As
Filed with the Securities and Exchange Commission on January 23,
2007.
REGISTRATION
NO. 333-______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
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FUELCELL
ENERGY, INC.
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(Exact
Name of Registrant as Specified in Its Charter)
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Delaware
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(State
or Other Jurisdiction of Incorporation or
Organization)
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06-0853042
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(I.R.S.
Employer Identification Number)
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3
Great Pasture Road
Danbury,
Connecticut 06813
(203)
825-6000
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|
(Address,
Including Zip Code, and Telephone Number, Including Area
Code,
of
Registrant’s Principal Executive Offices)
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|
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
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|
(Name,
Address, Including Zip Code, and Telephone Number, Including Area
Code, of
Agent for Service)
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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: From time to time after
the
effective date of this registration statement.
If
the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following box. o
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, other
than securities offered in connection with dividend or interest reinvestment
plans, 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 registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If
this
form is a post-effective amendment to a registration statement filed pursuant
to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. 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)
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Amount
of
Registration
Fee
|
|
|
Common
Stock
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|
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6,000,000
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$
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5.86
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|
$
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35,160,000
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|
$
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3,762.12
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|
(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 January 18, 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 CONTAINED 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 JANUARY 23, 2007
PROSPECTUS
[LOGO]
6,000,000
Shares of Common Stock
We
may
offer, from time to time in one or more transactions, up to 6,000,000 shares
of
our common stock, $.0001 par value (the “Shares”).
The
Shares may be offered to or through underwriters, through agents or dealers,
directly to one or more purchasers or through a combination of such methods.
In
certain cases, we will specify in an accompanying prospectus supplement the
offering price and terms of an offering of the Shares, including, but not
limited to, the names of any underwriters, agents or dealers. The
prospectus supplement may also add, update or change information contained
in
this prospectus. For
additional information on the method and manner of sale, refer to the section
entitled “Plan of Distribution”.
You
should read this prospectus and the prospectus supplements carefully before
you
invest in the Shares.
We
will
use the net proceeds received from the sale of the Shares for general corporate
purposes.
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
January 18, 2007 was $5.86 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 4.
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
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Page
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FORWARD-LOOKING
STATEMENTS
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ii
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ABOUT
THIS PROSPECTUS
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ii
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SUMMARY
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1
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RISK
FACTORS
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4
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USE
OF PROCEEDS
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15
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PLAN
OF DISTRIBUTION
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15
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DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT
LIABILITIES
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17
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LEGAL
MATTERS
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17
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EXPERTS
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17
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17
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INCORPORATION
BY REFERENCE
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18
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FORWARD-LOOKING STATEMENTS
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 “shelf” registration process. Under this
shelf registration process, we may sell the Shares in one or more offerings.
This prospectus provides you with a general description of the securities that
we may offer. Each time the Shares are offered, we will provide you with this
prospectus and, in certain cases, a prospectus supplement containing more
specific information about the terms of the offering. 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.”
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
150
million kilowatt hours of electricity and we have units operating at over 50
locations around the world.
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
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 technology
with our own and government research and development funds.
Our
proprietary 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 and reduce cost
and emissions.
We
believe our products offer significant advantages compared to other power
generation technologies:
| · |
Reliable
24/7 baseload power,
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| · |
Ultra-clean
(e.g. virtually zero emissions) quiet
operation,
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| · |
Lower
cost to generate electricity, and
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| · |
The
ability to site units locally and provide high temperature heat for
cogeneration applications.
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Typical
customers for our products include manufacturers, mission critical institutions
such as correction facilities and government installations, hotels and customers
who can use waste or byproducts of their operations for fuel such as breweries,
food processors and waste water treatment facilities. With increasing demand
for
renewable and ultraclean power options, and increased volatility and uncertainty
in electric markets, our customers gain control of power generation economics,
reliability and emissions. Our fuel cells offer flexible siting and easy
permitting.
Through
December 31, 2006, our cumulative fleet availability was greater than 90
percent. Our DFC®
Power
Plants are protected by 46 U.S. and 74 international patents and we also have
submitted 38 U.S. and 123 international patent applications.
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
market 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 believe we can reach gross margin
break-even. We believe 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. Our 2.4 MW product currently has a production cost at
market clearing prices in certain regions such as Connecticut. Therefore, if
product mix trends move toward MW and multi-MW orders, we believe that company
profitability can be achieved at annual volumes lower than 75 MW.
