As filed with the Securities and Exchange
Commission on May 22, 2020
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)
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Delaware
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06-0853042
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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3 Great Pasture Road
Danbury, Connecticut
(Address of Principal Executive Offices)
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06810
(Zip Code)
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FUELCELL ENERGY, INC. 2018 OMNIBUS INCENTIVE
PLAN
(Full title of the plan)
Jason B. Few
President, Chief Executive Officer and
Chief Commercial Officer
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06810
(203) 825-6000
(Name, address and telephone number,
including
area code, of agent for service)
Copies to:
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Paul D. Broude, Esq.
Megan A. Odroniec, Esq.
Foley & Lardner LLP
111 Huntington Avenue, Suite 2500
Boston, Massachusetts 02199
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Jennifer D. Arasimowicz, Esq.
Executive Vice President, General Counsel, Corporate Secretary and Chief Administrative Officer
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06810
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Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an 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.
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Large accelerated filer ¨
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Accelerated filer ¨
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Non-accelerated filer x
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Smaller reporting company x
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Emerging growth company ¨
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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 7(a)(2)(B) of the Securities Act. ¨
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered
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Amount to be
Registered (1)
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Proposed Maximum Offering Price Per Share (2)
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Proposed Maximum Aggregate Offering Price
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Amount of Registration Fee
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Common Stock, $0.0001 par value per share
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4,000,000 shares
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$1.94
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$7,760,000
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$1,008
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(1)
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Pursuant to Rule 416(a) of the Securities Act of 1933,
as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the common
stock, $0.0001 par value per share (“Common Stock”), of FuelCell Energy, Inc. that become issuable under the FuelCell
Energy, Inc. 2018 Omnibus Incentive Plan, as amended and restated, by reason of any stock dividend, stock split, recapitalization
or other similar transaction effected without receipt of consideration that increases the number of outstanding shares of Common
Stock.
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(2)
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Estimated in accordance with Rule 457(c) and (h) of the
Securities Act solely for the purpose of calculating the registration fee on the basis of $1.94 per share, which is the average
of the high and low prices of the Common Stock, as reported on The Nasdaq Global Market, on May 19, 2020.
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STATEMENT PURSUANT
TO GENERAL INSTRUCTION E TO FORM S-8
The purpose of this Registration Statement
is to register 4,000,000 additional shares of the common stock, $0.0001 par value per share (“Common Stock”), of FuelCell
Energy, Inc. (the “Company”) in connection with the Company’s 2018 Omnibus Incentive Plan, as amended and restated.
Pursuant
to General Instruction E of Form S-8, the contents of the Company’s Registration Statement on Form S-8 (Reg. No. 333-224154),
including the documents incorporated by reference therein, are incorporated by reference into this Registration Statement.
PART II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents by Reference.
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FuelCell Energy, Inc. (the “Company”
or the “Registrant”) hereby incorporates by reference into this Registration Statement the documents listed in (a)
through (d) below, which have previously been filed with the Securities and Exchange Commission (the “Commission”):
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(c)
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The
Company’s Current Reports on Form 8-K, filed on November 6, 2019 (excluding Item 7.01 and Exhibits 99.1, 99.2 and 99.3 of
Item 9.01), November 25, 2019, December 12, 2019, December 20, 2019 (excluding Item 7.01 and Exhibit 99.1 of Item 9.01), January 13, 2020, February 13, 2020 (excluding Item 7.01 and Exhibit 99.1 of Item 9.01), February 21, 2020, March 20, 2020 (excluding
Item 7.01 and Exhibit 99.1 of Item 9.01), April 7, 2020 (excluding Item 7.01 and Exhibit 99.1 of Item 9.01), April 9, 2020, April 24, 2020 (excluding Item 7.01), May 4, 2020 (excluding Item 7.01 and Exhibit 99.1 of Item 9.01), May 12, 2020 (excluding Item
7.01 and Exhibit 99.1 of Item 9.01), and May 15, 2020; and
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(d)
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The
description of the Company’s common stock contained in its registration statement on Form 8-A, filed on June 6, 2000, including
any amendments or reports filed for the purposes of updating this description.
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In addition, all documents filed with the
Commission by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), on or after the date of this Registration Statement and prior to the filing of a post-effective amendment
to this Registration Statement that indicates that all securities offered hereunder have been sold or that deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in this Registration Statement and to be a part hereof from
the date of filing of such documents; provided, however, that documents or information deemed to have been furnished
and not filed in accordance with the rules of the Commission shall not be deemed incorporated by reference into this Registration
Statement.
