5.0% of the purchase price per Share sold to B. Riley, as principal in principal transactions. The Company has agreed to provide B. Riley with customary indemnification and contribution rights. The Company will also reimburse B. Riley for certain specified expenses as set forth in the Sales Agreement.
The Shares will be issued pursuant to the Company’s automatic shelf registration statement on Form S-3 (File No. 333- 265488), which became effective upon filing with the SEC on June 8, 2023, the prospectus supplement, dated and filed with the SEC pursuant to Rule 424(b) under the Securities Act on January 17, 2024, and Amendment No. 1 to the prospectus supplement dated and filed with the SEC pursuant to Rule 424(b) under the Securities Act on February 23, 2024.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is filed herewith as Exhibit 1.1 and incorporated by reference herein. A copy of the full text of the Original Agreement was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K with the SEC on January 17, 2024. A copy of the opinion of Goodwin Procter LLP with respect to the validity of the shares of Common Stock that may be offered and sold pursuant to the Sales Agreement is filed herewith as Exhibit 5.1.
This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy any securities of the Company, nor shall there be any sale of such securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.
Item 8.01 Other Events.
The Company filed a prospectus supplement pursuant to Rule 424(b)(5) under the Securities Act with the Securities and Exchange Commission (the “SEC”) on January 17, 2024 registering the shares of Common Stock that may be sold pursuant to the Original Agreement. As filed, the prospectus supplement inadvertently listed an incorrect registration number due to a filing error. This Current Report on Form 8-K is being filed to correct the registration number under which the prospectus supplement was filed by the Company. The correct registration number is 333-265488.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit Number |
Title | |
| 1.1 | Amendment No. 1 to At Market Issuance Sales Agreement, dated February 23, 2024, by and between Plug Power Inc. and B. Riley Securities, Inc. | |
| 5.1 | Opinion of Goodwin Procter LLP | |
| 23.1 | Consent of Goodwin Procter LLP (included in Exhibit 5.1) | |
| 104 | Cover Page Interactive Data File (embedded with the Inline XBRL document). |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Plug Power Inc. | ||
| Date: February 23, 2024 | By: | /s/ Paul Middleton |
| Name: Paul Middleton | ||
| Title: Chief Financial Officer | ||
Exhibit 1.1
AMENDMENT NO. 1 TO AT MARKET ISSUANCE SALES AGREEMENT
February 23, 2024
B. Riley Securities, Inc.
299 Park Avenue, 21st Floor
New York, NY 10171
Ladies and Gentlemen:
Plug Power Inc., a Delaware corporation (the “Company”), and B. Riley Securities, Inc. (the “Agent”), are parties to that certain At Market Issuance Sales Agreement dated January 17, 2024 (the “Original Agreement”). All capitalized terms not defined herein shall have the meanings ascribed to them in the Original Agreement. The Company and Agent desire to amend the Original Agreement as set forth in this Amendment No. 1 thereto (this “Amendment”) as follows:
1. As of the date hereof, the references to “Prospectus Supplement” shall refer to the prospectus supplement relating to the offering and sale of the Shares filed by the Company with the Commission pursuant to Rule 424(b) on January 17, 2024, as amended by the prospectus supplement filed by the Company on the date hereof, in the form furnished by the Company to the Agent in connection with the offering of the Placement Shares.
2. Schedule 2(b) of the Original Agreement is amended to add the following definition:
“Increased Maximum Commitment Advance Purchase Amount” means $11,000,000; provided however only one Commitment Advance Purchase may be requested per day. Notwithstanding the forgoing, the aggregate Commitment Advance Purchases in a calendar week, inclusive of any sales of Agency Placement Shares in Agency Transactions pursuant to the At Market Issuance Sales Agreement, shall not exceed $55,000,000. For the avoidance of doubt, the maximum principal obligation of B. Riley hereunder is conditioned only upon the issuance of the Principal Placement Shares in accordance with the contractual terms of this provision and shall accrete over time with each Commitment Advance Notice issued under this Agreement such that at any instance in time under this Agreement the total accrued obligations of B. Riley as of any Commitment Advance Notice Date is the aggregate sum of all Commitment Advance Purchases made by B. Riley hereunder less the total amount of Principal Placement Shares sold by B. Riley prior to such date.
