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United States Securities and Exchange Commission Form

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United States Securities and Exchange Commission Form table of Contents UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K (Mark One) ☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the fiscal year ended December 31, 2020 ☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT For the transition period from to Commission file number: 1-34392 Plug Power Inc. (Exact Name of Registrant as Specified in Its Charter) Delaware 22-3672377 (State or other Jurisdiction (i.R.S. identification of incorporation or organization) number) Securities registered pursuant to Section 12(b) of the act: Title of Each Class Trading Symbol(s) Name of Each Exchange on Which Registered Common Stock, par value $.01 per share PluG the naSdaQ Capital Market 968 ALBANY SHAKER ROAD, LATHAM, NEW YORK 12110 (address of Principal executive offices, including Zip Code) (518) 782-7700 (Registrant’s telephone number, including area code) Securities registered pursuant to Section 12(g) of the Act: None indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities act. Yes ☐No ☒ indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the act. Yes ☐ no ☒ indicate by check mark whether the registrant (1) has filed all reports required to be filed by Sections 13 or 15(d) of the Securities exchange act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☐ no ☒ indicate by check mark whether the registrant has submitted electronically every interactive data File required to be submitted pursuant to Rule 405 of Regulation S-t (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☐ no ☒ indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and "emerging growth company" in Rule 12b-2 of the exchange act. large accelerated filer ☒ accelerated Filer ☐ non-accelerated filer ☐ Smaller reporting company ☐ 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. ☐ indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting under Section 404(b) of the Sarbanes-oxley act (15 u.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. Yes ☒ no ☐ indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the exchange act). Yes ☐ no ☒ the aggregate market value of the registrant’s voting and non-voting common stock held by non-affiliates of the registrant was approximately $2,733,184,540 based on the last reported sale of the common stock on the naSdaQ Capital Market on June 30, 2020, the last business day of the registrant's most recently completed second fiscal quarter. as of May 6, 2021, 568,317,504 shares of the registrant’s common stock were issued and outstanding. DOCUMENTS INCORPORATED BY REFERENCE none. table of Contents INDEX TO FORM 10-K Page PART I item 1. Business 8 item 1a. Risk Factors 14 item 1B. unresolved Staff Comments 31 item 2. Properties 31 item 3. legal Proceedings 31 item 4. Mine Safety disclosures 33 PART II item 5. Market for Registrant’s Common equity, Related Stockholder Matters and issuer Purchases of equity Securities 34 item 6. Selected Financial data 35 item 7. Management’s discussion and analysis of Financial Condition and Results of operations 36 item 7a. Quantitative and Qualitative disclosures about Market Risk 64 item 8. Financial Statements and Supplementary data 64 item 9. Changes in and disagreements with accountants on accounting and Financial disclosure 64 item 9a. Controls and Procedures 65 item 9B. other information 67 PART III item 10. directors, executive officers and Corporate Governance 67 item 11. executive Compensation 77 item 12. Security ownership of Certain Beneficial owners and Management and Related Stockholder Matters 101 item 13. Certain Relationships and Related transactions, and director independence 103 item 14. Principal accounting Fees and Services 104 PART IV item 15. exhibits, Financial Statement Schedules 104 item 16. Form 10-K Summary 109 2 table of Contents Explanatory Note General References in this annual Report on Form 10-K to “Plug Power,” the “Company,” “we,” “our” or “us” refer to Plug Power inc., including as the context requires, its subsidiaries. in this annual Report on Form 10-K, the Company: ● Restates its Consolidated Balance Sheet as of december 31, 2019 and the related Consolidated Statements of operations, Consolidated Statements of Comprehensive loss, Consolidated Statements of Stockholders’ equity (deficit), and Consolidated Statements of Cash Flows for the fiscal years ended december 31, 2019 and 2018; ● amends its Management’s discussion and analysis of Financial Condition and Results of operations (“Md&a”) as it relates to the fiscal years ended december 31, 2019 and 2018; ● Restates its “Selected Financial data” in Part ii, item 6 for fiscal years 2019, 2018, 2017 and 2016; and ● Restates its unaudited Quarterly Financial Statements for the first three fiscal quarters in the fiscal year ended december 31, 2020 and each fiscal quarter in the fiscal year ended december 31, 2019. Restatement Background as described in our Current Report on Form 8-K filed with the u.S. Securities and exchange Commission (“SeC”) on March 16, 2021, the Company and the audit Committee of the Company’s Board of directors (the “audit Committee”) concluded that, because of errors identified in the Company’s previously issued financial statements, the Company is restating its financial statements as of and for the years ended december 31, 2019 and 2018 and for each of the quarterly periods ended March 31, 2020 and 2019, June 30, 2020 and 2019, September 30, 2020 and 2019, in its Form 10-K for the year ended december 31, 2020 (collectively, the “Prior Period Financial Statements”). in addition, we have restated the statement of operations for the three months ended december 31, 2019, which was previously disclosed as a note in its form 10-K for the year ended december 31, 2019. these errors were identified after the Company reported its 2020 fourth quarter and year end results on February 25, 2021 during the course of the audit with respect to the Company’s financial statements for the year ended december 31, 2020, as well as during preparation of this annual Report on Form 10-K. we have determined that these errors were the result of a material weakness in internal control over financial reporting that is reported in management’s report on internal control over financial reporting as of december 31, 2020 in Part ii, item 9a, “Controls and Procedures” of this annual Report on Form 10-K. the restated financial statements as of and for the years ended december 31, 2019 and 2018 correct the following errors (the “Restatement items”) (for impacts to the quarterly periods, see note 3, “unaudited Quarterly Financial data and Restatement of Previously issued unaudited interim Condensed Consolidated Financial Statements”): (a) $112.7 million overstatement of the right of use assets related to operating lease liabilities at december 31, 2019, due to the Company incorrectly calculating the operating lease liability associated with certain sale/ leaseback transactions; (b) ($1.6) million understatement of benefit for loss contracts related to service on the Statement of operations for the year ended december 31, 2019, inclusive of the partial release of the 2018 accrual to the cost of services performed on fuel cells and related infrastructure, and a $5.3 million understatement of the provision for loss contracts for the year ended december 31, 2018, due to the Company not properly estimating the loss accrual related to extended maintenance contracts; (c) $19.5 million and $21.2 million, overstatement of gross profit (loss) for the years ended december 31, 2019 and 2018, respectively, due to the Company not properly presenting certain costs related to research and development activities and cost of revenues; (d) $1.8 million recording of a deemed dividend for certain conversions of the Company’s Series e Convertible Preferred Stock settled in common stock during the year ended december 31, 2019; 3 table of Contents (e) the Company determined that the amount recorded to accumulated deficit as of January 1, 2018 for a cumulative adjustment of approximately $3.4 million was the correction of an error in prior lease accounting. as a result of the correction of this error, the $3.4 million charge to accumulated deficit is now reflected in the beginning accumulated deficit for the 12 months ended december 31, 2018; and (f) $5.3 million understatement of bonus expense and related payroll taxes for the three months ended September 30, 2020, due to the Company not properly estimating bonus expense for the nine month period ended September 30, 2020. in addition to the errors described above, the Prior Period Financial Statements also include adjustments to correct certain other errors, including previously unrecorded immaterial adjustments identified in audits of prior years’ financial statements (the “other adjustments”).
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