Any statement contained in a document incorporated
or deemed to be incorporated by reference herein 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 also is incorporated or deemed
to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
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Exhibit
Number
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Description
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4.1
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Certificate of Incorporation of the Company, as amended, July 12, 1999 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated September 21, 1999).
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4.2
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated November 21, 2000 (incorporated by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
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4.3
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated October 31, 2003 (incorporated by reference to Exhibit 3.11 to the Company’s Current Report on Form 8-K dated November 3, 2003).
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4.4
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Amended Certificate of Designation of Series B Cumulative Convertible Perpetual Preferred Stock, dated March 14, 2005 (incorporated by reference to Exhibit 3.4 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
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4.5
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 8, 2011 (incorporated by reference to Exhibit 3.5 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
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4.6
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 5, 2012 (incorporated by reference to Exhibit 3.6 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
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4.7
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated December 3, 2015 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated December 3, 2015).
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4.8
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 18, 2016 (incorporated by reference to Exhibit 3.9 to the Company’s Quarterly Report on Form 10-Q for the period ending April 30, 2016).
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4.9
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 7, 2017 (incorporated by reference to Exhibit 3.10 to the Company’s Quarterly Report on Form 10-Q for the period ending April 30, 2017).
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4.10
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated December 14, 2017 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated December 14, 2017).
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4.11
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated May 8, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 8, 2019).
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4.12
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Certificate of Amendment of the Certificate of Incorporation of the Company, dated May 11, 2020 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 12, 2020).
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4.13
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Amended and Restated By-Laws of the Company, dated December 15, 2016 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K dated December 15, 2016).
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4.14
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Specimen of Common Share Certificate (incorporated by reference to Exhibit 4 to the Company’s Annual Report on Form 10-K for fiscal year ended October 31, 1999).
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4.15
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Schedule A to Articles of Amendment of FuelCell Energy, Ltd., setting forth the rights, privileges, restrictions and conditions of Class A Cumulative Redeemable Exchangeable Preferred Shares (incorporated by reference to Exhibit 4.2 to the Company’s Quarterly Report on Form 10-Q for the period ended January 31, 2009).
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4.16
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Letter Agreement, dated March 31, 2011, and Guarantee,
dated April 1, 2011, by and between the Company and Enbridge, Inc., and Revised Special Rights and Restrictions attributable to
the Class A Preferred Stock of FuelCell Energy, Ltd. (incorporated by reference to Exhibits 4.1, 4.2 and 4.3 to the Company’s
Current Report on Form 8-K dated March 31, 2011).
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4.17
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Certificate of Designation for the Company’s 5% Series B Cumulative Convertible Perpetual Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report Form 8-K, dated November 22, 2004).
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4.18
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Certificate of Designations for the Company’s Series C Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated September 5, 2017).
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4.19
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Certificate of Designations, Preferences and Rights for the Company’s Series D Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).
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4.20
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Specimen Series D Convertible Preferred Stock Certificate (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).
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4.21
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Form of Series A Warrants to purchase common stock (incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated July 6, 2016).
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4.22
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Form of Series B Warrants to purchase common stock (incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K dated July 6, 2016).
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4.23
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Form of Series C Warrants to purchase common stock (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated April 27, 2017).
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4.24
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Form of Series D Warrants to purchase common stock (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K dated April 27, 2017).
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4.25
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Form of Warrant to purchase common stock (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K filed on November 6, 2019).
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4.26
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Letter Agreement, dated January 20, 2020, among the Company, FCE FuelCell Energy Ltd., and Enbridge Inc. relating to the amendment of the terms of the Class A Cumulative Preferred Stock of FCE FuelCell Energy Ltd. (incorporated by reference to Exhibit 4.13 to the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2019).
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4.27
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Schedule A setting forth the amended rights, privileges, restrictions and conditions of the Class A Cumulative Preferred Stock of FCE FuelCell Energy Ltd. (incorporated by reference to Exhibit 4.14 to the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2019).
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4.28
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FuelCell Energy, Inc. 2018 Omnibus Incentive Plan, as amended and restated, effective as of May 8, 2020 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 12, 2020).
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5.1
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Opinion of Foley & Lardner LLP (including consent of counsel).
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23.1
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Consent of KPMG LLP.
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23.2
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Consent of Foley & Lardner LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (included on signature page).
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SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, 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 22, 2020.
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FUELCELL ENERGY, INC.
