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. Foley & Lardner LLP 111 Huntington Avenue, Suite 2500 Boston, Massachusetts 02199 | Jason B. Few 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; |
| (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.
2
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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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 | ||
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 |
