Unassociated Document
As
Filed with the Securities and Exchange Commission on October 25,
2007.
REGISTRATION
NO. 333-________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
______________________________________
FORM
S-1
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
|
FUELCELL
ENERGY, INC.
|
|
(Exact
Name of Registrant as Specified in Its Charter)
|
|
Delaware
|
|
(State
or Other Jurisdiction of Incorporation or
Organization)
|
|
3629
|
|
(Primary
Standard Industrial Classification Code Number
|
|
06-0853042
|
|
(I.R.S.
Employer Identification Number)
|
|
3
Great Pasture Road
Danbury,
Connecticut 06813
(203)
825-6000
|
|
(Address,
Including Zip Code, and Telephone Number, Including Area
Code,
of
Registrant’s Principal Executive Offices)
|
|
R.
Daniel Brdar
President,
Chief Executive Officer and Chairman of the Board
FuelCell
Energy, Inc.
3
Great Pasture Road
Danbury,
Connecticut 06813
(203)
825-6000
|
|
(Name,
Address, Including Zip Code, and Telephone Number, Including Area
Code,
of
Agent for Service)
|
Copies
of
All Communications to:
Richard
A. Krantz, Esq.
Robinson
& Cole LLP
Financial
Centre
695
East Main Street
Stamford,
Connecticut 06904
(203)
462-7500
Approximate
Date of Commencement of Proposed Sale to the Public: Promptly after the
effective date of this registration statement.
If
any of
the securities being registered on this form are to be offered on a delayed
or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, check
the following box. x.
If
this
form is filed to register additional securities for an offering pursuant
to Rule
462(b) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. o
If
this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the
same
offering. o
If
this
form is a post-effective amendment filed pursuant to Rule 462(d) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the
same
offering. o
CALCULATION
OF REGISTRATION FEE
|
Title
of Each
Class
of
Securities
to
Be
Registered
|
Amount
To
Be
Registered
|
Proposed
Maximum
Offering
Price
Per
Share(1
)
|
Proposed
Maximum
Aggregate
Offering
Price(1)
|
Amount
of
Registration
Fee
|
|
Common
Stock
|
500,000
|
$9.38
|
$4,690,000
|
$143.98
|
(1)
Estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457(c) under the Securities Act of 1933 based upon the average of the high
and
low prices of the common stock of the Registrant as reported by the Nasdaq
Global Market on October 22, 2007.
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the Registration Statement shall become effective on
such
date as the Commission, acting pursuant to said Section 8(a), may
determine.
THE
INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT
TO COMPLETION, DATED OCTOBER 25, 2007
PROSPECTUS
[LOGO]
500,000 Shares
of Common Stock
_____________
FuelCell
Energy, Inc. is filing this prospectus in connection with our offer of up
to
500,000 shares of our common stock to certain of our employees as partial
payment of annual bonuses earned and to be earned with respect to our future
fiscal years ending October 31, 2007, 2008 and 2009. This offering will commence
after the effectiveness of the registration statement of which this prospectus
forms a part, and be made on a continuous basis thereafter for a period of
three
years from the effective date of the registration statement.
Our
common stock is quoted on the Nasdaq Global Market under the symbol “FCEL”. The
last reported sale price of our common stock on the Nasdaq Global Market
on
October 22, 2007 was $9.49 per share.
Our
principal executive offices are located at 3 Great Pasture Road, Danbury,
Connecticut 06813, and our telephone number is (203) 825-6000.
Investing
in our common stock involves risks. See “Risk Factors” beginning on page 7.
Neither
the Securities and Exchange Commission nor any state securities commission
has
approved or disapproved of these securities or passed upon the adequacy or
accuracy of this prospectus. Any representation to the contrary is a criminal
offense.
The
date
of this prospectus is [___________], 2007.
TABLE
OF CONTENTS
| |
Page
|
| |
|
|
FORWARD-LOOKING
STATEMENTS
|
ii
|
|
ABOUT
THIS PROSPECTUS
|
ii
|
|
SUMMARY
|
1
|
|
RISK
FACTORS
|
7
|
|
USE
OF PROCEEDS
|
18
|
|
PLAN
OF DISTRIBUTION
|
18
|
|
DESCRIPTION
OF CAPITAL STOCK
|
19
|
|
LIMITATION
ON LIABILITY AND INDEMNIFICATION MATTERS
|
27
|
|
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
|
28
|
|
LEGAL
MATTERS
|
28
|
|
EXPERTS
|
28
|
|
WHERE
YOU CAN FIND MORE INFORMATION
|
29
|
|
INCORPORATION
BY REFERENCE
|
29
|
This
prospectus and the documents incorporated by reference into this prospectus
contain forward-looking statements that are based on current expectations,
estimates and projections about our industry, management’s beliefs, and
assumptions made by management. Words such as “anticipates,” “expects,”
“intends,” “plans,” “believes,” “seeks,” “estimates,” and variations of such
words and similar expressions are intended to identify such forward-looking
statements. These statements are not guarantees of future performance and
are
subject to certain risks, uncertainties and assumptions that are difficult
to
predict; therefore, actual results may differ materially from those expressed
or
forecasted in any forward-looking statements. The risks and uncertainties
include those noted in “Risk Factors” above and in the documents incorporated by
reference. We undertake no obligation to update publicly any forward-looking
statements, whether as a result of new information, future events or
otherwise.
ABOUT
THIS PROSPECTUS
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission utilizing a continuous offering process. Under this
continuous offering process, the selling shareholder may, from time to time,
sell the securities described in this prospectus in one or more offerings.
This
prospectus provides you with a general description of the securities that
may be
offered by the selling shareholder. Each time the selling shareholder sells
securities, the selling shareholder is required to provide you with this
prospectus and, in certain cases, a prospectus supplement containing more
specific information about the selling shareholder and the terms of the
securities being offered. The prospectus supplement may also add, update
or
change information contained in this prospectus. If there is any inconsistency
between the information in this prospectus and any prospectus supplement,
you
should rely on the information in that prospectus supplement. You should
carefully read both this prospectus and any prospectus supplement, including
documents incorporated by reference herein, together with the additional
information described in the section entitled “Where You Can Find More
Information.”
We
have
not authorized any dealer, salesman or other person to give any information
or
to make any representation other than those contained or incorporated by
reference in this prospectus and the accompanying supplement to this prospectus.
You must not rely upon any information or representation not contained or
incorporated by reference in this prospectus or the accompanying prospectus
supplement. This prospectus and the accompanying supplement to this prospectus
do not constitute an offer to sell or the solicitation of an offer to buy
any
securities other than the registered securities to which they relate, nor
do
this prospectus and the accompanying supplement to this prospectus constitute
an
offer to sell or the solicitation of an offer to buy securities in any
jurisdiction to any person to whom it is unlawful to make such offer or
solicitation in such jurisdiction. You should not assume that the information
contained in this prospectus and the accompanying prospectus supplement is
accurate on any date subsequent to the date set forth on the front of the
document or that any information we have incorporated by reference is correct
on
any date subsequent to the date of the document incorporated by reference,
even
though this prospectus and any accompanying prospectus supplement is delivered
or securities sold on a later date.
SUMMARY
This
summary highlights information contained elsewhere in this prospectus and
in the
documents incorporated by reference herein and does not contain all of the
information you should consider in making your investment decision. You should
read this summary together with the more detailed information, including
our
business information, financial statements and the related notes, incorporated
by reference in this prospectus, as well as the information set forth in
any
prospectus supplement. You should carefully consider, among other things,
the
matters discussed in the section entitled “Risk Factors.”
FuelCell
Energy, Inc.
General
We
are a
world leader in the development and manufacture of fuel cell power plants
for
ultra-clean, efficient and reliable electric power generation. Our products
are designed to meet the 24/7 baseload power needs of commercial, industrial,
government and utility customers. To date, our products have generated over
180
million kilowatt hours of power and we are generating power at over 50 locations
worldwide.
Our
executive offices are located at 3 Great Pasture Road, Danbury, Connecticut
06813. Our telephone number is (203) 825-6000. We maintain a web site at
the following Internet address: www.fuelcellenergy.com.
The
information on our web site is not part of this prospectus.
Unless
the context otherwise requires, references in this prospectus to “FuelCell,”
“we,” “us” and “our” refer to FuelCell Energy, Inc.
As
used
in this prospectus, all degrees refer to Fahrenheit (oF),
and
kilowatt and megawatt numbers designate nominal or rated capacity of the
referenced power plant. As used in this prospectus, “kilowatt” (kW) means 1,000
watts; “megawatt” (MW) means 1,000,000 watts; and “kilowatt hour” (kWh) is equal
to 1 kW of power supplied to or taken from an electric circuit steadily for
one
hour. All dollar amounts are in U.S. dollars unless otherwise
noted.
Summary
of Business
FuelCell
Energy develops, manufactures and markets ultra-clean power plants that generate
electricity with up to twice the efficiency of conventional fossil fuel plants
with virtually no air pollution and reduced greenhouse gas emissions. Our
DFC
power plants use a variety of fuels including renewable biogas and
readily-available fuels such as natural gas and have generated more than
180
million kilowatt hours of power for commercial, industrial, municipal and
utility customers. FuelCell Energy’s fuel cells are generating power at over 50
locations worldwide.
We
have
been developing fuel cell technology since our founding in 1969. Our core
carbonate fuel cell products (“Direct FuelCell®
or
DFC®
Power
Plants”), offer stationary applications for customers. In addition to our
current commercial products, we continue to develop our next generation of
carbonate fuel cell and hybrid products as well as planar solid oxide fuel
cell
(“SOFC”) technology with our own and government research and development funds.
Our
proprietary carbonate DFC power plants electrochemically (meaning without
combustion) produce electricity directly from readily available hydrocarbon
fuels, such as natural gas and biomass fuels. Customers buy fuel cells to
improve reliability, reduce costs and reduce emissions.
We
believe our products offer significant advantages compared to other power
generation technologies:
| · |
Reliable 24/7 baseload power,
|
| · |
Ultra-clean (e.g. virtually zero emissions) and quiet
operation,
|
| · |
Lower cost to generate electricity,
|
| · |
The ability to site units locally, and
|
| · |
provide high temperature heat for cogeneration
applications.
|
Our
core
products, the DFC300, DFC1500 and DFC3000, are currently rated in capacity
at
300 kW, 1.2 MW and 2.4 MW, respectively and are designed for applications
up to
50 MW. Our products meet the baseload power requirements of a wide range
of
customers including wastewater treatment plants (municipal, such as sewage
treatment facilities, and industrial, such as breweries and food processors),
hotels, manufacturing facilities, universities, hospitals,
telecommunications/data centers, government facilities, as well as grid support
applications for utility customers. Our DFC power plants can be part of a
total onsite power generation solution for customers with our high efficiency
products providing the baseload power with grid-delivered electricity and
intermittent power, such as solar, or less efficient combustion-based equipment
providing peaking and load following energy needs. Our fuel cells offer flexible
siting and easy permitting. Our products are also ideal for meeting the needs
of
utilities and the Renewable Portfolio Standards (“RPS”) clean energy mandates
now in 25 states and Washington D.C.
The
market is beginning to recognize the advantages of stationary fuel cell power.
Volatile fuel and energy prices, the ratification of the Kyoto Protocol by
over
160 countries since 2005, and worldwide efforts to minimize greenhouse gases
like carbon dioxide and other harmful emissions with mandates for significant
increases in clean electric power generation, are placing greater emphasis
on
ultra-clean, high efficiency distributed generation power. Electric generation
without combustion significantly reduces harmful pollutants such as NOX,
SOX and
particulates. Higher fuel efficiency results in lower emissions of carbon
dioxide, a major contributor of harmful greenhouse gases, and also results
in
less fuel needed per kWh of electricity generated and Btu of heat produced,
thereby reducing exposure to volatile natural gas costs and minimizing operating
costs. With increasing demand for renewable and ultra-clean power options,
and
increased volatility and uncertainty in electric markets, our customers gain
control of power generation economics, reliability and emissions.
Our
business strategy is to expand our leadership position in key markets, build
multi-megawatt markets and continue to reduce the costs of our products.
We
believe that with the emergence of the RPS markets, the growth of the California
and Asia markets and continuing product cost reduction, we are well positioned
to move to profitability. At a sustained annual order and production volume
of
approximately 35 MW to 50 MW, depending on product mix, geographic location
and
other variables such as fuel prices, we can reach gross margin breakeven.
Our
net income break-even can be achieved at a sustained annual order and volume
production of approximately 75-100 MW assuming a mix of sub-MW and MW sales.
With the multi-MW order potential of Asia, Connecticut and California, our
2.4
MW DFC3000 is expected to become gross margin profitable with volume. Thus,
if
product mix trends more toward MW and multi-MW orders, we believe that
profitability can be achieved at annual volumes lower than 75 MW.
Customers
buy our fuel cells for reliability, cost and environmental demands. There
are
currently strong incentive programs in our target markets including California
and the Northeast in the U.S., South Korea and Japan in Asia and Germany
in
Europe that make the cost of clean power solutions including fuel cells,
wind
and solar, competitive. We believe that with continued cost reduction of
our
products and increased volume, our products will be cost competitive on an
unsubsidized basis against the grid and other distributed generation products,
such as engines.
Recent
Developments
Versa
Investment
In
June
2007, we invested $2.0 million in Versa Power Systems, Inc. (Versa) in the
form
of a convertible note. This investment would bring the Company’s ownership
percentage in Versa to approximately 43% should this note be converted. In
conjunction with this investment we also received warrants for the right
to
purchase an additional 2,286 shares of Versa common stock at an exercise
price
of $175 per share. Versa is a leading planar solid-oxide technology developer
and is a subcontractor for the Company on the Department of Energy’s large-scale
hybrid project to develop a coal-based, multi-megawatt solid oxide fuel
cell-based hybrid system.