The
Offering
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Common
stock offered
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6,000,000
shares.
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Common
stock to be outstanding after this offering
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59,169,234
shares.
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Risk
factors
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Investment
in the Shares involves a high degree of risk. You should carefully
consider the risk factors described under the section entitled
“Risk
Factors”, as well as any other information in this prospectus, any
prospectus supplement and any document incorporated herein by reference,
before purchasing any of the Shares. Each of these risk factors
could
adversely affect our business, operating results and financial
condition,
as well as adversely affect the value of an investment in our
securities.
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Use
of proceeds
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Except
as may be provided in an applicable prospectus supplement, we will
use the
net proceeds from the sale of the Shares for general corporate
purposes.
See section entitled “Use of Proceeds”.
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We
may sell the Shares to or through underwriters, through agents
or dealers,
directly to one or more purchasers or through a combination of
such
methods. See section entitled “Plan of Distribution”.
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Nasdaq
Global Market symbol
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FCEL.
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(1)
The
above outstanding share information is based upon shares of our common stock
outstanding as of January 10, 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.);
·
1,200,000
shares of our common stock
issuable upon the exercise of warrants outstanding at January 10, 2007;
·
6,017,629
shares of our common stock
issuable upon the exercise of options outstanding at January 10, 2007 under
our
stock option plans;
·
2,669,689
shares of our common stock
available for future issuance under our stock option plans; and
·
332,837
shares of our common stock
available for future issuance under our employee stock purchase
plan.
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.
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)
that are currently not ascertainable. 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
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.
Our
largest two institutional shareholders each own more than 5%, but less than
10%,
of our outstanding common stock. MTU Friedrichshafen GmbH owns approximately
5%
of our outstanding common stock. James D. Gerson beneficially owns approximately
2% of our outstanding common stock. Loeb Investors Co. LXXV and Warren Bagatelle
(a managing director of an affiliate of Loeb Investors Co. LXXV) collectively
beneficially own approximately 2% 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 MTU CFC Solutions GmbH), James
D. Gerson, Warren Bagatelle and Thomas L. Kempner (Chairman and Chief Executive
Officer of an affiliate of Loeb Investors Co. LXXV). MTU CFC is also a licensee
of our technology and a purchaser of our Direct FuelCell®
products. Therefore, it may be in MTU CFC’s interest to possess substantial
influence over matters concerning our overall strategy and technological and
commercial development.
MTU
CFC may develop competing technologies.
MTU
CFC
Solutions GmbH is currently developing carbonate fuel cell technology. If this
technology does not use DFC know-how, MTU CFC must use good faith efforts to
license the technology to us. If MTU 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 MTU CFC to continue developing products with as much commonality as
possible. However, the license agreement between us and MTU 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. Department of Energy (“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.
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 MTU 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 MTU 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. 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.$1.1758 to U.S.$1.00 (exchange rate
on
January 10, 2007) at the time of the applicable dividend payment date, we are
required to pay a preferred dividend of approximately $265,776 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.$6.22 (our common stock closing
price on January 10, 2007) and the exchange rate for Canadian dollars is
Cdn.$1.1758 to U.S.$1.00 (exchange rate on January 10, 2007) at the time of
conversion, we would be required to issue approximately 3,598,260 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
Except
as
may be provided in an applicable prospectus supplement, we will use the net
proceeds from the sale of the Shares for general corporate purposes. General
corporate purposes may include acquisitions, investments, repayment of debt,
payment of dividends, capital expenditures, repurchase of our capital stock
and
any other purposes that we may specify in any prospectus supplement. We may
invest the net proceeds temporarily until we use them for their stated
purpose.
We
may
sell the Shares from time to time pursuant to underwritten public offerings,
negotiated transactions, block trades or a combination of these methods. We
may
sell the Shares (1) through underwriters or dealers, (2) through
agents and/or (3) directly to one or more purchasers. We may distribute the
Shares from time to time in one or more transactions:
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market prices prevailing at the time of sale;
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We
may
solicit directly offers to purchase the Shares being offered by this prospectus.
We may also designate agents to solicit offers to purchase the Shares from
time
to time. We will name in a prospectus supplement any agent involved in the
offer
or sale of our Shares.
