Fuelcell Energy Inc S-3, filed Apr 29, 2025

Fuelcell Energy Inc (FCEL)

S-3 2025-04-29

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Added on October 18, 2026

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	Large accelerated filer ☐			Accelerated filer ☒			Non-accelerated filer ☐			Smaller reporting company ☐
										Emerging growth company ☐

	ABOUT THIS PROSPECTUS					1
	FORWARD-LOOKING STATEMENTS					1
	INCORPORATION BY REFERENCE					2
	OUR COMPANY					3
	RISK FACTORS					4
	USE OF PROCEEDS					5
	THE SECURITIES WE MAY OFFER					5
	DESCRIPTION OF CAPITAL STOCK					6
	CERTAIN PROVISIONS OF DELAWARE LAW, OUR CERTIFICATE OF INCORPORATION, AND BY-LAWS					11
	DESCRIPTION OF DEBT SECURITIES					13
	DESCRIPTION OF WARRANTS					21
	DESCRIPTION OF UNITS					22
	PLAN OF DISTRIBUTION					23
	LEGAL MATTERS					25
	EXPERTS					25
	WHERE YOU CAN FIND ADDITIONAL INFORMATION					25

SEC registration fee	$	30,620
FINRA filing fees	$	30,500
Nasdaq listing fees		(1)
Printing and mailing expenses		(1)
Legal fees and expenses		(1)
Accounting fees and expenses		(1)
Transfer agent fees		(1)
Miscellaneous		(1)
Total	$	(1)

	Exhibit Number			Description of Exhibit
	1.1*			Form of Underwriting Agreement.
	1.2.1			Open Market Sale AgreementSM among FuelCell Energy, Inc., Jefferies LLC, B. Riley Securities, Inc., Barclays Capital Inc., BMO Capital Markets Corp., BofA Securities, Inc., Canaccord Genuity LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Loop Capital Markets LLC, dated July 12, 2022 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 12, 2022).
	1.2.2			Amendment No. 1 to Open Market Sale AgreementSM among FuelCell Energy, Inc., Jefferies LLC, B. Riley Securities, Inc., Barclays Capital Inc., BMO Capital Markets Corp., BofA Securities, Inc., Canaccord Genuity LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Loop Capital Markets LLC, dated April 10, 2024 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 10, 2024).
	1.2.3			Amendment No. 2 to Open Market Sale AgreementSM among FuelCell Energy, Inc., Jefferies LLC, B. Riley Securities, Inc., Barclays Capital Inc., BMO Capital Markets Corp., BofA Securities, Inc., Canaccord Genuity LLC, Citigroup Global Markets Inc., J.P. Morgan Securities LLC and Loop Capital Markets LLC, dated December 27, 2024 (incorporated by reference to Exhibit 10.98 to the Company’s Annual Report on Form 10-K filed on December 27, 2024).
	4.1			Certificate of Incorporation of the Company, as amended, July 12, 1999 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated September 21, 1999).
	4.2			Certificate of Amendment of the Certificate of Incorporation of the Company, dated November 21, 2000 (incorporated by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
	4.3			Certificate of Amendment of the Certificate of Incorporation of the Company, dated October 31, 2003 (incorporated by reference to Exhibit 3.1.1 to the Company’s Current Report on Form 8-K dated November 3, 2003).
	4.4			Certificate of Designation for the Company’s 5% Series B Cumulative Convertible Perpetual Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated November 22, 2004).
	4.5			Amended Certificate of Designation of 5% Series B Cumulative Convertible Perpetual Preferred Stock, dated March 14, 2005 (incorporated by reference to Exhibit 3.4 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
	4.6			Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 8, 2011 (incorporated by reference to Exhibit 3.5 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
	4.7			Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 5, 2012 (incorporated by reference to Exhibit 3.6 to the Company’s Annual Report on Form 10-K dated January 12, 2017).
	4.8			Certificate of Amendment of the Certificate of Incorporation of the Company, dated December 3, 2015 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated December 3, 2015).
	4.9			Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 18, 2016 (incorporated by reference to Exhibit 3.9 to the Company’s Quarterly Report on Form 10-Q for the period ended April 30, 2016).
	4.10			Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 7, 2017 (incorporated by reference to Exhibit 3.10 to the Company’s Quarterly Report on Form 10-Q for the period ended April 30, 2017).
	4.11			Certificate of Designations for the Company’s Series C Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated September 5, 2017).