Increase
in Production Rate
The
Company is currently ramping its annual production rate from 11 MW to 25
MW and
increasing physical plant capacity for MW class products in response to the
current and anticipated demand from Asia and California,. We expect to invest
approximately $10 - $15 million over the next fifteen months to increase
the
physical plant capacity to approximately 60 MW of annual production
volume.
The
Offering
|
|
500,000
shares.
|
| |
|
|
Common
stock to be outstanding after this offering
|
68,526,496
shares.(1)
|
| |
|
|
Use
of proceeds
|
We
are registering 500,000 shares of our common stock on a registration
statement on Form S-1, for which this prospectus forms a part,
which may
be offered to certain of our employees as partial payment for annual
bonuses earned and to be earned by such employees with respect
to our
performance targets for future fiscal years ending October 31,
2007, 2008
and 2009. No proceeds will be received by us from the offer and
issuance
of these shares. We may actually offer fewer shares to employees
depending
on such factors as actual performance of the employees and future
market
prices of the Company's stock. See section entitled “Use of
Proceeds”.
|
| |
|
|
Risk
factors
|
See
section entitled “Risk Factors” and other information in this prospectus
for a discussion of factors you should carefully consider before
deciding
to invest in shares of our common stock.
|
| |
|
|
Dividend
policy
|
We
have never paid a cash dividend on our common stock and do not
anticipate
paying any cash dividends on common stock in the foreseeable
future.
|
| |
|
|
Nasdaq
Global Market symbol
|
FCEL.
|
(1)
The
above outstanding share information is based upon shares of our common stock
outstanding as of September 30, 2007. The above outstanding share information
excludes:
•approximately
5,457,022 shares of our common stock issuable upon conversion of 64,120 shares
of our 5% Series B Cumulative Convertible Perpetual Preferred
Stock;
•207,952
shares of our common stock issuable upon conversion of the Series 1 preferred
shares issued by FuelCell Energy, Ltd., our wholly-owned Canadian subsidiary
(formerly known as FCE Canada, Inc.);
•905,000
shares of our common stock issuable upon the exercise of warrants outstanding
at
September 30, 2007;
•5,353,886
shares of our common stock issuable upon the exercise of options outstanding
at
September 30, 2007 under our stock option plans;
•2,041,886
shares of our common stock available for future issuance under our stock
option
plans; and
•308,270
shares of our common stock available for future issuance under our employee
stock purchase plan.
Summary
Financial Information
The
selected consolidated financial data presented below for each of the years
in
the five-year period ended October 31, 2006 have been derived from our audited
consolidated financial statements, respectively, together with the notes
thereto
incorporated by reference in this prospectus. The data set forth below is
qualified by reference to, and should be read in conjunction with, such
financial statements and “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” incorporated by reference in this
prospectus.
(Amounts
presented in thousands, except for per share amounts)
Consolidated
Statement of Operations Data:
| |
|
|
|
For
the fiscal year ended October 31,
|
|
| |
|
For the
nine
months
ended
July
31,
2007
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
Revenues:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Product
sales and revenue
|
|
$
|
21,567
|
|
$
|
21,514
|
|
$
|
17,398
|
|
$
|
12,636
|
|
$
|
16,081
|
|
$
|
7,656
|
|
|
Research
and development contracts
|
|
|
10,194
|
|
|
11,774
|
|
|
12,972
|
|
|
18,750
|
|
|
17,709
|
|
|
33,575
|
|
|
Total
revenues
|
|
|
31,761
|
|
|
33,288
|
|
|
30,370
|
|
|
31,386
|
|
|
33,790
|
|
|
41,231
|
|
|
Costs
and expenses:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cost
of product sales and revenues
|
|
|
44,679
|
|
|
61,526
|
|
|
52,067
|
|
|
39,961
|
|
|
50,391
|
|
|
32,129
|
|
|
Cost
of research and development contracts
|
|
|
8,758
|
|
|
10,330
|
|
|
13,183
|
|
|
27,290
|
|
|
35,827
|
|
|
45,664
|
|
|
Administrative
and selling expenses
|
|
|
13,866
|
|
|
17,759
|
|
|
14,154
|
|
|
14,901
|
|
|
12,631
|
|
|
10,451
|
|
|
Research
and development expenses
|
|
|
20,489
|
|
|
24,714
|
|
|
21,840
|
|
|
26,677
|
|
|
8,509
|
|
|
6,806
|
|
|
Purchased
in-process research and development
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
12,200
|
|
|
—
|
|
|
—
|
|
|
Total
costs and expenses
|
|
|
87,792
|
|
|
114,329
|
|
|
101,244
|
|
|
121,029
|
|
|
107,358
|
|
|
95,050
|
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Loss
from operations
|
|
|
(56,031
|
)
|
|
(81,041
|
)
|
|
(70,874
|
)
|
|
(89,643
|
)
|
|
(73,568
|
)
|
|
(53,819
|
)
|
|
License
fee income, net
|
|
|
34
|
|
|
42
|
|
|
70
|
|
|
19
|
|
|
270
|
|
|
270
|
|
|
Interest
expense
|
|
|
(72
|
)
|
|
(103
|
)
|
|
(103
|
)
|
|
(137
|
)
|
|
(128
|
)
|
|
(160
|
)
|
|
Loss
from equity investments
|
|
|
(1,032
|
)
|
|
(828
|
)
|
|
(1,553
|
)
|
|
—
|
|
|
—
|
|
|
—
|
|
|
Interest
and other income, net
|
|
|
5,654
|
|
|
5,718
|
|
|
5,526
|
|
|
2,472
|
|
|
6,012
|
|
|
4,876
|
|
|
Redeemable
minority interest
|
|
|
(1,233
|
)
|
|
107
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
Provision
for taxes
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(7
|
)
|
|
Loss
from continuing operations
|
|
|
(52,680
|
)
|
|
(76,105
|
)
|
|
(66,934
|
)
|
|
(87,289
|
)
|
|
(67,414
|
)
|
|
(48,840
|
)
|
|
Discontinued
operations, net of tax
|
|
|
—
|
|
|
—
|
|
|
(1,252
|
)
|
|
846
|
|
|
—
|
|
|
—
|
|
|
Net
loss
|
|
|
(52,680
|
)
|
|
(76,105
|
)
|
|
(68,186
|
)
|
|
(86,443
|
)
|
|
(67,414
|
)
|
|
(48,840
|
)
|
|
Preferred
stock dividends
|
|
|
(2,406
|
)
|
|
(8,117
|
)
|
|
(6,077
|
)
|
|
(964
|
)
|
|
—
|
|
|
—
|
|
|
Net
loss to common shareholders
|
|
$
|
(55,086
|
)
|
$
|
(84,222
|
)
|
$
|
(74,263
|
)
|
$
|
(87,407
|
)
|
$
|
(67,414
|
)
|
$
|
(48,840
|
)
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
and diluted loss per share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuing
operations
|
|
$
|
(.92
|
)
|
$
|
(1.65
|
)
|
$
|
(1.51
|
)
|
$
|
(1.84
|
)
|
$
|
(1.71
|
)
|
$
|
(1.25
|
)
|
|
Discontinued
operations
|
|
|
—
|
|
|
—
|
|
|
(.03
|
)
|
|
0.01
|
|
|
—
|
|
|
—
|
|
|
Net
loss to common shareholders
|
|
$
|
(.92
|
)
|
$
|
(1.65
|
)
|
$
|
(1.54
|
)
|
$
|
(1.83
|
)
|
$
|
(1.71
|
)
|
$
|
(1.25
|
)
|
|
Basic
and diluted weighted average shares Outstanding
|
|
|
59,967
|
|
|
51,047
|
|
|
48,261
|
|
|
47,875
|
|
|
39,342
|
|
|
39,135
|
|
Consolidated
Balance Sheet Data:
| |
|
As of July 31,
|
|
As
of October 31,
|
|
| |
|
2007
|
|
2006
|
|
2005
|
|
2004
|
|
2003
|
|
2002
|
|
|
Cash,
cash equivalents and short term investments (U.S. treasury
securities)
|
|
$
|
167,542
|
|
$
|
107,533
|
|
$
|
136,032
|
|
$
|
152,395
|
|
$
|
134,750
|
|
$
|
205,996
|
|
|
Working
capital
|
|
|
171,466
|
|
|
104,307
|
|
|
140,736
|
|
|
156,798
|
|
|
143,998
|
|
|
218,423
|
|
|
Total
current assets
|
|
|
209,278
|
|
|
133,709
|
|
|
161,894
|
|
|
178,866
|
|
|
160,792
|
|
|
234,739
|
|
|
Long-term
investments (U.S. treasuries)
|
|
|
—
|
|
|
13,054
|
|
|
43,928
|
|
|
—
|
|
|
18,690
|
|
|
14,542
|
|
|
Total
assets
|
|
|
262,863
|
|
|
206,652
|
|
|
265,520
|
|
|
236,510
|
|
|
223,363
|
|
|
289,803
|
|
|
Total
current liabilities
|
|
|
37,812
|
|
|
29,402
|
|
|
21,158
|
|
|
22,070
|
|
|
16,794
|
|
|
16,316
|
|
|
Total
non-current liabilities
|
|
|
5,455
|
|
|
5,840
|
|
|
2,892
|
|
|
1,476
|
|
|
1,484
|
|
|
1,785
|
|
|
Redeemable
minority interest
|
|
|
11,464
|
|
|
10,665
|
|
|
11,517
|
|
|
10,259
|
|
|
—
|
|
|
—
|
|
|
Redeemable
preferred stock
|
|
|
59,950
|
|
|
59,950
|
|
|
98,989
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
Total
shareholders’ equity
|
|
|
148,182
|
|
|
100,795
|
|
|
130,964
|
|
|
202,705
|
|
|
205,085
|
|
|
271,702
|
|
|
Book
value per share(1)
|
|
$
|
2.18
|
|
$
|
1.90
|
|
$
|
2.70
|
|
$
|
4.21
|
|
$
|
5.20
|
|
$
|
6.93
|
|
________
(1) Calculated
as total shareholders’ equity divided by common shares issued and outstanding as
of the balance sheet date.
RISK
FACTORS
Investing
in our securities involves risks. Before investing in our securities, you
should
carefully consider the following risk factors as well as the other information
included and incorporated by reference in this prospectus. If any of the
following risks actually occur, our business, financial condition, or results
of
operations and could be materially and adversely affected. In such cases,
the
trading price of our securities could decline, and you may lose all or part
of
your investment.
We
have recently incurred losses and anticipate continued losses and negative
cash
flow.
We
have
been transitioning from a contract research and development company to a
commercial products developer and manufacturer. As such, we have not been
profitable since our fiscal year ended October 31, 1997. We expect to continue
to incur net losses and generate negative cash flow until we can produce
sufficient revenues to cover our costs. We may never become profitable. Even
if
we do achieve profitability, we may be unable to sustain or increase our
profitability in the future. For the reasons discussed in more detail below,
there are substantial uncertainties associated with our achieving and sustaining
profitability. We have, from time to time, sought financing in the public
markets in order to fund operations. Our future ability to obtain such
financing, if required, could be impaired by a variety of factors including
the
price of our common stock and general market conditions.
Our
cost reduction strategy may not succeed or may be significantly delayed,
which
may result in our inability to offer our products at competitive prices and
may
adversely affect our sales.
Our
cost
reduction strategy is based on the assumption that a significant increase
in
production will result in economies of scale. In addition, our cost reduction
strategy relies on advancements in our manufacturing process, global competitive
sourcing, engineering design and technology (including projected power output).
Failure to achieve our cost reduction targets would have a material adverse
effect on our commercialization plans and, therefore, our business, prospects,
results of operations and financial condition.
Our
products will compete with products using other energy sources, and if the
prices of the alternative sources are lower than energy sources used by our
products, sales of our products will be adversely
affected.
Our
Direct FuelCell®
has been
operated using a variety of hydrocarbon fuels, including natural gas, methanol,
diesel, biogas, coal gas, coal mine methane and propane. If these fuels are
not
readily available or if their prices increase such that electricity produced
by
our products costs more than electricity provided by other generation sources,
our products would be less economically attractive to potential customers.
In
addition, we have no control over the prices of several types of competitive
energy sources such as oil, gas or coal. Significant decreases (or short
term
increases) in the price of these fuels could also have a material adverse
effect
on our business because other generation sources could be more economically
attractive to consumers than our products.
We
have signed long-term power purchase and service agreements with customers
which
are subject to market conditions and operating risks that may affect our
operating results.
Under
the
terms of our power purchase agreements, customers agree to purchase power
from
our fuel cell power plants at negotiated rates, generally for periods of
five to
ten years. Electricity rates are generally a function of the customer’s current
and future electricity pricing available from the grid. Revenues are earned
and
collected under these PPAs as power is produced. As owner of the power plants
in
these PPA entities, we are responsible for all operating costs necessary
to
maintain, monitor and repair the power plants. Under certain agreements,
we are
also responsible for procuring fuel, generally natural gas, to run the power
plants. Should electricity rates decrease or operating costs increase from
our
original estimates, our results of operations could be negatively impacted.
We
have qualified for incentive funding for these projects in California under
the
states’ Self Generation Incentive Funding Program and from other government
programs. Funds are payable upon commercial installation and demonstration
of
the plant and may require return of the funds for failure of certain performance
requirements. Revenue related to these incentive funds is recognized ratably
over the performance period. We are not required to produce minimum amounts
of
power under our PPA agreements and we have the right to terminate PPA agreements
by giving written notice to the customer, subject to certain exit
costs.
