Plug Power (PLUG) 8-KEntry into a Material Definitive Agreement

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549 

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): November 7, 2024

Plug Power Inc.

(Exact name of registrant as specified in its charter) 

Registrant’s telephone number, including area code: (518) 782-7700

N/A

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below): 

¨  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) 

¨  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) 

¨  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) 

¨  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) 

Securities registered pursuant to 12(b) of the Act:

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter). 

Emerging growth company ¨

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨

Item 1.01 Entry into a Material Definitive Agreement.

As previously disclosed, Plug Power Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Original Agreement”), dated January 17, 2024, as amended by Amendment No. 1 to the Original Agreement, dated February 23, 2024 (“Amendment No. 1” and together with the Original Agreement, the “Sales 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 gross sales 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 November 7, 2024, the Company and B. Riley entered into Amendment No. 2 to the Sales Agreement (“Amendment No. 2”) to increase the aggregate gross sales price of shares of Common Stock available for issuance under the Sales Agreement. As of November 7, 2024, the Company had offered and sold 219,835,221 shares of Common Stock having an aggregate gross sales price of approximately $677,245,001 under the Sales Agreement. Amendment No. 2 increased the aggregate gross sales price of Common Stock the Company may offer and sell pursuant to the Sales Agreement by approximately $375,171,995 to $1 billion.

In addition, Amendment No. 2 provides that from and after the date hereof, through and including February 7, 2025, the Company will have 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 up to $11,000,000 (the “Maximum Commitment Advance Purchase Amount”), and to purchase in principal transactions (including any shares sold by B. Riley in agency transactions) in any calendar week up to $55,000,000 (the “Maximum Commitment Advance Purchase Amount Cap”), subject to certain conditions. If the Company’s market capitalization is less than $1,000,000,000 on and after February 8, 2025, 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 Company’s right to direct B. Riley to act on a principal basis and purchase from the Company the Maximum Commitment Advance Purchase Agreement under the Sales Agreement was extended from July 17, 2025 to December 31, 2025 under Amendment No. 2.

The Company has agreed to reimburse B. Riley for its legal expenses in an amount not to exceed $25,000 in connection with Amendment No. 2.

The material terms and conditions of the Sales Agreement otherwise remain unchanged.

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, 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 and Amendment No. 2 to the prospectus supplement dated and filed with the SEC pursuant to Rule 424(b) under the Securities Act on November 7, 2024.

The foregoing description of Amendment No. 2 does not purport to be complete and is qualified in its entirety by reference to the full text of Amendment No. 2, 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 and a copy of the full text of Amendment No. 1 was filed as Exhibit 1.1 to the Company’s Current Report on Form 8-K with the SEC on February 23, 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 9.01. Financial Statements and Exhibits.

(d) Exhibits.

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.