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”):
| |
(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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