As filed with the Securities and Exchange Commission
on April 8, 2021
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. SECOND AMENDED AND RESTATED
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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8,000,000 shares
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$13.77
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$110,160,000
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$12,019
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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. Second Amended and Restated 2018 Omnibus Incentive Plan
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 $13.77 per share, which is the
average of the high and low prices of the Common Stock, as reported on The Nasdaq Global Market, on April 6, 2021.
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STATEMENT PURSUANT TO GENERAL
INSTRUCTION E TO FORM S-8
The purpose of this Registration Statement is to
register 8,000,000 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 Second Amended and Restated 2018 Omnibus Incentive Plan.
Pursuant to General Instruction E of Form S-8,
the contents of the Company’s Registration Statements on Form S-8 filed on April 5, 2018 (Reg. No. 333-224154) and May 22, 2020
(Reg. No. 333-238609), including the documents incorporated by reference therein, are incorporated by reference into this Registration
Statement.
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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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(a)
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The Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2020, filed on January 21, 2021;
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(b)
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The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended January 31, 2021, filed on March 16, 2021;
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(c)
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The Company’s Current Reports on Form 8-K, filed on November
27, 2020, December
1, 2020 (excluding Item 2.02), December
4, 2020 (excluding Item 7.01 and Exhibits 99.1, 99.2 and 99.3 of Item 9.01), December
9, 2020, December
21, 2020, January
20, 2021, February
10, 2021, February
11, 2021, April 8, 2021 (excluding Item 7.01 and Exhibit 99.1 of Item 9.01); 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.
Item 8. Exhibits.
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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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Certificate of Amendment of the Certificate of Incorporation of the Company, dated April
8, 2021 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on April 8, 2021).
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4.14
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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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4.15
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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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4.16
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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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4.17
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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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4.18
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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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4.19
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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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4.20
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FuelCell Energy, Inc. Second Amended and Restated 2018 Omnibus Incentive Plan, effective
as of April 8, 2021 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 8, 2021).
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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 April 8, 2021.
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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 April 8, 2021.
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Signature
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Title
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/s/ Jason B. Few
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President, Chief Executive Officer, Chief Commercial Officer and Director
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Jason B. Few
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(Principal Executive Officer and Director)
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/s/ Michael S. Bishop
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Executive Vice President, Chief Financial Officer and Treasurer
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Michael S. Bishop
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(Principal Financial Officer and Principal Accounting Officer)
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/s/ James H. England
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Director – Chairman of the Board
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James H. England
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/s/ Chris Groobey
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Director
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Chris Groobey
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/s/ Matthew F. Hilzinger
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Director
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Matthew F. Hilzinger
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/s/ Natica von Althann
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Director
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Natica von Althann
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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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April 8, 2021
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06810
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Re:
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FuelCell Energy, Inc. Second Amended and Restated 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 8,000,000 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. Second Amended and Restated 2018 Omnibus
Incentive Plan (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, certificates,
and instruments 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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April 8, 2021
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,
/s/ FOLEY & LARDNER LLP
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 21, 2021, with respect
to the consolidated balance sheets of FuelCell Energy, Inc. and subsidiaries as of October 31, 2020 and 2019, 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, 2020, and the related notes, incorporated herein by reference.
Our report refers to changes in the Company’s
methods of accounting for leases and revenue due to the adoption of new accounting guidance.
/s/
KPMG LLP
Hartford, Connecticut
April 8, 2021