As Filed with the Securities and Exchange Commission on April 11, 2017.
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 (State or Other Jurisdiction of Incorporation or Organization) |
06-0853042 (I.R.S. Employer Identification No.) |
|
3 Great Pasture Road, Danbury, Connecticut (Address of Principal Executive Offices) |
06813 (Zip Code) |
FuelCell Energy, Inc. Amended and Restated 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 | ý |
| Non-accelerated filer | ¨ (Do not check if a smaller reporting company) | Smaller reporting company |
¨ |
__________________
Copies of All Communications to:
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Peter J. Schaeffer, Esq. Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036 (212) 336-2000 |
Richard A. Krantz, Esq. Robinson & Cole LLP 666 Third Avenue New York, New York 10017 (212) 451-2900 |
CALCULATION OF REGISTRATION FEE
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| ||||||||
| 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 | 2,000,000 | $1.38 | $2,760,000 | $319.88 | ||||
(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. Amended and Restated 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 registrant’s 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 April 11, 2017, in accordance with Rule 457(c) under the Securities Act.
EXPLANATORY NOTE
This Registration Statement relates to 2,000,000 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. Amended and Restated 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 April 6, 2017. Pursuant to General Instruction E to Form S-8, the contents of the previous registration statements relating to the Plan (File No. 333-166164, filed on April 19, 2010; File No. 333-181021, filed on April 27, 2012; File No. 333-195848, filed on May 9, 2014; File No. 333-211092, filed on May 3, 2016) are incorporated by reference herein and made a part of this Registration Statement, except as amended hereby.
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, 2016, filed on January 12, 2017; |
| 2. | Our Proxy Statement for our shareholders’ meeting on April 6, 2017, filed on February 17, 2017; |
| 3. | Our Quarterly Report on Form 10-Q for the quarter ended January 31, 2017, filed on March 9, 2017; |
| 4. | Our Current Reports on Form 8-K filed November 4, 2016, December 1, 2016, December 20, 2016, January 12, 2017, March 9, 2017, March 21, 2017, and April 10, 2017; and |
| 5. | The description of our common stock set forth in our registration statement on Form 8-A, filed with the Securities and Exchange Commission 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 8. Exhibits.
The following exhibits are included or incorporated herein by reference:
|
Exhibit No. |
Description | |
| 4 | Specimen of Common Share Certificate (incorporated by reference to exhibit of the same number contained in the Company’s Annual Report on Form 10K/A for its fiscal year ended October 31, 1999) | |
| 5.1 | Opinion of Patterson Belknap Webb & Tyler LLP | |
| 23.1 | Consent of KPMG LLP, Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Patterson Belknap Webb & Tyler LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page hereof) | |
| 99.1 | FuelCell Energy, Inc. Amended and Restated 2010 Equity Incentive Plan (as amended and restated, effective April 6, 2017) (incorporated by reference to Annex A of the Company’s Proxy Statement filed on February 17, 2017) | |
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 April 11, 2017.
| FUELCELL ENERGY, INC. | |||
| By: | /s/ Arthur A. Bottone | ||
|
Arthur A. Bottone President and Chief Executive Officer |
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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/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for him/her and in his/her 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/she 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) | April 11, 2017 |
| /s/ Michael S. Bishop | ||
| Michael S. Bishop | Senior Vice President, Chief Financial Officer and Treasurer (Principal Accounting and Financial Officer) | April 11, 2017 |
| /s/ James Herbert England | ||
| James Herbert England | Director | April 11, 2017 |
| /s/ Matthew F. Hilzinger | ||
| Matthew F. Hilzinger | Director | April 11, 2017 |
| /s/ John A. Rolls | ||
| John A. Rolls | Director - Chairman of the Board | April 6, 2017 |
| /s/ Christopher S. Sotos | ||
| Christopher S. Sotos | Director | April 11, 2017 |
| /s/ Togo Dennis West, Jr. | ||
| Togo Dennis West, Jr. | Director | April 11, 2017 |
| /s/ Natica von Althann | ||
| Natica von Althann | Director | April 6, 2017 |
EXHIBIT INDEX
|
Exhibit No. |
Description | |
| 4 | Specimen of Common Share Certificate (incorporated by reference to exhibit of the same number contained in the Company’s Annual Report on Form 10K/A for its fiscal year ended October 31, 1999) | |
| 5.1 | Opinion of Patterson Belknap Webb & Tyler LLP | |
| 23.1 | Consent of KPMG LLP, Independent Registered Public Accounting Firm | |
| 23.2 | Consent of Patterson Belknap Webb & Tyler LLP (included in Exhibit 5.1) | |
| 24.1 | Power of Attorney (included on the signature page hereof) | |
| 99.1 | FuelCell Energy, Inc. Amended and Restated 2010 Equity Incentive Plan (as amended and restated, effective April 6, 2017) (incorporated by reference to Annex A of the Company’s Proxy Statement filed on February 17, 2017) | |
Exhibit 5.1
Letterhead of Patterson Belknap Webb & Tyler LLP
April 11, 2017
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 (the “Securities Act”), of 2,000,000 shares (the “Shares”) of Common Stock, $.0001 par value per Share, of the Company, subject to issuance by the Company upon exercise or settlement of awards granted under the FuelCell Energy, Inc. Amended and Restated 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 New York. 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 opinions, 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 New York, we have assumed that such laws are identical to the internal substantive laws of the State of New York.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement, 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.
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Very truly yours,
Patterson Belknap Webb & Tyler LLP |
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| By: |
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| Peter J. Schaeffer | |||
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 12, 2017, with respect to the consolidated balance sheets of FuelCell Energy, Inc. and subsidiaries as of October 31, 2016 and 2015, and the related consolidated statements of operations and comprehensive loss, changes in equity (deficit) and cash flows for each of the years in the three-year period ended October 31, 2016 and the effectiveness of internal control over financial reporting as of October 31, 2016, incorporated herein by reference.
/s/ KPMG LLP
Hartford, Connecticut
April 11, 2017