We
have
contracted with certain customers to provide service of fuel cell power plants
over terms ranging from one to thirteen years. Under the provisions of these
contracts, we provide services to maintain, monitor and repair customer power
plants. Pricing for service contracts is based upon estimates of future costs,
which given the early stage of development could be materially different
from
actual expenses.
We
extend product warranties which could affect
our operating results.
We
warranty our products for a specific period of time against manufacturing
or
performance defects. As we have limited operating experience, warranty costs
are
expensed as incurred. As a result operating results could be negatively impacted
should there be product manufacturing or performance defects.
We
currently face and will continue to face significant
competition.
Our
Direct FuelCell®
currently faces, and will continue to face, significant competition. We compete
on the basis of our products’ reliability, fuel efficiency, environmental
considerations and cost. Technological advances in alternative energy products
or improvements in the electric grid or other sources of power generation,
or
other fuel cell technologies may negatively affect the development or sale
of
some or all of our products or make our products non-competitive or obsolete
prior to commercialization or afterwards. Other companies, some of which
have
substantially greater resources than ours, are currently engaged in the
development of products and technologies that are similar to, or may be
competitive with, our products and technologies.
Several
companies in the U.S. are involved in fuel cell development, although we
believe
we are the only domestic company engaged in significant manufacturing and
commercialization of carbonate fuel cells. Emerging fuel cell technologies
(and
companies developing them) include proton exchange membrane fuel cells (Ballard
Power Systems, Inc.; United Technologies Corp. or UTC Fuel Cells; and Plug
Power), phosphoric acid fuel cells (UTC Fuel Cells) and solid oxide fuel
cells
(Siemens Westinghouse Electric Company, SOFCo, General Electric, Delphi,
Rolls
Royce and Acumentrics). Each of these competitors has the potential to capture
market share in our target markets.
There
are
other potential carbonate fuel cell competitors internationally. In Europe,
a
company in Italy, Ansaldo Fuel Cells, is actively engaged in carbonate fuel
cell
development and is a potential competitor.
Other
than fuel cell developers, we must also compete with such companies as
Caterpillar, Cummins, and Detroit Diesel, which manufacture more mature
combustion-based equipment, including various engines and turbines, and have
well-established manufacturing, distribution, and operating and cost features.
Significant competition may also come from gas turbine companies like General
Electric, Ingersoll Rand, Solar Turbines and Kawasaki, which have recently
made
progress in improving fuel efficiency and reducing pollution in large-size
combined cycle natural gas fueled generators. These companies have also made
efforts to extend these advantages to smaller sizes.
We
have large and influential stockholders, which may make it difficult for
a third
party to acquire our common stock.
As
of
September 30, 2007, our largest three institutional shareholders each own
more
than 5%, but less than 10%, of our outstanding common stock. POSCO Power
owns
approximately 6% of our outstanding common stock. MTU Friedrichshafen GmbH
(“MTU”) owns approximately 4% of our outstanding common stock and MTU is the
sole owner of our European licensee, CFC Solutions GmbH. MTU was acquired
by the
private equity fund EQT IV in March 2006, which now operates under the name
Tognum GmbH. James D. Gerson beneficially owns approximately 2% of our
outstanding common stock. Loeb Investors Co. LXXV beneficially owns
approximately 1% of our outstanding common stock. These ownership levels
could
make it difficult for a third party to acquire our common stock or have input
into the decisions made by our board of directors, which include Michael
Bode
(Chief Executive Officer of CFC Solutions GmbH), James D. Gerson, and Thomas
L.
Kempner (Chairman and Chief Executive Officer of an affiliate of Loeb Investors
Co. LXXV). CFC and POSCO Power are also a licensee of our technology and
purchasers of Direct FuelCell®
products. Therefore, it may be in their interests to possess substantial
influence over matters concerning our overall strategy and technological
and
commercial development.
CFC
may develop competing technologies.
CFC
Solutions GmbH is currently developing carbonate fuel cell technology. If
this
technology does not use DFC know-how, CFC must use good faith efforts to
license
the technology to us. If CFC is successful but does not grant us a license,
it
may be directly competing with us while having a significant ownership interest
in us, and a seat on our board of directors. We have agreed with CFC to continue
developing products with as much commonality as possible. However, the license
agreement between us and CFC provides that each of us retains the right to
independently pursue the development of carbonate fuel cell
technologies.
We
have limited experience manufacturing our Direct
FuelCell®
products on a commercial basis, which may adversely affect our planned increases
in production capacity and our ability to satisfy customer
requirements.
We
have
limited experience manufacturing our Direct FuelCell®
products
on a commercial basis. Our manufacturing, testing and conditioning facilities
have equipment in place for a production capacity of 50 MW per year. We expect
that we will then increase our manufacturing capacity based on market demand.
We
cannot be sure that we will be able to achieve any planned increases in
production capacity. Also, as we scale up our production capacity, we cannot
be
sure that unplanned failures or other technical problems relating to the
manufacturing process will not occur.
Even
if
we are successful in achieving our planned increases in production capacity,
we
cannot be sure that we will do so in time to meet our product commercialization
schedule or to satisfy the requirements of our customers. Additionally, we
cannot be sure that we will be able to develop efficient, low-cost manufacturing
capabilities and processes (including automation) that will enable us to
meet
our cost goals and profitability projections. Our failure to develop advanced
manufacturing capabilities and processes, or meet our cost goals, could have
a
material adverse effect on our business, prospects, results of operations
and
financial condition.
Unanticipated
increases or decreases in business growth may result in adverse financial
consequences for us.
If
our
business grows more quickly than we anticipate, our existing and planned
manufacturing facilities may become inadequate and we may need to seek out
new
or additional space, at considerable cost to us. If our business does not
grow
as quickly as we expect, our existing and planned manufacturing facilities
would, in part, represent excess capacity for which we may not recover the
cost;
in that circumstance, our revenues may be inadequate to support our committed
costs and our planned growth and our gross margins and business strategy
would
be adversely affected.
Our
plans are dependent on market acceptance of our Direct
FuelCell®
products.
Our
plans
are dependent upon market acceptance of, as well as enhancements to, those
products. Fuel cell systems represent an emerging market, and we cannot be
sure
that potential customers will accept fuel cells as a replacement for traditional
power sources. As is typical in a rapidly evolving industry, demand and market
acceptance for recently introduced products and services are subject to a
high
level of uncertainty and risk. Since the distributed generation market is
still
evolving, it is difficult to predict with certainty the size of the market
and
its growth rate. The development of a market for our Direct FuelCell®
products
may be affected by many factors that are out of our control,
including:
• the
cost
competitiveness of our fuel cell products;
• the
future costs of natural gas and other fuels used by our fuel cell
products;
• consumer
reluctance to try a new product;
• perceptions
of the safety of our fuel cell products;
• the
market for distributed generation;
• local
permitting and environmental requirements; and
• the
emergence of newer, more competitive technologies and products.
If
a
sufficient market fails to develop or develops more slowly than we anticipate,
we may be unable to recover the losses we will have incurred in the development
of Direct FuelCell®
products
and may never achieve profitability.
As
we
continue to commercialize our Direct FuelCell®
products, we will continue to develop warranties, production guarantees and
other terms and conditions relating to our products that will be acceptable
to
the marketplace, and continue to develop a service organization that will
aid in
servicing our products and obtain self-regulatory certifications, if available,
with respect to our products. Failure to achieve any of these objectives
may
also slow the development of a sufficient market for our products and,
therefore, have a material adverse effect on our results of
operations.
Our
government research and development contracts are subject to the risk of
termination by the contracting party and we may not realize the full amounts
allocated under the contracts due to the lack of Congressional
appropriations.
A
portion
of our fuel cell revenues have been derived from long-term cooperative
agreements and other contracts with the U.S. DOE, the U.S. Department of
Defense, the U.S. Navy and other U.S. government agencies. These agreements
are
important to the continued development of our technology and our
products.
Generally,
our U.S. government research and development contracts, are subject to the
risk
of termination at the convenience of the contracting agency. Furthermore,
these
contracts, irrespective of the amounts allocated by the contracting agency,
are
subject to annual Congressional appropriations and the results of government
or
agency sponsored reviews and audits of our cost reduction projections and
efforts. We can only receive funds under these contracts ultimately made
available to us annually by Congress as a result of the appropriations process.
Accordingly, we cannot be sure whether we will receive the full amounts awarded
under our government research and development or other contracts. Failure
to
receive the full amounts under any of our government research and development
contracts could materially and adversely affect our business prospects, results
of operations and financial condition.
A
negative government audit could result in an adverse adjustment of our revenue
and costs and could result in civil and criminal
penalties
Government
agencies, such as the Defense
Contract Audit Agency,
routinely audit and investigate government contractors. These agencies review
a
contractor’s performance under its contracts, cost structure and compliance with
applicable laws, regulations and standards. If the agencies determine through
these audits or reviews that we improperly allocated costs to specific
contracts, they will not reimburse us for these costs. Therefore, an audit
could
result in adjustments to our revenue and costs.
Further,
although we have internal controls in place to oversee our government contracts,
no assurance can be given that these controls are sufficient to prevent isolated
violations of applicable laws, regulations and standards. If the agencies
determine that we or one of our subcontractors engaged in improper conduct,
we
may be subject to civil or criminal penalties and administrative sanctions,
payments, fines and suspension or prohibition from doing business with the
government, any of which could materially affect our financial condition.
The
U.S. government has certain rights relating to our intellectual property,
including restricting or taking title to certain
patents.
Many
of
our U.S. patents relating to our fuel cell technology are the result of
government-funded research and development programs. Two of our patents that
were the result of DOE-funded research prior to January 1988 (the date that
we
qualified as a “small business”) are owned by the U.S. government and have been
licensed to us. This license is revocable only in the limited circumstances
where it has been demonstrated that we are not making an effort to commercialize
the invention. We own all patents resulting from research funded by our DOE
contracts awarded after January 1988 to date, based on our “small business”
status when each contract was awarded. Under current regulations, patents
resulting from research funded by government agencies other than the DOE
are
owned by us, whether or not we are a “small business.”
Ten
U.S.
patents that we own have resulted from government-funded research and are
subject to the risk of exercise of “march-in” rights by the government. March-in
rights refer to the right of the U.S. government or a government agency to
exercise its non-exclusive, royalty-free, irrevocable worldwide license to
any
technology developed under contracts funded by the government if the contractor
fails to continue to develop the technology. These “march-in” rights permit the
U.S. government to take title to these patents and license the patented
technology to third parties if the contractor fails to utilize the patents.
In
addition, our DOE-funded research and development agreements also require
us to
agree that we will not provide to a foreign entity any fuel cell technology
subject to that agreement unless the fuel cell technology will be substantially
manufactured in the U.S. Accordingly, we could lose some or all of the value
of
these patents.
A
failure to qualify as a “small business” could adversely affect our rights to
own future patents under DOE-funded contracts.
Qualifying
as a “small business” under DOE contracts allows us to own the patents that we
develop under DOE contracts. A “small business” under applicable government
regulations generally consists of no more than 500 employees. If we continue
to
grow, we will no longer qualify as a “small business” and no longer own future
patents we develop under future contracts, grants or cooperative agreements
funded by the DOE based on such certification, unless we obtain a patent
waiver
from the DOE. Should we not obtain a patent waiver and outright ownership,
we
would nevertheless retain exclusive rights to any such patents, so long as
we
continue to commercialize the technology covered by the patents. As a result
of
our acquisition of Global Thermoelectric Inc., the number of our employees
increased and therefore, we temporarily did not qualify as a “small business.”
Following the sale of Global Thermoelectric Inc. and its TEG product line
on May
27, 2004, we again qualified as a “small business”; however, we cannot assure
you that we will continue to qualify as a “small business” in the
future.
Our
future success and growth is dependent on our distribution
strategy.
We
cannot
assure you that we will enter into distributor relationships that are consistent
with, or sufficient to support, our commercialization plans or our growth
strategy or that these relationships will be on terms favorable to us. Even
if
we enter into these types of relationships, we cannot assure you that the
distributors with which we form relationships will focus adequate resources
on
selling our products or will be successful in selling them. Some of these
distributor arrangements have or will require that we grant exclusive
distribution rights to companies in defined territories. These exclusive
arrangements could result in us being unable to enter into other arrangements
at
a time when the distributor with which we form a relationship is not successful
in selling our products or has reduced its commitment to marketing our products.
In addition, certain distributor arrangements include, and some future
distributor arrangements may also include, the issuance of equity and warrants
to purchase our equity, which may have an adverse effect on our stock price.
To
the extent we enter into distributor relationships, the failure of these
distributors in assisting us with the marketing and distribution of our products
may adversely affect our results of operations and financial
condition.
We
cannot
be sure that CFC Solutions GmbH will continue to, or original equipment
manufacturers (“OEMs”) will, manufacture or package products using our Direct
FuelCell® components. In this area, our success will largely depend
upon our ability to make our products compatible with the power plant products
of OEMs and the ability of these OEMs to sell their products containing our
products. In addition, some OEMs may need to redesign or modify their existing
power plant products to fully incorporate our products. Accordingly, any
integration, design, manufacturing or marketing problems encountered by CFC
or
other OEMs could adversely affect the market for our Direct FuelCell®
products and, therefore, our business, prospects, results of
operations
and financial condition.
We
depend on third party suppliers for the development and supply of key components
for Direct FuelCell®
products.
We
purchase several key components of our Direct FuelCell®
products
from other companies and rely on third-party suppliers for the balance-of-plant
components in our Direct FuelCell®
products. There are a limited number of suppliers for some of the key components
of Direct FuelCell®
products. A supplier’s failure to develop and supply components in a timely
manner or to supply components that meet our quality, quantity or cost
requirements or technical specifications or our inability to obtain alternative
sources of these components on a timely basis or on terms acceptable to us
could
harm our ability to manufacture our Direct FuelCell®
products. In addition, to the extent the processes that our suppliers use
to
manufacture components are proprietary, we may be unable to obtain comparable
components from alternative suppliers.