3. As of the date hereof, through and including May 31, 2024 and subject to Section 4 below, all references to the Maximum Commitment Advance Purchase Amount shall mean the Increased Maximum Commitment Advance Purchase Amount.
4. On and after June 1, 2024, so long as the Company has a Market Capitalization (defined below) of not less than $1,000,000,000 at the applicable Commitment Advance Notice Date, all references to the Maximum Commitment Advance Purchase Amount shall mean the Increased Maximum Commitment Advance Purchase Amount. If at any applicable Commitment Advance Notice Date on and after June 1, 2024, the Company has a Market Capitalization of less than $1,000,000,000, the Company shall instead be subject to the Maximum Commitment Advance Purchase Amount unless and until such time as the Company’s Market Capitalization is not less than $1,000,000,000.
For purposes hereof, “Market Capitalization” means, as of any applicable Commitment Advance Notice Date, the product of (a) the total number of issued and outstanding shares of Common Stock (exclusive, for the avoidance of doubt, of any shares of Common Stock issuable upon the exercise of options or warrants or conversion of any convertible securities), multiplied by the Closing Sale Price on the Trading Day immediately prior to the applicable Commitment Advance Notice Date.
5. As of the date hereof, each of the Maximum Amount and the Aggregate Commitment Advance Amount shall mean $1,000,000,000, exclusive of any sales pursuant to the Original Agreement prior to the date hereof.
6. All references to “January 17, 2024” set forth in Schedule 1, Schedule 2(b) and Exhibit 7(l) of the Original Agreement are revised to read “January 17, 2024 (as amended by Amendment No. 1, dated February 23, 2024)”.
7. The Company will pay fees and disbursements of counsel to the Agent of up to $25,000 incurred in connection with this Amendment and other related documents.
8. Except as specifically set forth herein, all other provisions of the Original Agreement shall remain in full force and effect.
9. This Amendment, together with the Original Agreement (including all exhibits attached thereto), constitutes the entire agreement and supersedes all other prior and contemporaneous agreements and undertakings, both written and oral, among the parties hereto with regard to the subject matter hereof. Neither this Amendment nor any term hereof may be amended except pursuant to a written instrument executed by the Company and the Agent. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable as written by a court of competent jurisdiction, then such provision shall be given full force and effect to the fullest possible extent that it is valid, legal and enforceable, and the remainder of the terms and provisions herein shall be construed as if such invalid, illegal or unenforceable term or provision was not contained herein, but only to the extent that giving effect to such provision and the remainder of the terms and provisions hereof shall be in accordance with the intent of the parties as reflected in this Amendment. All references in the Original Agreement to the “Agreement” shall mean the Original Agreement as amended by this Amendment; provided, however, that all references to “date of this Agreement” in the Original Agreement shall continue to refer to the date of the Original Agreement.
10. THIS AMENDMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS. THE COMPANY AND THE AGENT EACH HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AMENDMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS SITTING IN THE CITY OF NEW YORK, BOROUGH OF MANHATTAN, FOR THE ADJUDICATION OF ANY DISPUTE UNDER OR IN CONNECTION WITH THIS AMENDMENT OR ANY TRANSACTION CONTEMPLATED HEREBY, AND HEREBY IRREVOCABLY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER. EACH PARTY HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO PROCESS BEING SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING BY MAILING A COPY THEREOF (CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED) TO SUCH PARTY AT THE ADDRESS IN EFFECT FOR NOTICES TO IT UNDER THIS AMENDMENT AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE GOOD AND SUFFICIENT SERVICE OF PROCESS AND NOTICE THEREOF. NOTHING CONTAINED HEREIN SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.
12. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery of an executed amendment by one party to the other may be made by facsimile transmission or electronic transmission (e.g., PDF).
[Remainder of Page Intentionally Blank]
If the foregoing correctly sets forth the understanding between the Company and the Agent, please so indicate in the space provided below for that purpose, whereupon this Amendment shall constitute a binding amendment to the Original Agreement between the Company and the Agent.
| Very truly yours, | |||
| PLUG POWER, INC. | |||
| By: | |||
| Name: Paul B. Middleton | |||
| Title: Chief Financial Officer | |||
| ACCEPTED as of the date first-above written: | |||
| B. RILEY SECURITIES, INC. | |||
| By: | |||
| Name: Patrice McNicoll | |||
| Title: Co-Head of Investment Banking | |||
[Signature Page to Amendment No. 1 to Sales Agreement]
Exhibit 5.1
 |
Goodwin Procter LLP
February 23, 2024 |
Plug Power Inc.
968 Albany-Shaker Road
Latham, NY 12110
Re: Securities Registered under Registration Statement on Form S-3
We have acted as counsel to you in connection with your filing of a Registration Statement on Form S-3 (File No. 333-265488) (as amended or supplemented, the “Registration Statement”) filed on June 8, 2022 with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of the offering by Plug Power Inc., a Delaware corporation (the “Company”), of any combination of securities of the types specified therein. The Registration Statement became effective upon filing with the Commission on June 8, 2022. Reference is made to our opinion letter dated June 8, 2022 and included as Exhibit 5.1 to the Registration Statement. We are delivering this supplemental opinion letter in connection with the prospectus supplement filed on January 17, 2024 by the Company with the Commission pursuant to Rule 424 under the Securities Act, as amended by Amendment No. 1 to the prospectus supplement filed on February 23, 2024 by the Company with the Commission pursuant to Rule 424 under the Securities Act (collectively, the “Prospectus Supplement”). The Prospectus Supplement relates to the offering by the Company of up to $1,000,000,000 in aggregate offering price of shares (the “Shares”) of the Company’s common stock, par value $0.01 per share (“Common Stock”), covered by the Registration Statement. The Shares are being offered and sold by the sales agent named in, and pursuant to, the At Market Issuance Sales Agreement, dated as of January 17, 2024, as amended on February 23, 2024, between the Company and such sales agent.
We have reviewed such documents and made such examination of law as we have deemed appropriate to give the opinion set forth below. We have relied, without independent verification, on certificates of public officials and, as to matters of fact material to the opinion set forth below, on certificates of officers of the Company.
For purposes of the opinion set forth below, we have assumed that the Shares are issued for a price per share equal to or greater than the minimum price authorized by the Company’s board of directors prior to the date hereof (the “Minimum Price”) and that no event occurs that causes the number of authorized shares of Common Stock available for issuance by the Company to be less than the number of then unissued Shares that may be issued for the Minimum Price.
For purposes of the opinion set forth below, we refer to the following as “Future Approval and Issuance”: (a) the approval by the Company’s board of directors (or a duly authorized committee of the board of directors) of the issuance of the Shares (the “Approval”) and (b) the issuance of the Shares in accordance with the Approval and the receipt by the Company of the consideration (which shall not be less than the par value of such Shares) to be paid in accordance with the Approval.
Plug Power Inc.
February 23, 2024
Page 2
The opinion set forth below is limited to the Delaware General Corporation Law.
Based on the foregoing, we are of the opinion that the Shares have been duly authorized and, upon Future Approval and Issuance, will be validly issued, fully paid and nonassessable.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Shares (the “Current Report”), which is incorporated by reference in the Registration Statement. We hereby consent to the filing of this opinion letter as an exhibit to the Current Report and its incorporation by reference and the reference to our firm in that report. In giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations thereunder.
| Very truly yours, | |
| /s/ GOODWIN PROCTER LLP | |
| GOODWIN PROCTER LLP |