As Filed with the Securities and Exchange Commission on May 9, 2014.
REGISTRATION NO. 333-________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FUELCELL ENERGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware | 06-0853042 | |
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
3 Great Pasture Road, Danbury, Connecticut | 06813 | |
(Address of Principal Executive Offices) | ( Zip Code) |
FuelCell Energy, Inc. 2010 Equity Incentive Plan
(Full Title of Plan)
Arthur A. Bottone
President and Chief Executive Officer
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
(Name and Address of Agent for Service)
(203) 825-6000
(Telephone Number, Including Area Code, of Agent for Service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
Large accelerated filer | ¨ | Accelerated filer | x | |||
Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company | ¨ |
Copies of All Communications to:
Richard A. Krantz, Esq.
Robinson & Cole LLP
666 Third Avenue
New York, New York 10017
(212) 451-2900
CALCULATION OF REGISTRATION FEE
| ||||||||
Title of Securities To Be Registered(1) | Amount To Be |
Proposed Maximum Offering Price Per Share(3) |
Proposed Offering Price(3) |
Amount of Registration Fee(3) | ||||
Common Stock, par value $.0001 per share |
8,000,000 | $1.91 | $15,280,000 | $1,968.06 | ||||
| ||||||||
|
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (Securities Act), this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the FuelCell Energy, Inc. 2010 Equity Incentive Plan (the Plan) described herein.
(2) Estimated maximum aggregate number of shares of common stock of FuelCell Energy, Inc. (registrant) available for issuance under the Plan. Pursuant to Rule 416 of the Securities Act, this registration statement shall also cover an additional indeterminate number of shares of common stock of the registrant as may be required pursuant to the Plan in the event of a stock dividend, stock split, recapitalization or other similar transaction without the receipt of consideration which results in an increase in the number of the registrants outstanding shares of common stock.
(3) Estimated solely for the purpose of calculating the registration fee and are based on the average of high and low prices of the common stock of registrant on the Nasdaq Global Market on May 8, 2014, in accordance with Rule 457(c) under the Securities Act.
EXPLANATORY NOTE
This registration statement relates to 8,000,000 shares of common stock, par value $.0001 per share, of FuelCell Energy, Inc. (the Company or the Registrant) that may be offered or sold to participants of the FuelCell Energy, Inc. 2010 Equity Incentive Plan (the Plan). The Plan was amended to add these additional shares at the Annual Meeting of Shareholders of the Company held on March 27, 2014.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Item 1 and Item 2 of Part I of the Registration Statement on Form S-8 are omitted from this filing in accordance with the provisions of Rule 424 under the Securities Act of 1933, as amended (the Securities Act), and the introductory note to Part I of Form S-8. The documents containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Registration Statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange Commission are incorporated by reference in this Registration Statement:
1. | Our Annual Report on Form 10-K for the fiscal year ended October 31, 2013; |
2. | Our Proxy for our shareholders meeting on March 27, 2014, filed on February 11, 2014; |
3. | Our Quarterly Report on Form 10-Q filed March 12, 2014 for the quarter ended January 31, 2014; |
4. | Our Current Reports on Form 8-K filed January 16, 2014, January 17, 2014, January 23, 2014, March 11, 2014, and April 1, 2014; and |
5. | The description of our common stock set forth in our registration statement on Form 8-A, filed with the SEC on June 6, 2000, including any amendments or reports filed for the purposes of updating this description. |
In addition to the foregoing, all documents subsequently filed by the Company with the Securities and Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered under this Registration Statement have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference into this Registration Statement and to be a part of this Registration Statement from the date of filing of such documents. Any statement contained in a document incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any subsequently filed document that is also 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.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person, including an officer and director, who was or is, or is threatened to be made, a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was a director, officer, employee or agent of such corporation, or is or was serving at the
request of such corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise. The indemnity may include expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of such corporation, and, with respect to any criminal actions and proceedings, had no reasonable cause to believe that his conduct was unlawful. A Delaware corporation may indemnify any person, including an officer or director, who was or is, or is threatened to be made, a party to any threatened, pending or contemplated action or suit by or in the right of such corporation, under the same conditions, except that no indemnification is permitted without judicial approval if such person is adjudged to be liable to such corporation. Where an officer or director of a corporation is successful, on the merits or otherwise, in the defense of any action, suit or proceeding referred to above, or any claim, issue or matter herein, the corporation must indemnify such person against the expenses (including attorneys fees) which such officer or director actually and reasonably incurred in connection therewith.
Our certificate of incorporation provides that none of our directors will be personally liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the Delaware General Corporation Law.
Our by-laws provide for indemnification of our officers and directors to the fullest extent permitted by applicable law. We also maintain directors and officers liability insurance policies.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are included or incorporated herein by reference:
Exhibit |
Description | |
4 | Specimen of Common Share Certificate (incorporated by reference to exhibit of the same number contained in the Companys Annual Report on Form 10K/A for its fiscal year ended October 31, 1999) | |
5.1 | Opinion of Robinson & Cole LLP | |
23.1 | Consent of KPMG LLP, Independent Registered Public Accounting Firm | |
23.2 | Consent of Robinson & Cole LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (included on the signature page hereof) |
Item 9. Undertakings.