We
do not
know when or whether we will secure long-term supply relationships with any
of
our suppliers or whether such relationships will be on terms that will allow
us
to achieve our objectives. Our business, prospects, results of operations
and
financial condition could be harmed if we fail to secure long-term relationships
with entities that will supply the required components for our Direct
FuelCell®
products.
We
depend on our intellectual property, and our failure to protect that
intellectual property could adversely affect our future growth and success.
Failure
to protect our existing intellectual property rights may result in the loss
of
our exclusivity or the right to use our technologies. If we do not adequately
ensure our freedom to use certain technology, we may have to pay others for
rights to use their intellectual property, pay damages for infringement or
misappropriation or be enjoined from using such intellectual property. We
rely
on patent, trade secret, trademark and copyright law to protect our intellectual
property. The patents that we have obtained will expire between 2008 and
2024
and the average remaining life of our U.S. patents is approximately 11.4
years.
Some
of
our intellectual property is not covered by any patent or patent application
and
includes trade secrets and other know-how that is not patentable, particularly
as it relates to our manufacturing processes and engineering design. In
addition, some of our intellectual property includes technologies and processes
that may be similar to the patented technologies and processes of third parties.
If we are found to be infringing third-party patents, we do not know whether
we
will able to obtain licenses to use such patents on acceptable terms, if
at all.
Our patent position is subject to complex factual and legal issues that may
give
rise to uncertainty as to the validity, scope and enforceability of a particular
patent. Accordingly, we cannot assure you that:
• any
of
the U.S., Canadian or other foreign patents owned by us or other patents
that
third parties license to us will not be invalidated, circumvented, challenged,
rendered unenforceable or licensed to others; or,
• any
of
our pending or future patent applications will be issued with the breadth
of
claim coverage sought by us, if issued at all.
In
addition, effective patent, trademark, copyright and trade secret protection
may
be unavailable, limited or not applied for in certain foreign
countries.
We
also
seek to protect our proprietary intellectual property, including intellectual
property that may not be patented or patentable, in part by confidentiality
agreements and, if applicable, inventors’ rights agreements with our
subcontractors, vendors, suppliers, consultants, strategic partners and
employees. We cannot assure you that these agreements will not be breached,
that
we will have adequate remedies for any breach or that such persons or
institutions will not assert rights to intellectual property arising out
of
these relationships. Certain of our intellectual property has been licensed
to
us on a non-exclusive basis from third parties that may also license such
intellectual property to others, including our competitors. If our licensors
are
found to be infringing third-party patents, we do not know whether we will
be
able to obtain licenses to use the intellectual property licensed to us on
acceptable terms, if at all.
If
necessary or desirable, we may seek extensions of existing licenses or further
licenses under the patents or other intellectual property rights of others.
However, we can give no assurances that we will obtain such extensions or
further licenses or that the terms of any offered licenses will be acceptable
to
us. The failure to obtain a license from a third party for intellectual property
that we use at present could cause us to incur substantial liabilities, and
to
suspend the manufacture or shipment of products or our use of processes
requiring the use of that intellectual property.
While
we
are not currently engaged in any material intellectual property litigation,
we
could become subject to lawsuits in which it is alleged that we have infringed
the intellectual property rights of others or commence lawsuits against others
who we believe are infringing upon our rights. Our involvement in intellectual
property litigation could result in significant expense to us, adversely
affecting the development of sales of the challenged product or intellectual
property and diverting the efforts of our technical and management personnel,
whether or not that litigation is resolved in our favor.
Our
future success will depend on our ability to attract and retain qualified
management and technical personnel.
Our
future success is substantially dependent on the continued services and on
the
performance of our executive officers and other key management, engineering,
scientific, manufacturing and operating personnel, particularly R. Daniel
Brdar,
our Chief Executive Officer and the Chairman of the Board of Directors. The
loss
of the services of any executive officer, including Mr. Brdar, or other key
management, engineering, scientific, manufacturing and operating personnel,
could materially adversely affect our business. Our ability to achieve our
development and commercialization plans will also depend on our ability to
attract and retain additional qualified management and technical personnel.
Recruiting personnel for the fuel cell industry is competitive. We do not
know
whether we will be able to attract or retain additional qualified management
and
technical personnel. Our inability to attract and retain additional qualified
management and technical personnel, or the departure of key employees, could
materially and adversely affect our development and commercialization plans
and,
therefore, our business, prospects, results of operations and financial
condition.
Our
management may be unable to manage rapid growth
effectively.
We
may
rapidly expand our manufacturing capabilities, accelerate the commercialization
of our products and enter a period of rapid growth, which will place a
significant strain on our senior management team and our financial and other
resources. Any expansion may expose us to increased competition, greater
overhead, marketing and support costs and other risks associated with the
commercialization of a new product. Our ability to manage rapid growth
effectively will require us to continue to improve our operations, to improve
our financial and management information systems and to train, motivate and
manage our employees. Difficulties in effectively managing the budgeting,
forecasting and other process control issues presented by such a rapid expansion
could harm our business, prospects, results of operations and financial
condition.
We
may be affected by environmental and other governmental
regulation.
We
are
subject to federal, state, provincial or local regulation with respect to,
among
other things, emissions and siting. Assuming no co-generation applications
are
used in conjunction with our Direct FuelCell®
plants,
they will discharge humid flue gas at temperatures of up to 800o
F, water
at temperatures of approximately 10-20
o
F above
surrounding air temperatures and carbon dioxide.
In
addition, it is possible that industry-specific laws and regulations will
be
adopted covering matters such as transmission scheduling, distribution and
the
characteristics and quality of our products, including installation and
servicing. These regulations could limit the growth in the use of carbonate
fuel
cell products, decrease the acceptance of fuel cells as a commercial product
and
increase our costs and, therefore, the price of our Direct FuelCell®
products. Accordingly, compliance with existing or future laws and regulations
could have a material adverse effect on our business, prospects, results
of
operations and financial condition.
Utility
companies could impose customer fees or interconnection requirements on our
customers that could make our products less
desirable.
Utility
companies commonly charge fees to larger, industrial customers for disconnecting
from the electric grid or for having the capacity to use power from the electric
grid for back up purposes. These fees could increase the cost to our customers
of using our Direct FuelCell®
products
and could make our products less desirable, thereby harming our business,
prospects, results of operations and financial condition.
Several
states have created and adopted or are in the process of creating their own
interconnection regulations covering both technical and financial requirements
for interconnection to utility grids. Depending on the complexities of the
requirements, installation of our systems may become burdened with additional
costs that might have a negative impact on our ability to sell systems. The
Institute of Electrical and Electronics Engineers has been working to create
an
interconnection standard addressing the technical requirements for distributed
generation to interconnect to utility grids. Many parties are hopeful that
this
standard will be adopted nationally to help reduce the barriers to deployment
of
distributed generation such as fuel cells; however this standard may not
be
adopted nationally thereby limiting the commercial prospects and profitability
of our fuel cell systems.
We
could be liable for environmental damages resulting from our research,
development or manufacturing operations.
Our
business exposes us to the risk of harmful substances escaping into the
environment, resulting in personal injury or loss of life, damage to or
destruction of property, and natural resource damage. Depending on the nature
of
the claim, our current insurance policies may not adequately reimburse us
for
costs incurred in settling environmental damage claims, and in some instances,
we may not be reimbursed at all. Our business is subject to numerous federal,
state and local laws and regulations that govern environmental protection
and
human health and safety. We believe that our businesses are operating in
compliance in all material respects with applicable environmental laws, however
these laws and regulations have changed frequently in the past and it is
reasonable to expect additional and more stringent changes in the
future.
Our
operations may not comply with future laws and regulations and we may be
required to make significant unanticipated capital and operating expenditures.
If we fail to comply with applicable environmental laws and regulations,
governmental authorities may seek to impose fines and penalties on us or
to
revoke or deny the issuance or renewal of operating permits and private parties
may seek damages from us. Under those circumstances, we might be required
to
curtail or cease operations, conduct site remediation or other corrective
action, or pay substantial damage claims.
We
may be required to conduct environmental remediation activities, which could
be
expensive.
We
are
subject to a number of environmental laws and regulations, including those
concerning the handling, treatment, storage and disposal of hazardous materials.
These environmental laws generally impose liability on present and former
owners
and operators, transporters and generators for remediation of contaminated
properties. We believe that our businesses are operating in compliance in
all
material respects with applicable environmental laws, many of which provide
for
substantial penalties for violations. We cannot assure you that future changes
in such laws, interpretations of existing regulations or the discovery of
currently unknown problems or conditions will not require substantial additional
expenditures. Any noncompliance with these laws and regulations could subject
us
to material administrative, civil or criminal penalties or other liabilities.
In
addition, we may be required to incur substantial costs to comply with current
or future environmental and safety laws and regulations.
Our
products use inherently dangerous, flammable fuels, operate at high temperatures
and use corrosive carbonate material, each of which could subject our business
to product liability claims.
Our
business exposes us to potential product liability claims that are inherent
in
products that use hydrogen. Our products utilize fuels such as natural gas
and
convert these fuels internally to hydrogen that is used by our products to
generate electricity. The fuels we use are combustible and may be toxic.
In
addition, our Direct FuelCell®
products
operate at high temperatures and our Direct FuelCell®
products
use corrosive carbonate material, which could expose us to potential liability
claims. Although we have comprehensive safety, maintenance and training programs
in place, we cannot guarantee there will not be accidents. Any accidents
involving our products or other hydrogen-using products could materially
impede
widespread market acceptance and demand for our Direct FuelCell®
products. In addition, we might be held responsible for damages beyond the
scope
of our insurance coverage. We also cannot predict whether we will be able
to
maintain our insurance coverage on acceptable terms.
We
are subject to risks inherent in international
operations.
Since
we
market our Direct FuelCell®
products
both inside and outside the U.S. and Canada, our success depends, in part,
on
our ability to secure international customers and our ability to manufacture
products that meet foreign regulatory and commercial requirements in target
markets. We have limited experience developing and manufacturing our products
to
comply with the commercial and legal requirements of international markets.
In
addition, we are subject to tariff regulations and requirements for export
licenses, particularly with respect to the export of some of our technologies.
We face numerous challenges in our international expansion, including unexpected
changes in regulatory requirements, fluctuations in currency exchange rates,
longer accounts receivable requirements and collections, difficulties in
managing international operations, potentially adverse tax consequences,
restrictions on repatriation of earnings and the burdens of complying with
a
wide variety of international laws. Any of these factors could adversely
affect
our operations and revenues.
Our
stock price has been and could remain volatile.
The
market price for our common stock has been and may continue to be volatile
and
subject to extreme price and volume fluctuations in response to market and
other
factors, including the following, some of which are beyond our
control:
• failure
to meet our product development and commercialization milestones;
• variations
in our quarterly operating results from the expectations of securities analysts
or investors;
• downward
revisions in securities analysts’ estimates or changes in general market
conditions;
• announcements
of technological innovations or new products or services by us or our
competitors;
• announcements
by us or our competitors of significant acquisitions, strategic partnerships,
joint ventures or capital commitments;
• additions
or departures of key personnel;
• investor
perception of our industry or our prospects;
• insider
selling or buying;
• demand
for our common stock; and
• general
technological or economic trends.
In
the
past, following periods of volatility in the market price of their stock,
many
companies have been the subjects of securities class action litigation. If
we
became involved in securities class action litigation in the future, it could
result in substantial costs and diversion of management’s attention and
resources and could harm our stock price, business, prospects, results of
operations and financial condition.
Provisions
of Delaware and Connecticut law and of our charter and by-laws may make a
takeover more difficult.
Provisions
in our certificate of incorporation and by-laws and in Delaware and Connecticut
corporate law may make it difficult and expensive for a third party to pursue
a
tender offer, change in control or takeover attempt that is opposed by our
management and board of directors. Public stockholders who might desire to
participate in such a transaction may not have an opportunity to do so. These
anti-takeover provisions could substantially impede the ability of public
stockholders to benefit from a change in control or change in our management
and
board of directors.
We
depend on relationships with strategic partners, and the terms and
enforceability of many of these relationships are not
certain.
We
have
entered into relationships with strategic partners for design, product
development and distribution of our existing products, and products under
development, some of which may not have been documented by a definitive
agreement. The terms and conditions of many of these agreements allow for
termination by the partners. Termination of any of these agreements could
adversely affect our ability to design, develop and distribute these products
to
the marketplace. We cannot assure you that we will be able to successfully
negotiate and execute definitive agreements with any of these partners, and
failure to do so may effectively terminate the relevant
relationship.
Future
sales of substantial amounts of our common stock could affect the market
price
of our common stock.
Future
sales of substantial amounts of our common stock, or securities convertible
or
exchangeable into shares of our common stock, into the public market, including
shares of our common stock issued upon exercise of options and warrants,
or
perceptions that those sales could occur, could adversely affect the prevailing
market price of our common stock and our ability to raise capital in the
future.
The
rights of the Series 1 preferred shares and Series B preferred stock could
negatively impact FuelCell.
The
terms
of the Series 1 preferred shares issued by FuelCell Energy, Ltd., our
wholly-owned, indirect subsidiary, provide rights to the holder, Enbridge
Inc.