	Exhibit Number			Description of Exhibit
	4.12			Certificate of Amendment of the Certificate of Incorporation of the Company, dated December 14, 2017 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated December 14, 2017).
	4.13			Certificate of Designations, Preferences and Rights for the Company’s Series D Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).
	4.14			Certificate of Amendment of the Certificate of Incorporation of FuelCell Energy, Inc., dated May 8, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 8, 2019).
	4.15			Certificate of Amendment of the Certificate of Incorporation of FuelCell Energy, Inc., dated May 11, 2020 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 12, 2020).
	4.16			Certificate of Amendment of the Certificate of Incorporation of FuelCell Energy, Inc., dated April 8, 2021 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K/A filed on April 14, 2021).
	4.17			Certificate of Amendment of the Certificate of Incorporation of FuelCell Energy, Inc., dated October 11, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on October 11, 2023).
	4.18			Certificate of Amendment of the Certificate of Incorporation of FuelCell Energy, Inc., effective November 8, 2024 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on November 7, 2024).
	4.19			Third Amended and Restated By-Laws of the Company, effective as of September 3, 3024 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on September 4, 2024).
	4.20*			Form of Warrant Agreement and Warrant Certificate.
	4.21*			Form of Unit Agreement and Unit Certificate.
	4.22*			Form of Debt Securities.
	4.23**			Indenture, dated April 29, 2025, between the Company and Wilmington Trust, National Association.
	5.1**			Opinion of Foley & Lardner LLP (including consent of such firm).
	23.1**			Consent of Foley & Lardner LLP (included in Exhibit 5.1).
	23.2**			Consent of KPMG LLP, independent registered public accounting firm.
	24.1**			Powers of Attorney (included on the signature page).
	25.1**			Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939.
	107**			Filing Fee Table.

Signature	Title	Date
/s/ Jason Few Jason Few	President, Chief Executive Officer and Director (Principal Executive Officer)	April 29, 2025
/s/ Michael S. Bishop Michael S. Bishop	Executive Vice President, Chief Financial Officer and Treasurer (Principal Financial Officer and Principal Accounting Officer)	April 29, 2025
/s/ James H. England James H. England	Director — Chairman of the Board	April 29, 2025
/s/ Matthew F. Hilzinger Matthew F. Hilzinger	Director	April 29, 2025
/s/ Natica von Althann Natica von Althann	Director	April 29, 2025
/s/ Cynthia Hansen Cynthia Hansen	Director	April 29, 2025

		Page

ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE		1
	Section 1.1 Definitions	1
	Section 1.2 Other Definitions	4
	Section 1.3 Incorporation by Reference of Trust Indenture Act	5
	Section 1.4 Rules of Construction	5
ARTICLE II THE SECURITIES		6
	Section 2.1 Issuable in Series	6
	Section 2.2 Establishment of Terms of Series of Securities	6
	Section 2.3 Execution and Authentication	8
	Section 2.4 Registrar and Paying Agent	9
	Section 2.5 Paying Agent to Hold Money in Trust	10
	Section 2.6 Securityholder Lists	10
	Section 2.7 Transfer and Exchange	11
	Section 2.8 Mutilated, Destroyed, Lost and Stolen Securities	11
	Section 2.9 Outstanding Securities	12
	Section 2.10 Treasury Securities	12
	Section 2.11 Temporary Securities	13
	Section 2.12 Cancellation	13
	Section 2.13 Defaulted Interest	13
	Section 2.14 Global Securities	13
	Section 2.15 CUSIP Numbers	16
ARTICLE III REDEMPTION		16
	Section 3.1 Notice to Trustee	16
	Section 3.2 Selection of Securities to be Redeemed	17
	Section 3.3 Notice of Redemption	17

