FCEL FuelCell Energy Inc

 

As filed with the Securities and Exchange Commission on June 28, 2023

 

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		06810
(Address of Principal Executive Offices)		(Zip Code)

 

 

FUELCELL ENERGY, INC. THIRD AMENDED AND RESTATED 2018 OMNIBUS INCENTIVE PLAN

FUELCELL ENERGY, INC. 2018 EMPLOYEE STOCK PURCHASE PLAN, AS AMENDED AND RESTATED

(Full title of the plan)

 

 

Joshua Dolger, Esq.

Executive Vice President, General Counsel, and Corporate Secretary
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:

 

Paul D. Broude, Esq. Megan A. Odroniec, Esq. Foley & Lardner LLP 111 Huntington Avenue, Suite 2500 Boston, Massachusetts 02199

Jason B. Few President and Chief Executive Officer FuelCell Energy, Inc. 3 Great Pasture Road Danbury, Connecticut 06810

 

 

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.

 

	Large accelerated filer	x		Accelerated filer	¨
	Non-accelerated filer	¨		Smaller reporting company	¨
				Emerging growth company	¨

 

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.  ¨

 

 

 

 

STATEMENT PURSUANT TO GENERAL INSTRUCTION E TO FORM S-8

 

The purpose of this Registration Statement is to register the offer and sale of (a) 6,000,000 additional shares of the common stock, $0.0001 par value per share (“Common Stock”), of FuelCell Energy, Inc. (the “Company” or the “Registrant”) in connection with the Company’s Third Amended and Restated 2018 Omnibus Incentive Plan, and (b) 500,000 additional shares of Common Stock in connection with the Company’s 2018 Employee Stock Purchase Plan, as amended and restated.

 

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), May 22, 2020 (Reg. No. 333-238609), and April 8, 2021 (Reg. No. 333-255131), 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.

 

The Company 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”):

 

(a)

The Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2022, filed on December 20, 2022;

 

(b)

The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended January 31, 2023, filed on March 9, 2023 and the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended April 30, 2023, filed on June 8, 2023;

 

(c)

The Company’s Current Reports on Form 8-K, filed on December 7, 2022, December 19, 2022, January 11, 2023, February 23, 2023, April 6, 2023, April 27, 2023, May 1, 2023, May 12, 2023, May 23, 2023, May 25, 2023 (excluding Item 7.01 and Exhibit 99.1 of Item 9.01), and May 30, 2023; and

 

(d)

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, including Exhibit 4.4 to the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2022.

 

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. Further, unless specifically stated to the contrary, none of the information disclosed by the Registrant under Items 2.02 or 7.01 of any Current Report on Form 8-K, including the related exhibits under Item 9.01, that the Registrant may from time to time furnish to the Commission will be incorporated by reference into, or otherwise included in, 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.

 

Exhibit Number		Description
4.1		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).
4.2		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).
4.3		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).
4.4		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).
4.5		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).
4.6		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).
4.7		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).
4.8		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).
4.9		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).
4.10		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).

 

 

4.11		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).
4.12		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).
4.13		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).
4.14		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).
4.15		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).
4.16		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/A filed on April 14, 2021).
4.17		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).
4.18		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).
4.19		FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated effective as of May 22, 2023 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 23, 2023).
4.20		FuelCell Energy, Inc. Third Amended and Restated 2018 Omnibus Incentive Plan, effective as of May 22, 2023 (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on May 23, 2023).
5.1		Opinion of Foley & Lardner LLP (including consent of counsel).
23.1		Consent of KPMG LLP.
23.2		Consent of Foley & Lardner LLP (included in Exhibit 5.1).
24.1		Powers of Attorney (included on signature page).
107		Filing Fee Table

 

 

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 June 28, 2023.

 

	FUELCELL ENERGY, INC.
	By:	/s/ Jason B. Few
	Jason B. Few
	President and Chief Executive Officer

 

 

POWER OF ATTORNEY

 

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Jason B. Few, Joshua Dolger 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 June 28, 2023.