(“Enbridge”), including dividend and conversion rights among others that could
negatively impact us. For example, the terms of the Series 1 preferred shares
provide that the holders are entitled to receive cumulative dividends for
each
calendar quarter for so long as such shares are outstanding. Assuming the
exchange rate for Canadian dollars is Cdn.$1.0082 to U.S.$1.00 (exchange
rate on
October 1, 2007) at the time of the applicable dividend payment date, we
are
required to pay a preferred dividend of approximately $309,958 per calendar
quarter, subject to reduction in accordance with the terms of the Series
1
preferred shares. The terms of the Series 1 preferred shares also require
that
the holder be paid any accrued and unpaid dividends on December 31, 2010.
To the
extent that there is a significant amount of accrued dividends that is unpaid
as
of December 31, 2010 and we do not have sufficient working capital at that
time
to pay the accrued dividends, our financial condition could be adversely
affected. We have guaranteed these dividend obligations, including paying
a
minimum of Cdn.$500,000 in cash annually to Enbridge for so long as Enbridge
holds the Series 1 preferred shares. We have also guaranteed the liquidation
obligations of FuelCell Energy, Ltd. under the Series 1 preferred shares.
We
are
also required to issue common stock to the holder of the Series 1 preferred
shares if and when the holder exercises its conversion rights. The number
of
shares of common stock that we may issue upon conversion could be significant
and dilutive to our existing stockholders. For example, assuming the holder
of
the Series 1 preferred shares exercises its conversion rights after July
31,
2020 and assuming our common stock price is U.S. $9.31 (our common stock
closing
price on October 1, 2007) and the exchange rate for Canadian dollars is Cdn.
$1.0082 to U.S. $1.00 (exchange rate on October 1, 2007) at the time of
conversion, we would be required to issue approximately 2,803,626 shares
of our
common stock.
The
terms
of the Series B preferred stock also provide rights to their holders that
could
negatively impact us. Holders of the Series B preferred stock are
entitled to receive cumulative dividends at the rate of $50 per share per
year,
payable either in cash or in shares of our common stock. To the
extent the dividend is paid in shares, additional issuances could be dilutive
to
our existing stockholders and the sale of those shares could have a negative
impact on the price of our common stock. A share of our Series B preferred
stock may be converted at any time, at the option of the holder, into 85.1064
shares of our common stock (which is equivalent to an initial conversion
price
of $11.75 per share), plus cash in lieu of fractional shares. Furthermore,
the conversion rate applicable to the Series B preferred stock is subject
to
adjustment upon the occurrence of certain events.
USE
OF PROCEEDS
We
are
registering 500,000 shares of our common stock on a registration statement
on
Form S-1, for which this prospectus forms a part, which will be offered to
certain of our employees as partial payment for annual bonuses earned and
to be
earned by such employees with respect to our performance targets for our
future
fiscal years ending October 31, 2007, 2008 and 2009. No proceeds will be
received by us from the offer and issuance of these shares.
PLAN
OF DISTRIBUTION
We
are
offering 500,000 shares of our common stock to certain of our employees as
partial payment for annual bonuses earned and to be earned with respect to
our
performance targets for our future fiscal years ending October 31, 2007,
2008
and 2009. This offering will commence after the effectiveness of the
registration statement of which this prospectus forms a part and will then
continue to be made on a continuous basis for a period of three years from
the
effective date of the registration statement as follows:
•
shares
will be issued to our employees relating to payments of bonuses for our fiscal
year ending October 31, 2007 at a time no earlier than October 31, 2007 but
no
later than one year from the effective date of the registration statement;
and
•
shares
will be issued to our employees relating to payments of bonuses for our fiscal
year ending October 31, 2008 at a time no earlier than October 31, 2008 but
no
later than two years from the effective date of the registration statement.
•
shares
will be issued to our employees relating to payments of bonuses for our fiscal
year ending October 31, 2009 at a time no earlier than October 31, 2009 but
no
later than two years from the effective date of the registration statement.
We
may
actually offer fewer shares to employees depending on such factors as actual
performance of the employees and future market prices of the Company's stock.
This
is
not a resale prospectus. Upon the effective date of the registration statement
relating to this offering, the 500,000 shares will become freely tradable
upon
issuance without restriction or further registration under the Securities
Act of
1933. Notwithstanding the foregoing, any shares held by our affiliates, as
that
term is defined in Rule 144 under the Securities Act of 1933, regardless
of
whether the shares are freely tradable, may only be sold in compliance with
the
provisions of such Rule 144. In general, our affiliates are any persons that
directly, or indirectly, through one or more intermediaries, control, or
are
controlled by, or under common control with us. Subject to Rule 144 limitations
on affiliate sales, upon the effective date of the registration statement
relating to this offering, the employees who receive shares of our common
stock
hereunder will be entitled to sell their shares of common stock at various
times, at varying prices determined at the time of sale and in various
transactions including, but not limited to, on the Nasdaq Global Stock Market
or
any national securities exchange or quotation service on which our shares
of
common stock may be listed or quoted at the time of the sale.
DESCRIPTION
OF CAPITAL STOCK
General
The
following is a summary of the rights of our common stock and preferred stock
and
related provisions of our certificate of incorporation and bylaws. For more
detailed information, please see our certificate of incorporation and bylaws,
as
amended.
Authorized
and Outstanding Capital Stock
Our
authorized capital stock consists of 150,000,000 shares of common stock,
par
value $.0001 per share, and 250,000 shares of preferred stock, par value
$.01
per share, issuable in one or more series designated by our board of directors,
of which 105,875 shares of our preferred stock have been designated as 5%
Series
B Cumulative Convertible Perpetual Preferred Stock (“Series B preferred stock”).
On September 30, 2007, 68,026,496
shares
of our common stock were issued and outstanding and 64,120 shares of our
Series
B preferred stock were issued and outstanding. No other shares of our preferred
stock are issued and outstanding.
In
addition, as of September 30, 2007, there were outstanding options to purchase
5,353,886 shares of our common stock under our stock options plans, 2,041,886
shares of our common stock were available for future issuance under our stock
option plans, 308,270 shares of our common stock were available for future
issuance under our employee stock purchase plan, and there were outstanding
warrants to purchase 905,000 shares
of
our common stock. In addition, as of September 30, 2007, we were obligated,
if
and when the holders exercise their conversion rights, to issue approximately
207,952 shares
of
our common stock upon conversion of the Series 1 preferred shares and 5,457,022
shares of our common stock upon conversion of the Series B preferred stock.
As
of September 30, 2007, there were 709 holders of record of our common stock.
Common
Stock
Voting
Rights
The
holders of our common stock have one vote per share. Holders of our common
stock
are not entitled to vote cumulatively for the election of directors. Generally,
all matters to be voted on by shareholders must be approved by a majority,
or,
in the case of the election of directors, by a plurality, of the votes entitled
to be cast at a meeting at which a quorum is present by all shares of our common
stock present in person or represented by proxy, voting together as a single
class, subject to any voting rights granted to holders of any then outstanding
preferred stock.
Dividends
Holders
of our common stock will share ratably in any dividends declared by the board
of
directors, subject to the preferential rights of any of our preferred stock
then
outstanding. Dividends consisting of shares of our common stock may be paid
to
holders of shares of our common stock.
Other
Rights
In
the
event of our liquidation, dissolution or winding up, after payment of
liabilities and liquidation preferences on any of our preferred stock then
outstanding, the holders of shares of our common stock are entitled to share
ratably in all assets available for distribution. Holders of shares of our
common stock have no preemptive rights or rights to convert their shares of
our
common stock into any other securities. There are no redemption or sinking
fund
provisions applicable to the common stock.
Preferred
Stock
Under
our
certificate of incorporation, our board of directors has the authority, without
further shareholder action, to issue from time to time, preferred stock in
one
or more series and for such consideration as may be fixed from time to time
by
our board of directors. Our board also has the authority to fix and determine,
in the manner provided by law, the relative rights and preferences of the shares
of any series so established, such as dividend and voting rights. Our
certificate of incorporation authorizes 250,000 shares of preferred stock.
Prior
to the issuance of each series of preferred stock, our board will adopt
resolutions creating and designating the series as a series of preferred stock.
The board of directors may, without shareholder approval, issue preferred stock
with voting and other rights that could adversely affect the voting power and
other rights of the holders of our common stock and could have anti-takeover
effects.
Series
1 Preferred Shares
On
August
4, 2003, we entered into a combination agreement with Global Thermoelectric
Inc.
(“Global”) to combine Global with us in a share-for-share exchange pursuant to a
Plan of Arrangement subject to approval by the Court of Queen’s Bench of
Alberta, Canada. On October 31, 2003, our shareholders and the shareholders
of
Global approved the combination. On October 31, 2003, the Court of Queen’s Bench
of Alberta issued an order approving the combination. On November 3, 2003,
the
combination transaction was consummated. In the aggregate, we issued
approximately 8.2 million shares of our common stock and exchangeable shares
in
the acquisition. Following our acquisition of Global, Global’s Series 2
preferred shares remained outstanding in Global. At the time of the sale of
our
thermoelectric generator business, the holder of the Series 2 preferred shares
exchanged them for Series 1 Class A cumulative redeemable exchangeable preferred
shares (which were referred to as the Series 1 preferred shares) issued by
FuelCell Energy, Ltd., one of our indirect, wholly-owned subsidiaries. We have
guaranteed the obligations of FuelCell Energy, Ltd. under the Series 1 preferred
shares.
The
Series 1 preferred shares may be converted into shares of our common stock
at
the following conversion prices:
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Cdn.$120.22
per share of our common stock until July 31,
2010;
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|
• |
Cdn.$129.46
per share of our common stock after July 31, 2010 until July 31,
2015;
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• |
Cdn.$138.71
per share of our common stock after July 31, 2015 until July 31,
2020;
and
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at
any time after July 31, 2020, the price equal to 95% of the then
current
market price (converted to Cdn.$ at the time of such calculation)
of
shares of our common stock at the time of
conversion.
|
The
foregoing conversion prices are subject to adjustment for certain subsequent
events. As illustrated below, the number of shares of our common stock issuable
upon conversion of the Series 1 preferred shares after July 31, 2020 may be
significantly greater than the number of shares issuable prior to that
time.
The
following examples illustrate the number of shares of our common stock that
we
will be required to issue to the holder(s) of the Series 1 preferred shares
if
and when the holder(s) exercise their conversion rights pursuant to the terms
of
the Series 1 preferred shares. The following examples are based upon Cdn.$25.0
million of Series 1 preferred shares outstanding (which is the amount currently
outstanding) and assume that all accrued dividends on the Series 1 preferred
shares have been paid through the time of the conversion and, in the case of
conversions occurring after July 31, 2020, that the exchange rate for Canadian
dollars is Cdn.$1.0082 to U.S.$1.00 (exchange rate on October 1, 2007) at the
time of the conversion:
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if
the Series 1 preferred shares convert prior to July 31, 2010, we
would be
required to issue approximately 207,952 shares of our common
stock;
|
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• |
if
the Series 1 preferred shares convert after July 31, 2010, but prior
to
July 31, 2015, we would be required to issue approximately 193,110
shares
of our common stock;
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• |
if
the Series 1 preferred shares convert after July 31, 2015, but prior
to
July 31, 2020, we would be required to issue approximately 180,232
shares
of our common stock; and
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• |
if
the Series 1 preferred shares convert any time after July 31, 2020,
assuming our common stock price is U.S. $9.31 (our common stock closing
price on October 1, 2007) at the time of conversion, we would be
required
to issue approximately 2,803,626 shares of our common
stock.
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Subject
to the Business Corporations Act (Alberta), the holder of the Series 1 preferred
shares is not entitled to receive notice of or to attend or vote at any meeting
of the FuelCell Energy, Ltd. Common shareholders. At present, we own all of
the
FuelCell Energy, Ltd. common stock.
Quarterly
dividends of Cdn.$312,500 accrue on the Series 1 preferred shares (subject
to
possible reduction pursuant to the terms of the Series 1 preferred shares on
account of increases in the price of our common stock). We have agreed to pay
a
minimum of Cdn.$500,000 in cash or common stock annually to Enbridge, the sole
current holder of the Series 1 preferred shares, as long as Enbridge holds
the
shares. Interest accrues on cumulative unpaid dividends at a 2.45% quarterly
rate, compounded quarterly, until payment thereof. All cumulative unpaid
dividends must be paid by December 31, 2010. Subsequent to 2010, FuelCell
Energy, Ltd. would be required to pay annual dividend amounts totaling Cdn.$1.25
million so long as the Series 1 preferred shares remain outstanding. Cumulative
unpaid dividends of $5.7
million on the Series 1 preferred shares were outstanding as of September 30,
2007. We have guaranteed the dividend obligations of FuelCell Energy, Ltd.
to
the Series 1 preferred shareholders.
Subject
to the Business Corporations Act (Alberta), we may redeem the Series 1 preferred
shares, in whole or part, at any time, if on the day that the notice of
redemption is first given, the volume-weighted average price at which our common
stock is traded on the applicable stock exchange during the 20 consecutive
trading days ending on a date not earlier than the fifth preceding day on which
the notice of redemption is given was not less than a 20% premium to the current
conversion price on payment of Cdn.$25.00 per Series 1 preferred share to be
redeemed, together with an amount equal to all accrued and unpaid dividends
to
the date fixed for redemption. On or after July 31, 2010, the Series 1 preferred
shares are redeemable by us at any time on payment of Cdn.$25.00 per Series
1
preferred share to be redeemed together with an amount equal to all accrued
and
unpaid dividends to the date fixed for redemption. Holders of the Series 1
preferred shares do not have any mandatory or conditional redemption rights.
There are currently 1,000,000 Series 1 preferred shares
outstanding.