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By:
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/s/ Jason B. Few
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Jason B. Few
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President, Chief Executive Officer and Chief Commercial Officer
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POWER OF
ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that
each person whose signature appears below constitutes and appoints Jason B. Few, Jennifer D. Arasimowicz and Michael S. Bishop,
and each of them, as his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution,
for him or her and in his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, and any other regulatory authority, 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 or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on May 22, 2020.
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Signature
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Title
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/s/ Jason B. Few
Jason B. Few
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President, Chief Executive Officer, Chief Commercial Officer and Director
(Principal Executive Officer and Director)
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/s/ Michael S. Bishop
Michael S. Bishop
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Executive Vice President, Chief Financial Officer and Treasurer
(Principal Financial Officer and Principal Accounting
Officer)
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/s/ James H. England
James H. England
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Director – Chairman of the Board
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/s/ Chris Groobey
Chris Groobey
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Director
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/s/ Matthew F. Hilzinger
Matthew F. Hilzinger
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Director
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/s/ Natica von Althann
Natica von Althann
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Director
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Exhibit 5.1
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ATTORNEYS
AT LAW
111
Huntington Avenue
Boston,
Massachusetts 02199
617.342.4000
TEL
617.342.4001
FAX
www.foley.com
CLIENT/MATTER NUMBER
106876-0129
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May 22, 2020
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06810
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Re:
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FuelCell Energy, Inc. 2018 Omnibus Incentive Plan
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Ladies and Gentlemen:
We have acted as counsel for FuelCell Energy,
Inc., a Delaware corporation (the “Company”), in connection with the preparation of a Registration Statement on Form
S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission under the Securities
Act of 1933, as amended (the “Securities Act”), relating to 4,000,000 shares of common stock, par value $0.0001 per
share, of the Company (the “Shares”) that may be issued pursuant to the FuelCell Energy, Inc. 2018 Omnibus Incentive
Plan, as amended and restated (the “Plan”).
In connection with our representation, we
have examined: (i) the Plan; (ii) the Registration Statement; (iii) the Certificate of Incorporation of the Company, as amended;
(iv) the Amended and Restated By-Laws of the Company; (v) resolutions of the Board of Directors of the Company relating to the
Plan and the issuance of the Shares thereunder; and (vi) such other documents and records as we have deemed necessary to enable
us to render this opinion. In our examination of the above-referenced documents, we have assumed the genuineness of all signatures,
the authenticity of all documents, certificates, and instruments submitted to us as originals and the conformity with the originals
of all documents submitted to us as copies.
We express no opinion herein as to the laws
of any state or jurisdiction other than the General Corporation Law of the State of Delaware and the federal laws of the United
States of America. This opinion is being furnished in connection with the requirements of Item 601(b)(5) of Regulation S-K under
the Securities Act, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement
or the prospectus that forms a part thereof, other than as expressly stated herein with respect to the issuance of the Shares.
Based upon and subject to the foregoing, we
are of the opinion that the Shares covered by the Registration Statement, when issued and paid for pursuant to the terms and conditions
of the Plan, and as contemplated by the Registration Statement, will be validly issued, fully paid and nonassessable.
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AUSTIN
Boston
CHICAGO
dallas
DENVER
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DETROIT
houston
JACKSONVILLE
LOS
ANGELES
MADISON
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MEXICO
CITY
MIAMI
MILWAUKEE
NEW
YORK
ORLANDO
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SACRAMENTO
SAN
DIEGO
SAN
FRANCISCO
SILICON
VALLEY
TALLAHASSEE
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TAMPA
WASHINGTON,
D.C.
BRUSSELS
TOKYO
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May 22, 2020
Page 2
We hereby consent to the use of this opinion
letter as an exhibit to the Registration Statement and to the reference to our firm in the Registration Statement. In giving our
consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the
category of persons whose consent is required by Section 7 of the Securities Act.
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Very truly yours,
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/s/ FOLEY & LARDNER LLP
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FOLEY & LARDNER LLP
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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 22, 2020,
with respect to the consolidated balance sheets of FuelCell Energy, Inc. and subsidiaries as of October 31, 2019 and 2018, the
related consolidated statements of operations and comprehensive loss, changes in equity, and cash flows for each of the years in
the three-year period ended October 31, 2019, and the related notes, incorporated herein by reference.
Our report refers to a change in the Company’s
method of accounting for revenue due to the adoption of new accounting guidance.
/s/ KPMG LLP
Hartford, Connecticut
May 22, 2020