	Section 3.4 Effect of Notice of Redemption	18
	Section 3.5 Deposit of Redemption Price	18
	Section 3.6 Securities Redeemed in Part	18
ARTICLE IV COVENANTS		18
	Section 4.1 Payment of Principal and Interest	18
	Section 4.2 SEC Reports	18
	Section 4.3 Compliance Certificate	19
	Section 4.4 Stay, Extension and Usury Laws	19
ARTICLE V SUCCESSORS		19
	Section 5.1 When Company May Merge, Etc	19
	Section 5.2 Successor Corporation Substituted	20
ARTICLE VI DEFAULTS AND REMEDIES		20
	Section 6.1 Events of Default	20
	Section 6.2 Acceleration of Maturity; Rescission and Annulment	22
	Section 6.3 Collection of Indebtedness and Suits for Enforcement by Trustee	22
	Section 6.4 Trustee May File Proofs of Claim	23
	Section 6.5 Trustee May Enforce Claims Without Possession of Securities	24
	Section 6.6 Application of Money Collected	24
	Section 6.7 Limitation on Suits	24
	Section 6.8 Unconditional Right of Holders to Receive Principal and Interest	25
	Section 6.9 Restoration of Rights and Remedies	25
	Section 6.10 Rights and Remedies Cumulative	25
	Section 6.11 Delay or Omission Not Waiver	25
	Section 6.12 Control by Holders	26
	Section 6.13 Waiver of Past Defaults	26
	Section 6.14 Undertaking for Costs	26

ARTICLE VII TRUSTEE		27
	Section 7.1 Duties of Trustee	27
	Section 7.2 Rights of Trustee	28
	Section 7.3 Individual Rights of Trustee	30
	Section 7.4 Trustee’s Disclaimer	30
	Section 7.5 Notice of Defaults	30
	Section 7.6 Reports by Trustee to Holders	30
	Section 7.7 Compensation and Indemnity	30
	Section 7.8 Replacement of Trustee	31
	Section 7.9 Successor Trustee by Merger, Etc	32
	Section 7.10 Eligibility; Disqualification	32
	Section 7.11 Preferential Collection of Claims Against Company	33
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE		33
	Section 8.1 Satisfaction and Discharge of Indenture	33
	Section 8.2 Application of Trust Funds; Indemnification	34
	Section 8.3 Legal Defeasance of Securities of any Series	35
	Section 8.4 Covenant Defeasance	36
	Section 8.5 Repayment to Company	37
	Section 8.6 Reinstatement	37
ARTICLE IX AMENDMENTS AND WAIVERS		38
	Section 9.1 Without Consent of Holders	38
	Section 9.2 With Consent of Holders	39
	Section 9.3 Limitations	39
	Section 9.4 Compliance with Trust Indenture Act	40
	Section 9.5 Revocation and Effect of Consents	40
	Section 9.6 Notation on or Exchange of Securities	40
	Section 9.7 Trustee Protected	40

ARTICLE X MISCELLANEOUS		41
	Section 10.1 Trust Indenture Act Controls	41
	Section 10.2 Notices	41
	Section 10.3 Communication by Holders with Other Holders	42
	Section 10.4 Certificate and Opinion as to Conditions Precedent	42
	Section 10.5 Statements Required in Certificate or Opinion	42
	Section 10.6 Rules by Trustee and Agents	43
	Section 10.7 Legal Holidays	43
	Section 10.8 No Recourse Against Others	43
	Section 10.9 Counterparts	43
	Section 10.10 Governing Law; Waiver of Jury Trial; Consent to Jurisdiction	43
	Section 10.11 No Adverse Interpretation of Other Agreements	44
	Section 10.12 Successors	44
	Section 10.13 Severability	44
	Section 10.14 Table of Contents, Headings, Etc	44
	Section 10.15 Securities in a Foreign Currency	44
	Section 10.16 Judgment Currency	45
	Section 10.17 Force Majeure	45
ARTICLE XI SINKING FUNDS		46
	Section 11.1 Applicability of Article	46
	Section 11.2 Satisfaction of Sinking Fund Payments with Securities	46
	Section 11.3 Redemption of Securities for Sinking Fund	47


§ 310(a)(1)		7.10
(a)(2)		7.10
(a)(3)		Not Applicable
(a)(4)		Not Applicable
(a)(5)		7.10
(b)		7.10
§ 311(a)		7.11
(b)		7.11
(c)		Not Applicable
§ 312(a)		2.6
(b)		10.3
(c)		10.3
§ 313(a)		7.6
(b)(1)		7.6
(b)(2)		7.6
(c)(1)		7.6
(d)		7.6
§ 314(a)		4.2, 10.5
(b)		Not Applicable
(c)(1)		10.4
(c)(2)		10.4
(c)(3)		Not Applicable
(d)		Not Applicable
(e)		10.5
(f)		Not Applicable
§ 315(a)		7.1
(b)		7.5
(c)		7.1
(d)		7.1
(e)		6.14
§ 316(a)		2.10
(a)(1)(A)		6.12
(a)(1)(B)		6.13

TERM		DEFINED IN SECTION
“Bankruptcy Law”		6.1
“Custodian”		6.1
“Event of Default”		6.1
“Judgment Currency”		10.16
“Legal Holiday”		10.7
“mandatory sinking fund payment”		11.1
“New York Banking Day”		10.16
“Notice Agent”		2.4
“optional sinking fund payment”		11.1

“Paying Agent”		2.4
“Registrar”		2.4
“Required Currency”		10.16
“Specified Courts”		10.10
“successor person”		5.1

	FUELCELL ENERGY, INC.