In
the
event of the liquidation, dissolution or winding up of FuelCell Energy, Ltd.,
whether voluntary or involuntary, or any other distribution of its assets among
its shareholders for the purpose of winding up its affairs, the holder of the
Series 1 preferred shares will be entitled to receive the amount paid on such
Series 1 preferred shares (currently Cdn.$25.0 million) together with an amount
equal to all accrued and unpaid dividends thereon, before any amount will be
paid or any of FuelCell Energy, Ltd.’s property or assets will be distributed to
the holders of FuelCell Energy, Ltd.’s common stock. After payment to the holder
of the Series 1 preferred shares of the amounts payable to them, the holder
of
the Series 1 preferred shares will not be entitled to share in any other
distribution of FuelCell Energy, Ltd.’s property or assets. We have guaranteed
the liquidation obligations of FuelCell Energy, Ltd. under the Series 1
preferred shares.
Series
B Preferred Stock
On
November 11, 2004, we entered into a purchase agreement with Citigroup Global
Markets Inc., RBC Capital Markets Corporation, Adams Harkness, Inc., and Lazard
Freres & Co., LLC (the “Initial Purchasers”) for the private placement under
Rule 144A of up to 135,000 shares of our 5% Series B Cumulative Convertible
Perpetual Preferred Stock (Liquidation Preference $1,000). On November 17,
2004
and January 25, 2005, we closed on the sale of 100,000 shares and 5,875 shares,
respectively, of Series B preferred stock to the Initial Purchasers.
At
October 31, 2006 and 2005, there were 250,000 preferred shares authorized of
which 64,120 and 105,875 Series B preferred shares were issued and outstanding,
respectively. The carrying value of the Series B preferred stock as of October
31, 2006 and 2005 represents the net proceeds to us of approximately $60.0
million and $99.0 million, respectively. During fiscal 2006, we converted 41,755
shares of Series B preferred stock into 3,553,615 shares of our common stock.
The conversion occurred pursuant to the terms of the Certificate of Designation
for the Series B preferred stock, whereby upon conversion, the holders received
85.1064 shares of our common stock per share of Series B preferred stock. In
addition, pursuant to this conversion, we paid a conversion premium of $4.3
million.
The
following is a summary of certain provisions of our Series B preferred stock.
The resale of the shares of our Series B preferred stock and the resale of
the
shares of our common stock issuable upon conversion of the shares of our Series
B preferred stock are
covered
by a registration rights agreement.
Ranking
Shares
of
our Series B preferred stock rank with respect to dividend rights and rights
upon our liquidation, winding up or dissolution:
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senior
to shares of our common stock;
|
| |
·
|
junior
to our debt obligations; and
|
| |
·
|
effectively
junior to our subsidiaries’ (i) existing and future liabilities and (ii)
capital stock held by others.
|
Dividends
The
Series B preferred stock pays cumulative annual dividends of $50 per share
which
are payable quarterly in arrears on February 15, May 15, August 15 and November
15, which commenced on February 15, 2005, when, as and if declared by the board
of directors. Dividends will be paid on the basis of a 360-day year consisting
of twelve 30-day months. Dividends on the shares of our Series B preferred
stock
will accumulate and be cumulative from the date of original issuance.
Accumulated dividends on the shares of our Series B preferred stock will not
bear any interest.
The
dividend rate on the Series B preferred stock is subject to upward adjustment
as
set forth in the certificate of designation of the Series B preferred stock
if
we fail to pay, or to set apart funds to pay, dividends on the shares of our
Series B preferred stock for any quarterly dividend period. The dividend rate
on
the Series B preferred stock is also subject to upward adjustment as set forth
in the registration rights agreement entered into with the Initial Purchasers
if
we fail to satisfy our registration obligations with respect to the Series
B
preferred stock (or the underlying common shares) set forth in the registration
rights agreement.
No
dividends or other distributions may be paid or set apart for payment upon
our
common shares (other than a dividend payable solely in shares of a like or
junior ranking) unless all accumulated and unpaid dividends have been paid
or
funds or shares of common stock therefore have been set apart on our Series
B
preferred stock.
We
may
pay dividends on the Series B preferred stock:
| |
·
|
at
the option of the holder, in shares of our common stock, which will
be
registered pursuant to a registration statement to allow for the
immediate
sale of these common shares in the public
market.
|
Liquidation
The
Series B preferred stock has a liquidation preference of $1,000 per share.
Upon
any voluntary or involuntary liquidation, dissolution or winding up of FuelCell
resulting in a distribution of assets to the holders of any class or series
of
our capital stock, each holder of shares of our Series B preferred stock will
be
entitled to payment out of our assets available for distribution of an amount
equal to the liquidation preference per share of Series B preferred stock held
by that holder, plus all accumulated and unpaid dividends on those shares to
the
date of that liquidation, dissolution, or winding up, before any distribution
is
made on any junior shares, including shares of our common stock, but after
any
distributions on any of our indebtedness or senior shares (if any). After
payment in full of the liquidation preference and all accumulated and unpaid
dividends to which holders of shares of our Series B preferred stock are
entitled, holders of shares of our Series B preferred stock will not be entitled
to any further participation in any distribution of our assets.
Conversion
A
share
of our Series B preferred stock may be converted at any time, at the option
of
the holder, into 85.1064 shares of our common stock (which is equivalent to
an
initial conversion price of $11.75 per share) plus cash in lieu of fractional
shares. The conversion rate is subject to adjustment upon the occurrence of
certain events, as described below, but will not be adjusted for accumulated
and
unpaid dividends. Upon conversion, holders of Series B preferred stock will
not
receive a cash payment for any accumulated dividends. Instead accumulated
dividends, if any, will be cancelled.
On
or
after November 20, 2009 we may, at our option, cause shares of our Series B
preferred stock to be automatically converted into that number of shares of
our
common stock that are issuable at the then prevailing conversion rate. We may
exercise our conversion right only if the closing price of our common stock
exceeds 150% of the then prevailing conversion price for 20 trading days during
any consecutive 30 trading day period, as described in the certificate of
designation for the Series B preferred stock.
If
holders of shares of our Series B preferred stock elect to convert their shares
in connection with certain fundamental changes (as described below and in the
certificate of designation), we will in certain circumstances discussed below
increase the conversion rate by a number of additional shares of common stock
upon conversion or, in lieu thereof, we may in certain circumstances elect
to
adjust the conversion rate and related conversion obligation so that shares
of
our Series B preferred stock are converted into shares of the acquiring or
surviving company, in each case as described in the certificate of
designation.
The
adjustment of the conversion price of the Series B preferred stock is to prevent
dilution of the interests of the holders of the Series B preferred stock,
including on account of the following:
|
·
|
Issuances
of common stock as a dividend or distribution to holders of our
common
stock;
|
|
·
|
Common
stock share splits or share combinations;
|
|
·
|
|
|
·
|
Distributions
of assets, evidences of indebtedness or other property to holders
of our
common stock.
|
Shares
of
our Series B preferred stock will not be redeemable by us, except in the case
of
a fundamental change (as described below and in the certificate of designation)
whereby holders may require us to purchase all or part of their shares at a
redemption price equal to 100% of the liquidation preference of the shares
of
Series B preferred stock to be repurchased, plus accrued and unpaid dividends,
if any. We may, at our option, elect to pay the redemption price in cash or,
in
shares of our common stock valued at a discount of 5% from the market price
of
shares of our common stock, or any combination thereof. Notwithstanding the
foregoing, we may only pay such redemption price in shares of our common stock
that are registered under the Securities Act of 1933 and eligible for immediate
sale in the public market by non-affiliates of FuelCell.
Redemption
by holders of the Series B preferred stock can only occur upon a fundamental
change, which we do not consider to be probable at this time. Accordingly,
future adjustments of the redemption price will only be made if and when a
fundamental change is considered probable.
A
“fundamental change” will be deemed to have occurred if any of the following
occurs:
(1)
any
"person" or "group" is or becomes the beneficial owner, directly or indirectly,
of 50% or more of the total voting power of all classes of our capital stock
then outstanding and normally entitled to vote in the election of
directors;
(2)
during any period of two consecutive years, individuals who at the beginning
of
such period constituted the Board of Directors (together with any new directors
whose election by our Board of Directors or whose nomination for election by
our
shareholders was approved by a vote of two-thirds of our directors then still
in
office who were either directors at the beginning of such period or whose
election of nomination for election was previously so approved) cease for any
reason to constitute a majority of our directors then in office;
(3)
the
termination of trading of our common stock on the Nasdaq Stock Market and such
shares are not approved for trading or quoted on any other U.S. securities
exchange; or
(4)
we
consolidate with or merge with or into another person or another person merges
with or into us or the sale, assignment, transfer, lease, conveyance or other
disposition of all or substantially all of our assets and certain of our
subsidiaries, taken as a whole, to another person and, in the case of any such
merger or consolidation, our securities that are outstanding immediately prior
to such transaction and which represent 100% of the aggregate voting power
of
our voting stock are changed into or exchanged for cash, securities or property,
unless pursuant to the transaction such securities are changed into securities
of the surviving person that represent, immediately after such transaction,
at
least a majority of the aggregate voting power of the voting stock of the
surviving person.
Notwithstanding
the foregoing, holders of shares of Series B preferred stock will not have
the
right to require us to repurchase their shares if either:
| |
·
|
the
last reported sale price of shares of our common stock for any five
trading days within the 10 consecutive trading days ending immediately
before the later of the fundamental change or its announcement equaled
or
exceeded 105% of the conversion price of the shares of Series B preferred
stock immediately before the fundamental change or
announcement;
|
| |
·
|
at
least 90% of the consideration, excluding cash payments for fractional
shares and in respect of dissenters' appraisal rights, in the transaction
constituting the fundamental change consists of shares of capital
stock
traded on a U.S. national securities exchange or which will be so
traded
or quoted when issued or exchanged in connection with a fundamental
change
and as a result of the transaction, shares of Series B preferred
stock
become convertible into such publicly traded securities;
or
|
| |
·
|
in
the case of number 4 above of a fundamental change event, the transaction
is effected solely to change our jurisdiction of
incorporation.
|
Voting
Holders
of shares of our Series B preferred stock have no voting rights unless (1)
dividends on any shares of our Series B preferred stock or any other class
or
series of stock ranking on a parity with the shares of our Series B preferred
stock with respect to the payment of dividends shall be in arrears for dividend
periods, whether or not consecutive, containing in the aggregate a number of
days equivalent to six calendar quarters or (2) we fail to pay the repurchase
price, plus accrued and unpaid dividends, if any, on the fundamental change
repurchase date for shares of our Series B preferred stock following a
fundamental change (as described in the certificate of designation for the
Series B preferred stock). In each such case, the holders of shares of our
Series B preferred stock (voting separately as a class with all other series
of
other preferred stock on parity with our Series B preferred stock upon which
like voting rights have been conferred and are exercisable, if any) will be
entitled to vote for the election of two directors in addition to those
directors on the board of directors at such time at the next annual meeting
of
shareholders and each subsequent meeting until the repurchase price or all
dividends accumulated on the shares of our Series B preferred stock have been
fully paid or set aside for payment. The term of office of all directors elected
by the holders of shares of our Series B preferred stock will terminate
immediately upon the termination of the right of holders of shares of our Series
B preferred stock to vote for directors.
So
long
as any shares of our Series B preferred stock remain outstanding, we will not,
without the consent of the holders of at least two-thirds of the shares of
our
Series B preferred stock outstanding at the time (voting separately as a class
with all other series of preferred stock, if any, on parity with our Series
B
preferred stock upon which like voting rights have been conferred and are
exercisable) issue or increase the authorized amount of any class or series
of
shares ranking senior to the outstanding shares of our Series B preferred stock
as to dividends or upon liquidation. In addition, we will not, subject to
certain conditions, amend, alter or repeal provisions of our certificate of
incorporation, including the certificate of designation relating to our Series
B
preferred stock, whether by merger, consolidation or otherwise, so as to
adversely amend, alter or affect any power, preference or special right of
the
outstanding shares of our Series B preferred stock or the holders thereof
without the affirmative vote of not less than two-thirds of the issued and
outstanding shares of our Series B preferred stock.
Anti-Takeover
Provisions
Provisions
of our Certificate of Incorporation and By-Laws
A
number
of provisions of our certificate of incorporation and by-laws concern matters
of
corporate governance and the rights of shareholders. Some of these provisions,
including, but not limited to, the inability of shareholders to take action
by
unanimous written consent, supermajority voting provisions with respect to
any
amendment of voting rights provisions, the filling of vacancies on the board
of
directors by the affirmative vote of a majority of the remaining directors,
and
the ability of the board of directors to issue shares of preferred stock and
to
set the voting rights, preferences and other terms thereof, without further
shareholder action, may be deemed to have anti-takeover effect and may
discourage takeover attempts not first approved by the board of directors,
including takeovers which shareholders may deem to be in their best interests.
If takeover attempts are discouraged, temporary fluctuations in the market
price
of shares of our common stock, which may result from actual or rumored takeover
attempts, may be inhibited. These provisions, together with the ability of
the
board of directors to issue preferred stock without further shareholder action,
could also delay or frustrate the removal of incumbent directors or the
assumption of control by shareholders, even if the removal or assumption would
be beneficial to our shareholders. These provisions could also discourage or
inhibit a merger, tender offer or proxy contest, even if favorable to the
interests of shareholders, and could depress the market price of our common
stock. The board of directors believes these provisions are appropriate to
protect our interests and the interests of our shareholders. The board of
directors has no present plans to adopt any further measures or devices which
may be deemed to have an “anti-takeover effect.”