If
we
utilize a dealer in the sale of the Shares being offered by this prospectus,
we
will sell the Shares to the dealer, as principal. The dealer may then resell
the
Shares to the public at varying prices to be determined by the dealer at the
time of resale.
If
underwriters are used in the sale of any Shares, the Shares will be acquired
by
the underwriters for their own account and may be resold from time to time
in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. The Shares
may be either offered to the public through underwriting syndicates represented
by managing underwriters, or directly by underwriters. Generally, the
underwriters’ obligations to purchase the Shares will be subject to certain
conditions precedent. The underwriters will be obligated to purchase all of
the
Shares if they purchase any of the Shares.
We
may
sell the Shares through agents from time to time. The applicable prospectus
supplement will name any agent involved in the offer or sale of the Shares
and
any commissions paid to them. Generally, any agent will be acting on a best
efforts basis for the period of its appointment. In addition, we may enter
into
derivative, sale or forward sale transactions with third parties, or sell
securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates,
in
connection with such transaction, the third parties may, pursuant to this
prospectus and the applicable prospectus supplement, sell Shares covered by
this
prospectus and the applicable prospectus supplement, including in short sale
transactions. If so, the third party may use securities borrowed from us or
others to settle such sales and may use securities received from us or others
to
settle those sales to close out any related short positions. The third party
in
such sale transactions will be an underwriter and will be identified in the
applicable prospectus supplement (or a post-effective amendment). We may also
loan or pledge Shares covered by this prospectus and the applicable prospectus
supplement to third parties, who may sell the loaned Shares or, in an event
of
default in the case of a pledge, sell the pledged Shares pursuant to this
prospectus and the applicable prospectus supplement.
The
Underwriters, broker-dealers and agents that participate in the distribution
of
the Shares may be deemed to be “underwriters” as defined by the Securities Act.
Any commissions paid or any discounts or concessions allowed to any such
persons, and any profits they receive on resale of the Shares, may be deemed
to
be underwriting discounts and commissions under the Securities Act.
Agents,
underwriters, and dealers may be entitled under relevant agreements with us
to
indemnification by us against certain liabilities, including liabilities under
the Securities Act, or to contribution with respect to payments which such
agents, underwriters and dealers may be required to make in respect thereof.
The
terms and conditions of any indemnification or contribution will be described
in
the applicable prospectus supplement.
Underwriters,
broker-dealers or agents may receive compensation in the form of commissions,
discounts or concessions from us. Underwriters, broker-dealers or agents may
also receive compensation from the purchasers of Shares for whom they act as
agents or to whom they sell as principals, or both. Compensation as to a
particular underwriter, broker-dealer or agent might be in excess of customary
commissions and will be in amounts to be negotiated in connection with
transactions involving the Shares. In effecting sales, broker-dealers engaged
by
us may arrange for other broker-dealers to participate in the resales. Maximum
compensation to any underwriters, dealers or agents will not exceed any
applicable NASD limitations.
Underwriters
or agents may purchase and sell the Shares in the open market. These
transactions may include over-allotments, stabilizing transactions, syndicate
covering transactions and penalty bids. Over-allotments involve sales in excess
of the offering size, which creates a short position. Stabilizing transactions
consist of bids or purchases for the purpose of preventing or retarding a
decline in the market price of the Shares and are permitted so long as the
stabilizing bids do not exceed a specified maximum. Syndicate covering
transactions involve the placing of any bid on behalf of the underwriting
syndicate or the effecting of any purchase to reduce a short position created
in
connection with an offering. The underwriters or agents also may impose a
penalty bid, which permits them to reclaim selling concessions allowed to
syndicate members or certain dealers if they repurchase the Shares in
stabilizing or covering transactions. These activities may stabilize, maintain
or otherwise affect the market price of the Shares, which may be higher than
the
price that might otherwise prevail in the open market. These activities, if
begun, may be discontinued at any time. These transactions may be effected
on
any exchange on which the Shares are traded, in the over-the-counter market
or
otherwise.
Our
common stock is quoted on the Nasdaq Global Market under the symbol
“FCEL”.