	By:	/s/ Michael S. Bishop
		Name: Michael S. Bishop
		Its: Executive Vice President, Chief Financial Officer and Treasurer

	WILMINGTON TRUST, NATIONAL ASSOCIATION
	as Trustee

	By:	/s/ Latoya S. Elvin
		Name: Latoya S. Elvin
		Its: Vice President

	KPMG LLP
	Suite 4000
	1735 Market Street
	Philadelphia, PA 19103-7501

(Exact name of obligor as specified in its charter)
Delaware	06-0853042
(State or other jurisdiction of incorporation or organization)	(I.R.S. Employer Identification No.)

	(a)	Name and address of each examining or supervising authority to which it is subject.

		Comptroller of Currency, Washington, D.C.
		Federal Deposit Insurance Corporation, Washington, D.C.

	(b)	Whether it is authorized to exercise corporate trust powers.
		The trustee is authorized to exercise corporate trust powers.

	1.	A copy of the Charter for Wilmington Trust, National Association.
	2.	The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above.
	3.	The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 above.
	4.	A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4 of this Form T-1.
	5.	Not applicable.
	6.	The consent of Wilmington Trust, National Association as required by Section 321(b) of the Trust Indenture Act of 1939, attached hereto as Exhibit 6 of this Form T-1.
	7.	Current Report of the Condition of Wilmington Trust, National Association, published pursuant to law or the requirements of its supervising or examining authority, attached hereto as Exhibit 7 of this Form T-1.
	8.	Not applicable.
	9.	Not applicable.

	WILMINGTON TRUST, NATIONAL ASSOCIATION

	By:	/s/ Latoya S. Elvin
	Name:	Latoya S. Elvin
	Title:	Vice President

	1)	The name and address of each proposed nominee.
	2)	The principal occupation of each proposed nominee.
	3)	The total number of shares of capital stock of the association that will be voted for each proposed nominee.
	4)	The name and residence address of the notifying shareholder.
	5)	The number of shares of capital stock of the association owned by the notifying shareholder.

	1)	Define the duties of the officers, employees, and agents of the association.
	2)	Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association.
	3)	Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law.
	4)	Dismiss officers and employees.
	5)	Require bonds from officers and employees and to fix the penalty thereof.
	6)	Ratify written policies authorized by the association's management or committees of the board.
	7)	Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital.
	8)	Manage and administer the business and affairs of the association.
	9)	Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs of the association.
	10)	Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders.
	11)	Make contracts.
	12)	Generally perform all acts that are legal for a board of directors to perform.

	WILMINGTON TRUST, NATIONAL ASSOCIATION


Dated: April 29, 2025	By:	/s/ Latoya S. Elvin
		Name: Latoya S. Elvin
		Title: Vice President

ASSETS	Thousands of Dollars
Cash and balances due from depository institutions:		575,791
Securities:		1,088
Federal funds sold and securities purchased under agreement to resell:		0
Loans and leases held for sale:		0
Loans and leases net of unearned income, allowance:		33,276
Premises and fixed asset		32,427
Other real estate owned:		348
Investments in unconsolidated subsidiaries and associated companies:		0
Direct and indirect investments in real estate ventures:		0
Intangible assets:		0
Other assets:		68,030
Total Assets:		710,960

LIABILITIES	Thousands of Dollars
Deposits		5,760
Federal funds purchased and securities sold under agreements to repurchase		0
Other borrowed money:		0
Other Liabilities:		101,838
Total Liabilities		107,598

EQUITY CAPITAL	Thousands of Dollars
Common Stock		1,000
Surplus		352,350
Retained Earnings		250,021
Accumulated other comprehensive income		(9	)
Total Equity Capital		603,362

Total Liabilities and Equity Capital		710,960