Delaware
Anti-Takeover Provisions
We
are
subject to Section 203 of the Delaware General Corporation Law, which prohibits
a publicly-held Delaware corporation from engaging in a “business combination,”
except under certain circumstances, with an “interested shareholder” for a
period of three years following the date such person became an “interested
shareholder” unless:
• before
such person became an interested shareholder, the board of directors of the
corporation approved either the business combination or the transaction that
resulted in the interested shareholder becoming an interested
shareholder;
• upon
the
consummation of the transaction that resulted in the interested shareholder
becoming an interested shareholder, the interested shareholder owned at least
85
percent of the voting stock of the corporation outstanding at the time the
transaction commenced, excluding shares held by directors who are also officers
of the corporation and shares held by employee stock plans in which employee
participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange offer;
or
• at
or
following the time such person became an interested shareholder, the business
combination is approved by the board of directors of the corporation and
authorized at an annual or special meeting of shareholders (and not by written
consent) by the affirmative vote of the holders of at least 66 2/3 percent
of
the outstanding voting stock of the corporation which is not owned by the
interested shareholder.
The
term
“interested shareholder” generally is defined as a person who, together with
affiliates and associates, owns, or, within the three years prior to the
determination of interested shareholder status, owned, 15 percent or more of
a
corporation’s outstanding voting stock. The term “business combination” includes
mergers, asset or stock sales and other similar transactions resulting in a
financial benefit to an interested shareholder. Section 203 makes it more
difficult for an “interested shareholder” to effect various business
combinations with a corporation for a three-year period. The existence of this
provision would be expected to have an anti-takeover effect with respect to
transactions not approved in advance by the board of directors, including
discouraging attempts that might result in a premium over the market price
for
the shares of our common stock held by shareholders. A Delaware corporation
may
“opt out” of Section 203 with an express provision in its original certificate
of incorporation or any amendment thereto. Our certificate of incorporation
does
not contain any such exclusion.
Listing
on the Nasdaq Global Market
Our
common stock is listed on the Nasdaq Global Market under the symbol “FCEL”.
Transfer
Agent and Registrar
The
transfer agent and registrar for our common stock and preferred stock is
Continental Stock Transfer & Trust Company, New York, New York.
LIMITATION
ON LIABILITY AND INDEMNIFICATION MATTERS
Our
certificate of incorporation contains provisions that limit the liability of
our
directors for monetary damages to the fullest extent permitted by Delaware
law.
Consequently, our directors will not be personally liable to us or our
shareholders for monetary damages for any breach of fiduciary duties as
directors, except liability for the following:
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|
· |
Any
breach of their duty of loyalty to us or our
shareholders;
|
|
|
· |
Acts
or omissions not in good faith or which involve intentional misconduct
or
a knowing violation of law;
|
|
|
· |
Unlawful
payments of dividends or unlawful stock repurchases or redemptions
as
provided in Section 174 of the Delaware General Corporation Law;
or
|
|
|
· |
Any
transaction from which the director derived an improper personal
benefit.
|
Our
bylaws provide for the indemnification of our directors and officers to the
fullest extent permitted by Delaware law. We believe that these bylaw provisions
are necessary to attract and retain qualified persons as directors and officers.
We also maintain directors’ and officers’ liability insurance.
The
limitation of liability and indemnification provisions in our certificate of
incorporation and bylaws may discourage shareholders from bringing a lawsuit
against our directors for breach of their fiduciary duty. They may also reduce
the likelihood of derivative litigation against our directors and officers,
even
though an action, if successful, might benefit us and other shareholders.
Furthermore, a shareholder’s investment may be adversely affected to the extent
that we pay the costs of settlement and damage awards against directors and
officers as required by these indemnification provisions. At present, there
is
no pending litigation or proceeding involving any of our directors and officers
regarding which indemnification is sought, and we are not aware of any
threatened litigation that may result in claims for indemnification.
Insofar
as the provisions of our certificate of incorporation or bylaws provide for
indemnification of directors or officers for liabilities arising under the
Securities Act of 1933, as amended, we have been informed that in the opinion
of
the Securities and Exchange Commission this indemnification is against public
policy as expressed in the Securities Act of 1933, as amended, and is therefore
unenforceable.
FOR
SECURITIES ACT LIABILITIES
Our
certificate of incorporation provides that none of our directors will be
personally liable to us or our shareholders for monetary damages for breach
of
fiduciary duty as a director, except to the extent such exemption from liability
or limitation thereof is not permitted under the Delaware General Corporation
Law. Our by-laws provide for indemnification of our officers and directors
to
the fullest extent permitted by applicable law. Insofar as indemnification
for
liabilities under the Securities Act of 1933 may be permitted to directors,
officers or controlling persons of FuelCell pursuant to the Certificate of
Incorporation, Bylaws or applicable law, or otherwise, we have been advised
that
in the opinion of the Securities and Exchange Commission such indemnification
is
against public policy as expressed in the Securities Act of 1933 and is
therefore unenforceable.
LEGAL
MATTERS
The
validity of the Shares offered hereby has been passed upon for us by Robinson
& Cole LLP, Stamford, Connecticut.
EXPERTS
Our
consolidated financial statements as of October 31, 2006 and 2005, and for
each
of the three years in the period ended October 31, 2006, incorporated by
reference in this prospectus and in the registration statement of which this
prospectus is a part, from our Annual Report on Form 10-K for the year ended
October 31, 2006, have been audited by KPMG LLP, independent registered public
accounting firm, as stated in their report, and have been so incorporated in
reliance upon the report given on their authority as experts in accounting
and
auditing. The audit report covering the October 31, 2006 consolidated financial
statements refers to a change in the method of accounting for share-based
payments.
WHERE
YOU CAN FIND MORE INFORMATION
We
have
filed with the Securities and Exchange Commission (SEC) a registration statement
on Form S-1 under the Securities Act with respect to the Shares offered hereby.
This prospectus, which constitutes a part of the registration statement, does
not contain all of the information set forth in the registration statement
or
the exhibits and schedules filed therewith. We have omitted certain parts of
the
registration statement as permitted by the rules and regulations of the SEC.
For
further information about us and the Shares offered hereby, reference is made
to
the registration statement and the exhibits and schedules filed therewith.
Statements contained in this prospectus regarding the contents of any contract
or any other document that is filed as an exhibit to the registration statement
are not necessarily complete, and each such statement is qualified in all
respects by reference to the full text of such contract or other document filed
as an exhibit to the registration statement. A copy of the registration
statement and the exhibits and schedules filed therewith may be inspected
without charge at the public reference room maintained by the SEC, located
at
100 F Street, N.E., Washington, D.C. 20549, and copies of all or any part of
the
registration statement may be obtained from such offices upon the payment of
the
fees prescribed by the SEC. Please call the SEC at 1-800-SEC-0330 for further
information about the public reference room. The SEC also maintains an Internet
web site that contains reports, proxy and information statements and other
information regarding registrants that file electronically with the SEC. The
address of the site is http://www.sec.gov.
We
are
subject to the informational requirements of the Securities Exchange Act of
1934
and, therefore, we file annual, quarterly and current reports, proxy statements
and other information with the SEC. Such periodic reports, proxy
statements and other information are available for inspection and copying at
the
public reference room and web site of the SEC referred to above. Our common
stock is quoted on the Nasdaq Global Market, and you may also inspect and copy
our SEC filings at the offices of the National Association of Securities
Dealers, Inc. located at 1735 K Street, N.W., Washington, D.C. 20006.
You
should rely only on the information provided in this prospectus and the
registration statement. We have not authorized anyone else to provide you with
different information. The Shares are not being offered in any state where
the offer is not permitted. You should assume that the information in this
prospectus is accurate only as of the dates of those documents. Our
business, financial condition, results of operations and prospects may have
changed since those dates.
The
Securities
and Exchange Commission
(SEC)
allows us to “incorporate by reference” information that we file with it, which
means that we can disclose important information to you by referring you to
those documents. The information incorporated by reference is an important
part
of this prospectus. Information in this prospectus supersedes information
incorporated by reference that we filed with the SEC prior to the date of this
prospectus, while information that we file later with the SEC will automatically
update and supersede this information. We incorporate by reference into this
registration statement and prospectus the documents listed below, and any future
filings we will make with the SEC under Sections 13(a), 13(c), 14 or 15(d)
of the Securities
Exchange Act of 1934:
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1.
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended July 31,
2007.
|
| |
|
|
2.
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended April
30,
2007.
|
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|
|
3
|
Our
Quarterly Report on Form 10-Q for the fiscal quarter ended January
31,
2007.
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4.
|
Our
Annual Report on Form 10-K for the fiscal year ended October 31,
2006;
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|
5.
|
Our
Proxy for our shareholders’ meeting on March 27, 2007, filed on February
23, 2007;
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|
|
6.
|
Our
Current Reports on Form 8-K filed August 30, June 6, April 23, April
10,
April 3, March 30, March 9, February 23 and January 16, 2007 and
December
19, 2006;
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7.
|
Our
registration statement on Form S-3 filed September 18, 2007;
and
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8.
|
The
description of our common stock set forth in our registration statement
on
Form 8-A, filed with the SEC on June 6, 2000, including any amendments
or
reports filed for the purposes of updating this
description.
|
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We
will
furnish without charge to you, on written or oral request, a copy of any or
all
of the documents incorporated by reference, including exhibits to these
documents. You should direct any requests for documents to FuelCell Energy,
Inc., Attention: Corporate Secretary, 3 Great Pasture Road, Danbury, Connecticut
06813, telephone: (203) 825-6000.
[LOGO]
500,000
Shares of Common Stock
PROSPECTUS
[___________],
2007
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
13. Other Expenses of Issuance and Distribution.
The
following table sets forth all expenses payable by us in connection with the
offering of the securities being registered. All such expenses are being borne
by us.
|
SEC
Registration Fee
|
|
$
|
144
|
|
|
Accounting
Fees and Expenses*
|
|
$
|
5,000
|
|
|
Legal
Fees and Expenses*
|
|
$
|
5,000
|
|
|
Miscellaneous
Expenses*
|
|
$
|
2,856
|
|
|
|
|
|
|
|
|
Total*
|
|
$
|
13,000
|
|
*
Estimated.
Item
14. Indemnification of Directors and Officers
Section
145 of the Delaware General Corporation Law provides that a corporation may
indemnify any person, including an officer and director, who was or is, or
is
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of
the
fact that such person is or was a director, officer, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise. The indemnity may include expenses
(including attorneys’ fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, provided such person acted in good faith and in a manner
such person reasonably believed to be in or not opposed to the best interests
of
such corporation, and, with respect to any criminal actions and proceedings,
had
no reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify any person, including an officer or director, who
was
or is, or is threatened to be made, a party to any threatened, pending or
contemplated action or suit by or in the right of such corporation, under the
same conditions, except that no indemnification is permitted without judicial
approval if such person is adjudged to be liable to such corporation.
Where an officer or director of a corporation is successful, on the merits
or otherwise, in the defense of any action, suit or proceeding referred to
above, or any claim, issue or matter herein, the corporation must indemnify
such
person against the expenses (including attorneys’ fees) which such officer or
director actually and reasonably incurred in connection therewith.
Our
certificate of incorporation provides that none of our directors will be
personally liable to us or our shareholders for monetary damages for breach
of
fiduciary duty as a director, except to the extent such exemption from liability
or limitation thereof is not permitted under the Delaware General Corporation
Law.
Our
by-laws provide for indemnification of our officers and directors to the fullest
extent permitted by applicable law. We also maintain directors’ and officers’
liability insurance policies.
Item
15. Recent Sales of Unregistered Securities
The
following sets forth information regarding all unregistered securities issued
and sold during the last three years:
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1.
|
On
November 11, 2004, we entered into a purchase agreement with Citigroup
Global Markets Inc., RBC Capital Markets Corporation, Adams Harkness,
Inc., and Lazard Freres & Co., LLC (the “Initial Purchasers”) for the
private placement under Rule 144A of up to 135,000 shares of our
5% Series
B Cumulative Convertible Perpetual Preferred Stock (Liquidation Preference
$1,000). On November 17, 2004 and January 25, 2005, we closed on
the sale
of 100,000 shares and 5,875 shares, respectively, of Series B preferred
stock to the Initial Purchasers. Net proceeds to us were approximately
$99.0 million. During fiscal 2006, we converted 41,755 shares of
Series B
preferred stock into 3,553,615 shares of our common stock. As of
September
30, 2007, 64,120 Series B preferred shares were issued and outstanding.
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2.
|
On
February 7, 2007, we sold 3,822,630 shares of our common stock to
POSCO
Power for $29.0 million. These securities were exempt from registration
pursuant to section 4(2) of the Securities Act of 1933. We filed
a
registration statement on Form S-3 with the SEC on September 18,
2007 to
register these shares for resale by POSCO Power.
|
| |
3.
|
On
July 7, 2005, we issued warrants to purchase up to an aggregate of
1,000,000 shares of our common stock to Enbridge, Inc. in conjunction
with
an amended distribution agreement. These warrants were exempt from
registration pursuant to section 4(2) of the Securities Act of 1933.