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 of 1933, as amended (the Securities Act);
(ii) To reflect in the prospectus any facts or events arising after the effective date of this 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 this Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Securities and Exchange Commission (the Commission) pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement;
provided, however, that paragraphs 1(i) and (1)(ii) do not apply if this Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 (the Exchange Act) that are incorporated by reference in this Registration Statement.
2. That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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.
3. 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.
4. That, for the purpose of determining liability of the Registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned Registrant undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this Registration Statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned Registrant or its securities provided by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned Registrant to the purchaser.
5. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrants annual report pursuant to section 13(a) or section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans annual report pursuant to section 15(d) of the Exchange Act) that is incorporated by reference in this 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.
6. 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant 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 the City of Danbury, State of Connecticut on May 9, 2014.
FUELCELL ENERGY, INC. | ||
By: | /s/ Arthur A. Bottone | |
Arthur A. Bottone President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Arthur A. Bottone and Michael S. Bishop, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments, exhibits thereto and other documents in connection therewith) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith (including any registration statement relating to this Registration Statement and filed pursuant to Rule 462(b) of the Securities Act of 1933, as amended), with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or either of them, or their or his substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE | TITLE | DATE | ||
/s/ Arthur A. Bottone Arthur A. Bottone |
President and Chief Executive Officer (Principal Executive Officer) | May 9, 2014 | ||
/s/ Michael S. Bishop Michael S. Bishop |
Senior Vice President, Chief Financial Officer, Corporate Secretary and Treasurer (Principal Accounting and Financial Officer) | May 9, 2014 | ||
/s/ Richard A. Bromley Richard A. Bromley |
Director | May 8, 2014 |
/s/ James Herbert England James Herbert England |
Director | May 5, 2014 | ||
/s/ James D. Gerson James D. Gerson |
Director | May 8, 2014 | ||
/s/ William A. Lawson William A. Lawson |
Director | May 8, 2014 | ||
/s/ John A. Rolls John A. Rolls |
Director | May 5, 2014 | ||
/s/ Togo Dennis West, Jr. Togo Dennis West, Jr. |
Director | May 8, 2014 |
EXHIBIT INDEX
Exhibit |
Description | |
4 | Specimen of Common Share Certificate (incorporated by reference to exhibit of the same number contained in the Companys Annual Report on Form 10K/A for its fiscal year ended October 31, 1999) | |
5.1 | Opinion of Robinson & Cole LLP | |
23.1 | Consent of KPMG LLP, Independent Registered Public Accounting Firm | |
23.2 | Consent of Robinson & Cole LLP (included in Exhibit 5.1) | |
24.1 | Power of Attorney (included on the signature page hereof) |
Exhibit 5.1
Letterhead of Robinson & Cole LLP
May 9, 2014
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We have acted as counsel to FuelCell Energy, Inc, a Delaware corporation (the Company), in connection with the preparation of a Registration Statement on Form S-8 to be filed with the Securities and Exchange Commission (the Registration Statement) with respect to the registration under the Securities Act of 1933, as amended, of 8,000,000 shares (the Shares) of Common Stock, $.0001 par value, of the Company (the Common Stock), subject to issuance by the Company upon exercise of options granted under the FuelCell Energy, Inc. 2010 Equity Incentive Plan (the Plan).
This opinion is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K.
We have examined originals or certified copies of such corporate records, certificates of officers of the Company and/or public officials and such other documents and have made such other factual and legal investigations as we have deemed relevant and necessary as the basis for the opinions set forth below. In such examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as conformed or photostatic copies and the authenticity of the originals of such copies.
Based upon our foregoing examination, subject to the assumptions stated above and relying on the statements of fact contained in the documents that we have examined, we are of the opinion that (i) the issuance by the Company of the Shares has been duly authorized and (ii) when issued in accordance with the terms of the Plan, the Shares will be duly and validly issued, fully paid and non-assessable.
We are qualified to practice law only in the State of Connecticut. We are not qualified and do not express any opinion herein as to the laws of any other jurisdiction, except the federal laws of the United States and, to the extent required by the foregoing opinion, the Delaware General Corporation Law. Otherwise, to the extent this opinion deals with matters governed by or relating to the laws of any state other than Connecticut, we have assumed that such laws are identical to the internal substantive laws of the State of Connecticut.
We hereby consent to the filing of this opinion as an exhibit to the Companys Registration Statement on Form S-8, including the prospectus or any supplement to the prospectus, constituting a part thereof, as originally filed or subsequently amended. In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Securities Act, or the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
Robinson & Cole LLP | ||
By: | /s/ Richard A. Krantz | |
Richard A. Krantz |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
FuelCell Energy, Inc:
We consent to the use of our report dated January 6, 2014, with respect to the consolidated balance sheets of FuelCell Energy, Inc. and subsidiaries as of October 31, 2013 and 2012 and the related consolidated statements of operations and comprehensive income (loss), changes in (deficit) equity and cash flows for each of the years in the three-year period ended October 31, 2013 and the effectiveness of internal control over financial reporting as of October 31, 2013, incorporated by reference herein.
/s/ KPMG
Hartford, Connecticut
May 9, 2014