 

Signature		Title
/s/ Jason B. Few		President, Chief Executive Officer, and Director
Jason B. Few		(Principal Executive Officer and Director)
/s/ Michael S. Bishop		Executive Vice President and Chief Financial Officer
Michael S. Bishop		(Principal Financial Officer and Principal Accounting Officer)

 

 

/s/ James H. England		Director – Chairman of the Board
James H. England
/s/ Matthew F. Hilzinger		Director
Matthew F. Hilzinger
/s/ Natica von Althann		Director
Natica von Althann
/s/ Cynthia Hansen		Director
Cynthia Hansen
/s/ Donna Sims Wilson		Director
Donna Sims Wilson
/s/ Betsy Bingham		Director
Betsy Bingham

 

 

Exhibit 5.1

 

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

 

June 28, 2023

 

FuelCell Energy, Inc. 3 Great Pasture Road Danbury, Connecticut 06810

 

Re:

FuelCell Energy, Inc. Third Amended and Restated 2018 Omnibus Incentive Plan FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated

 

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 (i) 6,000,000 shares of common stock, par value $0.0001 per share, of the Company (the “Omnibus Plan Shares”) that may be issued pursuant to the FuelCell Energy, Inc. Third Amended and Restated 2018 Omnibus Incentive Plan (the “Omnibus Plan”), and (ii) 500,000 shares of common stock, par value $0.0001 per share, of the Company (the “ESPP Shares”) that may be issued pursuant to the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated (the “ESPP”).

 

In connection with our representation, we have examined: (i) the Omnibus Plan; (ii) the ESPP; (iii) the Registration Statement; (iv) the Certificate of Incorporation of the Company, as amended; (v) the Amended and Restated By-laws of the Company; (vi) resolutions of the Board of Directors of the Company relating to the Omnibus Plan and the issuance of the Omnibus Plan Shares thereunder; (vii) resolutions of the Board of Directors of the Company relating to the ESPP and the issuance of the ESPP Shares thereunder; and (viii) 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 Omnibus Plan Shares and the ESPP Shares.

 

AUSTIN Boston CHICAGO dallas DENVER

DETROIT houston JACKSONVILLE LOS ANGELES MADISON

MEXICO CITY MIAMI MILWAUKEE NEW YORK ORLANDO

SACRAMENTO salt lake city SAN DIEGO SAN FRANCISCO SILICON VALLEY

TALLAHASSEE TAMPA WASHINGTON, D.C. BRUSSELS TOKYO

 

 

 

 

June 28, 2023

Page 2

 

Based upon and subject to the foregoing, we are of the opinion that:

 

1.            The Omnibus Plan Shares covered by the Registration Statement, when issued and paid for pursuant to the terms and conditions of the Omnibus Plan, and as contemplated by the Registration Statement, will be validly issued, fully paid and nonassessable.

 

2.            The ESPP Shares covered by the Registration Statement, when issued and paid for pursuant to the terms and conditions of the ESPP, and as contemplated by the Registration Statement, will be validly issued, fully paid and nonassessable.

 

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.

 

	Very truly yours,
	/s/ FOLEY & LARDNER LLP
	FOLEY & LARDNER LLP

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

 

We consent to the use of our report dated December 20, 2022, with respect to the consolidated financial statements of FuelCell Energy, Inc. and subsidiaries, and the effectiveness of internal control over financial reporting, incorporated herein by reference.

 

/s/ KPMG LLP

 

Hartford, Connecticut

June 28, 2023

 

 

Exhibit 107

 

Calculation of Filing Fee Table

FORM S-8

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

________________________________

FUELCELL ENERGY, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Table 1: Newly Registered Securities

 

Security Type	Security Class Title	Fee Calculation Rule	Amount Registered(1)	Proposed Maximum Offering Price Per Unit(2)	Maximum Aggregate Offering Price(2)	Fee Rate	Amount of Registration Fee
Equity	Common Stock, $0.0001 par value per share	Other	6,000,000(3)	$2.19(2)	$13,140,000.00(2)	0.0001102	$1,448.03
Equity	Common Stock, $0.0001 par value per share	Other	500,000(4)	$2.19(2)	$1,095,000.00(2)	0.0001102	$120.67
Total Offering Amounts				-	$14,235,000	-	$1,568.70
Total Fee Offsets				-	-	-	-
Net Fee Due				-	-	-	$1,568.70

 

(1)

Pursuant to Rule 416(a) promulgated under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of common stock of FuelCell Energy, Inc. (the “Registrant”) that become issuable under the FuelCell Energy, Inc. Third Amended and Restated 2018 Omnibus Incentive Plan and the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated (collectively, the “Plans”), in accordance with the adjustment and anti-dilution provisions of the Plans.

(2)

Estimated in accordance with Rule 457(c) and Rule 457(h) promulgated under the Securities Act solely for the purpose of calculating the registration fee based on a per share price of $2.19, the average of the high and low price per share of the Registrant’s common stock on June 23, 2023, as reported on the Nasdaq Global Market.

(3)

Represents additional shares of the Registrant’s common stock issuable under the FuelCell Energy, Inc. Third Amended and Restated 2018 Omnibus Incentive Plan.

(4)

Represents additional shares of the Registrant’s common stock issuable under the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated.

 

 

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