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-3 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:
|
1.
|
Our
Annual Report on Form 10-K for the fiscal year ended October 31,
2006;
|
| |
|
|
2.
|
Our
Proxy for our shareholders’ meeting on March 28, 2006, filed on February
17, 2006;
|
|
|
|
3.
|
Our
Current Reports on Form 8-K filed December 19, 2006 and January 16,
2007;
and
|
|
|
|
4.
|
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.
|
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]
6,000,000
Shares of Common Stock
PROSPECTUS
_____________,
2007
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. 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
|
|
$
|
3,762.12
|
|
|
Accounting
Fees and Expenses*
|
|
$
|
______
|
|
|
Legal
Fees and Expenses*
|
|
$
|
______
|
|
|
Miscellaneous
Expenses*
|
|
$
|
______
|
|
|
|
|
|
|
|
|
Total*
|
|
$
|
______
|
|
*
Estimated.
Item
15. 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
16. Exhibits
The
following exhibits are included or incorporated herein by
reference:
| Exhibit
No. |
|
Description |
|
4.1
|
|
Specimen
of Common Share Certificate (incorporated by reference to exhibit
of the
same number contained in the Company’s Annual Report on Form 10K for its
fiscal year ended October 31, 1999)
|
| |
|
|
|
5.1
|
|
Opinion
of Robinson & Cole LLP
|
| |
|
|
|
23.1
|
|
Consent
of Independent Registered Public Accounting Firm
|
| |
|
|
|
23.2
|
|
Consent
of Robinson & Cole LLP (included in Exhibit 5.1)
|
| |
|
|
|
24.1
|
|
Power
of Attorney (included on the signature page
hereof)
|
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.
| |
|
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
|
| |
(b)
|
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
|
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 certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-3 and has duly caused this registration statement on Form
S-3
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the
City of Danbury, State of Connecticut, on January 22, 2007.
| |
|
|
| |
FUELCELL
ENERGY, INC.
|
|
|
|
|
|
By: |
/s/ R.
Daniel
Brdar |
| |
R. Daniel Brdar
|
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.
|
SIGNATURE
|
|
TITLE
|
|
DATE
|
|
|
|
|
|
|
|
/s/
R. Daniel Brdar
|
|
President,
Chief Executive Officer, Chairman of the Board and a
Director
|
|
January
22, 2007
|
|
R.
Daniel Brdar
|
|
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Joseph G. Mahler
|
|
Senior
Vice President, Chief Financial
|
|
January
22, 2007
|
|
Joseph
G. Mahler
|
|
Officer,
Corporate Secretary and Treasurer
|
|
|
|
|
|
(Principal
Accounting and Financial Officer)
|
|
|
|
|
|
|
|
|
|
/s/
Warren D. Bagatelle
|
|
Director
|
|
January
22, 2007
|
|
Warren
D. Bagatelle
|
|
|
|
|
| |
|
|
|
|
|
/s/
Michael Bode
|
|
Director
|
|
January
22, 2007
|
|
Michael
Bode
|
|
|
|
|
|
/s/
James D. Gerson
|
|
Director
|
|
January
22, 2007
|
|
James
D. Gerson
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Thomas L. Kempner
|
|
Director
|
|
January
22, 2007
|
|
Thomas
L. Kempner
|
|
|
|
|
|
|
|
|
|
|
|
/s/
William A. Lawson
|
|
Director
|
|
January
22, 2007
|
|
William
A. Lawson
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Charles J. Murphy
|
|
Director
|
|
January
22, 2007
|
|
Charles
J. Murphy
|
|
|
|
|
|
|
|
|
|
|
|
/s/
John A. Rolls
|
|
Director
|
|
January
22, 2007
|
|
John
A. Rolls
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
_____________
|
|
George
K. Petty
|
|
|
|
|
INDEX
OF
EXHIBITS
| Exhibit
No. |
|
Description
|
| |
|
|
|
4.1
|
|
Specimen
of Common Share Certificate (incorporated by reference to exhibit
of the
same number contained in the Company’s Annual Report on Form 10K for its
fiscal year ended October 31, 1999)
|
| |
|
|
|
5.1
|
|
Opinion
of Robinson & Cole LLP
|
| |
|
|
|
23.1
|
|
Consent
of Independent Registered Public Accounting Firm
|
| |
|
|
|
23.2
|
|
Consent
of Robinson & Cole LLP (included in Exhibit 5.1)
|
| |
|
|
|
24.1
|
|
Power
of Attorney (included on the signature page
hereof)
|