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)

 

Delaware   06-0853042
(State or other jurisdiction of
incorporation or organization)
  (I.R.S. Employer Identification No.)
     
3 Great Pasture Road
Danbury, Connecticut
(Address of Principal Executive Offices)
 
06810
(Zip Code)

  

 

  

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: 

 

Paul D. Broude, Esq.
Megan A. Odroniec, Esq.

Foley & Lardner LLP

111 Huntington Avenue, Suite 2500

Boston, Massachusetts 02199 

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 

 

 

 

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  ¨ Accelerated filer  ¨  
Non-accelerated filer    x Smaller reporting company  x  
  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.  ¨

 

 

  

CALCULATION OF REGISTRATION FEE

 

Title of Securities to be Registered

Amount to be

Registered (1)

Proposed
Maximum
Offering Price
Per Share (2)
Proposed Maximum
Aggregate Offering
Price
Amount of
Registration Fee
Common Stock, $0.0001 par value per share 8,000,000 shares $13.77 $110,160,000 $12,019
(1) 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.

 

(2) 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.

 

 

   

 

 

 

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”):

 

  (a) The Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2020, filed on January 21, 2021;

 

  (b) The Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended January 31, 2021, filed on March 16, 2021;

 

  (c) 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

 

  (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.

 

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.

 

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   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).
     
4.5   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).
     
4.6   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).
     
4.7   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). 
     
4.8   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).
     
4.9   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).
     
4.10   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).
     
4.11   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).

  

 

 

 

4.12   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).
       
4.13   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).
     
4.14   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).
     
4.15   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).
     
4.16   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).
     
4.17   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). 
     
4.18   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). 
     
4.19   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). 
     
4.20   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). 
     
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).

  

 

 

 

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.

 

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

 

 

 

 

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.

 

Signature   Title
     
/s/ Jason B. Few   President, Chief Executive Officer, Chief Commercial Officer and Director
Jason B. Few   (Principal Executive Officer and Director)
     
/s/ Michael S. Bishop   Executive Vice President, Chief Financial Officer and Treasurer
Michael S. Bishop   (Principal Financial Officer and Principal Accounting Officer)
     
/s/ James H. England   Director – Chairman of the Board
James H. England    
     
/s/ Chris Groobey   Director
Chris Groobey    
     
/s/ Matthew F. Hilzinger   Director
Matthew F. Hilzinger    
     
/s/ Natica von Althann   Director
Natica von Althann