Administrative Proceeding

File No. 3-21588

Company to pay an additional springing penalty if it fails to remediate continuing controls deficiencies

August 30, 2023 – The Securities and Exchange Commission today charged Plug Power Inc., a provider of green hydrogen and hydrogen-fuel-cell systems, for financial reporting, accounting, and controls failures that required a multi-year restatement of the company’s prior financial statements. Plug Power has agreed to settle the SEC’s charges. 

According to the SEC’s Order, from 2018 through the third quarter of 2020, Plug Power failed to properly account for its right-of-use assets and lease liabilities for certain sale-leaseback transactions, failed to properly classify and present certain costs related to research and development activities as cost of revenue, and failed to properly estimate loss accruals for extended-maintenance contracts. The SEC’s Order finds that, due to these and other accounting errors, Plug Power announced on March 16, 2021, that its prior annual reports on Form 10-K for 2018 and 2019, and prior quarterly reports on Form 10-Q for 2019 and 2020, should no longer be relied upon. The SEC’s Order further finds that Plug Power restated these financial statements in its 2020 Form 10-K filed on May 14, 2021. According to the SEC’s Order, Plug Power’s restatement also identified a material weakness in internal control over financial reporting (ICFR), and ineffective disclosure controls and procedures (DCP), due to the company’s failure to maintain a sufficient complement of trained, knowledgeable personnel to execute their responsibilities for certain financial statement accounts and disclosures. Despite these deficiencies, Plug Power raised over $5 billion from investors during the relevant filing period, as defined in the SEC’s Order.

The SEC’s Order further finds that Plug Power prepared a remediation plan during the restatement process and began implementing the plan in 2021. In Plug Power’s 2022 Form 10-K, the company disclosed that management considered certain material weaknesses to be remediated as of December 31, 2022. As the SEC’s Order finds, however, Plug Power’s material weakness in ICFR has not been fully remediated.

Without admitting or denying the findings, Plug Power consented to the SEC’s Order, which finds that Plug Power violated the financial reporting, accounting, and controls provisions of Sections 13(a), 13(b)(2)(A), and 13(b)(2)(B) of the Securities Exchange Act of 1934, and Rules 13a-1, 13a-13, and 13a-15(a) – (c) thereunder. Plug Power also agreed to pay a civil penalty of $1.25 million and to implement undertakings, including a requirement to fully remediate the company’s material weakness in ICFR and ineffective DCP within one year from the date of the SEC’s Order. As set out in the SEC’s Order, if Plug Power fails to satisfy the undertakings, the company is ordered to pay an additional civil penalty of $5 million.

The SEC’s investigation was conducted by Christopher W. Ahart and Ayesha Ahmed, and supervised by Jim Etri and Eric Werner of the Fort Worth Regional Office.