The
warrants vest on a graduated scale based on the total number of megawatts
contained in product orders and the timing of when such orders are
generated by Enbridge, Inc. The exercise prices of the warrants range
from
$9.89 to $11.87 per share and the expiration dates range from June
30,
2007 to June 30, 2010. As of September 30, 2007, 37,500 warrants
were
vested with an exercise price of $9.89 and the remaining 867,500
warrants
were unvested. As of September 30, 2007, Enbridge Inc. had not exercised
any of these warrants.
|
Item
16. Exhibits and Financial Statement Schedules
(a) EXHIBITS
|
Exhibit
No.
|
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Description
|
|
|
|
|
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3.1
|
|
Certificate
of Incorporation of the Registrant, as amended, July 12, 1999
(incorporated by reference to exhibit of the same number contained
in the
Company’s Form 8-K dated September 21, 1999)
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3.1.1
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Certificate
of Amendment of the Certificate of Incorporation of the Registrant,
dated
October 31, 2003 (incorporated by reference to exhibit of the same
number
contained in the Company’s Form 8-K dated November 4, 2003)
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3.2
|
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Restated
By-Laws of the Registrant, dated July 13,1999 (incorporated by
reference
to exhibit of the same number contained in the Company’s Form 8-K dated
September 21, 1999)
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4
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Specimen
of Common Share Certificate (incorporated by reference to exhibit
of the
same number contained in the Company’s Annual Report on Form 10K/A for
fiscal year ended October 31, 1999)
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5.1
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Consent
of Robinson & Cole LLP
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10.6
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**License
Agreement, dated February 11, 1988, between Electric Power Research
Institute and the Company (confidential treatment requested) (incorporated
by reference to exhibit of the same number contained in the Company’s
Registration Statement on Form S-1 (File No. 33-47233) dated April
14,
1992)
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10.21
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*FuelCell
Energy, Inc. 1988 Stock Option Plan (incorporated by reference
to exhibit
of the same number contained in the Company’s Amendment No. 1 to its
Registration Statement on Form S-1 (File No. 33-47233) dated June
1,
1992)
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10.26
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Addendum
to License Agreement, dated as of September 29, 1989, between
Messerschmitt-Bölkow-Blohm and the Company (incorporated by reference to
exhibit of the same number contained in the Company’s Amendment No. 3 to
its Registration Statement on Form S-1 (File No. 33-47233) dated
June 24,
1992)
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10.27
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Cross-Licensing
and Cross-Selling Agreement, as amended December 15, 1999, between
the
Company and MTU CFC Motoren-Und Turbinen-Union Friedrichshafen
GmbH (“MTU
CFC”) (incorporated by reference to exhibit of the same number contained
in the Company’s 10-Q for the period ended January 31,
2000)
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10.31
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License
Agreement for The Santa Clara Demonstration Project between the
Company
and the Participants in the Santa Clara Demonstration Project,
dated
September 16, 1993 (incorporated by reference to exhibit of the
same
number contained in the Company’s 10-KSB for fiscal year ended October 31,
1993, dated January 18, 1994)
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10.32
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Security
Agreement for the Santa Clara Demonstration Project, dated September
16,
1993 (incorporated by reference to exhibit of the same number contained
in
the Company’s 10-KSB for fiscal year ended October 31, 1993, dated January
18, 1994)
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10.33
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Guaranty
By FuelCell Energy, Inc., dated September 16, 1993, for the Santa
Clara
Demonstration Project (incorporated by reference to exhibit of
the same
number contained in the Company’s 10-KSB for fiscal year ended October 31,
1993, dated January 18, 1994)
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10.36
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*The
FuelCell Energy, Inc. Section 423 Stock Purchase Plan (incorporated
by
reference to exhibit of the same number contained in the Company’s 10-KSB
for fiscal year ended October 31, 1994 dated January 18,
1995)
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10.39
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**Cooperative
Agreement, dated December 20, 1994, between the Company and the
United
States Department of Energy, Cooperative Agreement #DE-FC21-95MC31184
(confidential treatment requested) (incorporated by reference to
exhibit
of the same number contained in the Company’s 10-KSB for fiscal year ended
October 31, 1994 dated January 18, 1995)
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10.40
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Loan
and Security Agreement between the Company and MetLife Capital
Corporation
(incorporated by reference to exhibit of the same number contained
in the
Company’s 10-KSB for fiscal year ended October 31, 1995 dated January 17,
1996)
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10.41
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*Amendment
No. 2 to the FuelCell Energy, Inc. Section 423 Stock Purchase Plan
(incorporated by reference to exhibit of the same number contained
in the
Company’s 10-Q for the period ended April 30, 1996 dated June 13,
1996)
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10.42
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*Amendments
to the FuelCell Energy, Inc. 1988 Stock Option Plan (incorporated
by
reference to exhibit of the same number contained in the Company’s 10-Q
for the period ended April 30, 1996 dated June 13,
1996)
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10.47
|
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Amendment
of Cooperative Agreement dated September 5, 1996 between the Company
and
the United States Department of Energy, Cooperative Agreement
#DE-FC21-95MC31184 (incorporated by reference to exhibit of the
same
number contained in the Company’s 10-K for the fiscal year ended October
31, 1998)
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10.48
|
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*Employment
Agreement between FuelCell Energy, Inc. and the Chief Financial
Officer,
Treasurer and Secretary, dated October 5, 1998 (incorporated by
reference
to exhibit of the same number contained in the Company’s 10-K for the
fiscal year ended October 31, 1998)
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10.49
|
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*Employment
Agreement between FuelCell Energy, Inc. and the President and Chief
Executive Officer, dated August 1, 1997 (incorporated by reference
to
exhibit of the same number contained in the Company’s 10-K for the fiscal
year ended October 31, 1997)
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10.50
|
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**Technology
Transfer and License Agreement between the Company and the Joint
Venture
owned jointly by the Xiamen Daily-Used Chemicals Co., Ltd. Of China
and
Nan Ya Plastics Corporation of Taiwan, dated February 21, 1998
(incorporated by reference to exhibit of the same number contained
in the
Company’s 10-Q for the period ended April 30, 1998)
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10.54
|
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*The
FuelCell Energy, Inc. 1998 Equity Incentive Plan (incorporated
by
reference to exhibit of the same number contained in the Company’s 10-Q
for the period ended July 31, 1998)
|
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10.55
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Lease
agreement, dated March 8, 2000, between the Company and Technology
Park
Associates, L.L.C. (incorporated by reference to exhibit of the
same
number contained in the Company’s 10-Q for the period ended April 30,
2000)
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10.56
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Security
agreement, dated June 30, 2000, between the Company and the Connecticut
Development Authority (incorporated by reference to exhibit of
the same
number contained in the Company’s 10-Q for the period ended July 31,
2000)
|
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10.57
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Loan
agreement, dated June 30, 2000, between the Company and the Connecticut
Development Authority (incorporated by reference to exhibit of
the same
number contained in the Company’s 10-Q for the period ended July 31,
2000)
|
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10.58
|
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*Modification,
dated June 20, 2002, to the Employment Agreement between FuelCell
Energy,
Inc. and the President and Chief Executive Officer (incorporated
by
reference to exhibit of the same number contained in the Company’s 10-Q
for the period ended July 31, 2002)
|
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10.59
|
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*Modification,
dated January 12, 2006, to the Employment Agreement between FuelCell
Energy, Inc. and the Jerry D. Leitman (incorporated by reference
to
exhibit of the same number contained in the Company’s 8-K dated January
17, 2006).
|
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10.60
|
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*
Employment Agreement, dated January 12, 2006, between R. Daniel
Brdar
(incorporated by reference to exhibit of the same number contained
in the
Company’s 8-K dated January 17, 2006).
|
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14
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Code
of Ethics applicable to the Company’s principal executive officer,
principal financial officer and principal accounting officer.
(incorporated by reference to exhibit of the same number contained
in the
Company’s 10-K for the year ended October 31, 2004)
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21
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Subsidiaries
of the Registrant (incorporated by reference to exhibit of the
same number
contained in the Company’s 10-K for the year ended October 31,
2006)
|
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|
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23.1
|
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Consent
of Independent Registered Public Accounting Firm
|
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|
|
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23.2
|
|
Consent
of Robinson & Cole LLP (included in Exhibit 5)
|
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|
24
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Power
of attorney (incorporated by reference to exhibit of the same number
contained in the Company’s Registration Statement on Form S-1, filed with
the SEC on January 21, 2005)
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|
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*
Management Contract or Compensatory Plan or Arrangement
**
Confidential Treatment has been granted for portions of this
document
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(b) FINANCIAL
STATEMENT SCHEDULES
Supplemental
schedules are not provided because of the absence of conditions under which
they
are required or because the required information is given in the financial
statements or notes thereto.
Item
17. Undertakings
The
undersigned Registrant hereby undertakes:
1. To
file,
during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act
of 1933, as amended (the “Securities Act”);
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Securities and Exchange Commission (the “Commission”) pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
provided,
however,
that
paragraphs (1)(i), (1)(ii) and (1)(iii) above do not apply if the registration
statement is on Form
S-3
and the
information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 (“Exchange Act”) that are incorporated by reference in the
registration statement, or is contained in a form of prospectus filed pursuant
to
Rule
424(b)
that is
part of the registration statement.
2.
That,
for
the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona
fide
offering
thereof.
3.
To
remove
from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
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each
prospectus filed by the registrant pursuant to
Rule 424(b)(3)shall
be deemed to be part of the registration statement as of the date
the
filed prospectus was deemed part of and included in the registration
statement; and
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(b)
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each
prospectus required to be filed pursuant to Rule
424(b)(2),
(b)(5),
or (b)(7)
as
part of a registration statement in reliance on Rule 430B relating
to an
offering made pursuant to Rule
415(a)(1)(i),
(vii),
or (x)
for the purpose of providing the information required by section
10(a) of
the Securities Act shall be deemed to be part of and included in
the
registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the
issuer
and any person that is at that date an underwriter, such date shall
be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed
to be the initial bona fide offering thereof; provided,
however,
that no statement made in a registration statement or prospectus
that is
part of the registration statement or made in a document incorporated
or
deemed incorporated by reference into the registration statement
or
prospectus that is part of the registration statement will, as to
a
purchaser with a time of contract of sale prior to such effective
date,
supersede or modify any statement that was made in the registration
statement or prospectus that was part of the registration statement
or
made in any such document immediately prior to such effective date;
or
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5. That,
for
the purpose of determining liability of the registrant under the Securities
Act
to any purchaser in the initial distribution of the securities, the undersigned
registrant undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless
of
the underwriting method used to sell the securities to the purchaser, if the
securities are offered or sold to such purchaser by means of any of the
following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such
purchaser: (i) Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant to
Rule 424; (ii) any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned registrant or used or referred
to by
the undersigned registrant; (iii) the portion of any other free writing
prospectus relating to the offering containing material information about the
undersigned registrant or its securities provided by or on behalf of the
undersigned registrant; and (iv) any other communication that is an offer
in the offering made by the undersigned registrant to the
purchaser.
6. The
undersigned registrant hereby undertakes that: (i) for purposes of
determining any liability under the Securities Act, the information omitted
from
the form of prospectus filed as part of the registration statement in reliance
upon Rule 430A and contained in the form of prospectus filed by the
registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under
the Securities Act shall be deemed to be part of the registration statement
as
of the time it was declared effective; and (ii) for the purpose of
determining any liability under the Securities Act, each post-effective
amendment that contains a form of prospectus shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona
fide
offering
thereof.
7. The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to section 13(a) or section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Exchange Act) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
8.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred
or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
Signatures
Pursuant
to the requirements of the Securities Act of 1933, the registrant 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 October 25, 2007.
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By:
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/s/ R. Daniel Brdar
|
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R.
Daniel Brdar
|
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President
and
|
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Chief
Executive Officer
|
Each
such
person whose signature appears below hereby appoints R. Daniel Brdar and Joseph
G. Mahler, and each of them, each of whom may act without joinder of the other,
as his or her true and lawful attorney-in-fact and agent, with full power and
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to execute in the name and on behalf
of
such person any amendment or any post-effective amendment to this Registration
Statement, and any registration statement relating to any offering made in
connection with the offering covered by this Registration Statement that is
to
be effective on filing pursuant to Rule 462(b) under the Securities Act of
1933,
as amended, and to file the same, with exhibits thereto, and other documents
in
connection therewith, with the Securities and Exchange Commission, granting
unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing appropriate or necessary to be done, as full and
for all intents and purposes and he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or their
substitute or 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 and on the dates
indicated.
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SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
|
|
/s/
R. Daniel Brdar
|
|
President,
Chief Executive Officer
|
|
October
25, 2007
|
|
R.
Daniel Brdar
|
|
(Principal
Executive Officer) and Chairman of the Board
|
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/s/
Joseph G. Mahler
|
|
Senior
Vice President, Chief Financial Officer,
|
|
October
25, 2007
|
|
Joseph
G. Mahler
|
|
Corporate
Secretary and Treasurer (Principal Accounting and Financial
Officer)
|
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|
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/s/
Michael Bode
|
|
Director
|
|
October
18, 2007
|
|
Michael
Bode
|
|
|
|
|
| |
|
|
|
|
|
/s/
Richard A. Bromley
|
|
Director
|
|
October
17, 2007
|
|
Richard
A. Bromley
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Glenn H. Epstein
|
|
Director
|
|
October
21, 2007
|
|
Glenn
H. Epstein
|
|
|
|
|
|
/s/
James D. Gerson
|
|
Director
|
|
October
18, 2007
|
|
James
D. Gerson
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Thomas L. Kempner
|
|
Director
|
|
October
16, 2007
|
|
Thomas
L. Kempner
|
|
|
|
|
|
|
|
|
|
|
|
/s/
William A. Lawson
|
|
Director
|
|
October
17, 2007
|
|
William
A. Lawson
|
|
|
|
|
|
|
|
|
|
|
|
/s/
George K. Petty
|
|
Director
|
|
October
16, 2007
|
|
George
K. Petty
|
|
|
|
|
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|
|
|
|
|
/s/
John A. Rolls
|
|
Director
|
|
October
16, 2007
|
|
John
A. Rolls
|
|
|
|
|
INDEX
OF
EXHIBITS
|
Exhibit
No.
|
|
Description
|
| |
|
|
|
5
|
|
Opinion
of Robinson & Cole LLP
|
| |
|
|
|
23.1
|
|
Consent
of Independent Registered Public Accounting Firm
|
| |
|
|
|
23.2
|
|
Consent
of Robinson & Cole LLP (included in Exhibit
5)
|