FuelCell
Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
The undersigned (the “ Investor
”) hereby confirms its agreement with FuelCell Energy, Inc.,
a Delaware corporation (the “ Company ”), as
follows:
1. This Subscription Agreement, including the Terms
and Conditions for Purchase of Shares attached hereto as Annex
I (collectively, this “ Agreement ”) is made
as of the date set forth below between the Company and the
Investor.
2. The Company has authorized the sale and issuance
to certain investors of up to an aggregate of 6,737,166 shares (the
“ Shares ”) of its Common Stock, par value
$0.0001 per share (the “ Common Stock ”),
subject to adjustment by the Company’s Board of Directors or
a committee thereof, for a purchase price of $3.59 per share (the
“ Purchase Price ”).
3. The offering and sale of the Shares (the “
Offering ”) are being made pursuant to (a) an
effective Registration Statement on Form S-3 (the “
Registration Statement ”) filed by the Company with
the Securities and Exchange Commission (the “
Commission ”), including the Prospectus contained
therein (the “ Base Prospectus ”), (b) if
applicable, certain “free writing prospectuses” (as
that term is defined in Rule 405 under the Securities Act of
1933, as amended (the “ Act ”)), that have been
or will be filed with the Commission and delivered to the Investor
on or prior to the date hereof (the “ Issuer Free Writing
Prospectus ”), containing certain supplemental
information regarding the Shares, the terms of the Offering and the
Company, and (c) a Prospectus Supplement (the “
Prospectus Supplement ” and, together with the Base
Prospectus, the “ Prospectus ”) containing
certain supplemental information regarding the Shares and terms of
the Offering that has been or will be filed with the Commission and
delivered to the Investor (or made available to the Investor by the
filing by the Company of an electronic version thereof with the
Commission).
4. The Company and the Investor agree that the
Investor will purchase from the Company and the Company will issue
and sell to the Investor the Shares of Common Stock set forth below
for the aggregate purchase price set forth below. The Shares shall
be purchased pursuant to the Terms and Conditions for Purchase of
Shares attached hereto as Annex I and incorporated herein by
this reference as if fully set forth herein. The Investor
acknowledges that the Offering is not being underwritten by the
placement agents (the “ Placement Agents ”)
named in the Prospectus Supplement and that there is no minimum
offering amount.
5. The manner of settlement of the Shares purchased
by the Investor shall be determined by such Investor as follows (
check one ):
|
[
] A.
|
|
Delivery by crediting the account
of the Investor’s prime broker (as specified by such Investor
on Exhibit A annexed hereto) with the Depository Trust
Company (“ DTC ”) through its Deposit/Withdrawal
At Custodian (“ DWAC ”) system, whereby
Investor’s prime broker shall initiate a DWAC transaction on
the Closing Date using its DTC participant identification number,
and released by Continental Stock Transfer & Trust Company, the
Company’s transfer agent (the “ Transfer Agent
”), at the Company’s direction. NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE
INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
|
|
|
(I)
|
|
DIRECT THE BROKER-DEALER AT WHICH
THE ACCOUNT OR ACCOUNTS TO BE CREDITED WITH THE SHARES ARE
MAINTAINED TO SET UP A DWAC INSTRUCTING THE TRANSFER AGENT TO
CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
|
|
|
(II)
|
|
REMIT BY WIRE TRANSFER THE AMOUNT
OF FUNDS EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING
PURCHASED BY THE INVESTOR TO THE FOLLOWING ACCOUNT:
|
JPMorgan Chase
Bank, N.A.
ABA # 021000021
Account Name: FuelCell Energy, Inc.
Account Number: 806022190
Attention : Audrey Mohan
Phone: (212) 623 -5087
Facsimile: (212) 623-6168
|
[
] B.
|
|
Delivery versus payment (“
DVP ”) through DTC (i.e., on the Closing Date, the
Company shall deliver Shares registered in the Investor’s
name and address as set forth below and released by the Transfer
Agent to the Investor through DTC at the Closing directly to the
account(s) at Lazard Capital Markets LLC (“ LCM
”) or Canaccord Adams Inc. (“ Canaccord ”)
identified by the Investor; upon receipt of such Shares, LCM or
Canaccord, as the case may be, shall promptly electronically
deliver such Shares to the Investor, and simultaneously therewith
payment shall be made by LCM or Canaccord, as the case may be, by
wire transfer to the Company). NO LATER THAN ONE
(1) BUSINESS DAY AFTER THE EXECUTION OF THIS AGREEMENT BY THE
INVESTOR AND THE COMPANY, THE INVESTOR SHALL:
|
|
|
(I)
|
|
NOTIFY LCM OR CANACCORD, AS THE
CASE MAY BE, OF THE ACCOUNT OR ACCOUNTS AT LCM OR CANACCORD, AS THE
CASE MAY BE, TO BE CREDITED WITH THE SHARES BEING PURCHASED BY SUCH
INVESTOR, AND
|
|
|
(II)
|
|
CONFIRM THAT THE ACCOUNT OR
ACCOUNTS AT LCM OR CANACCORD, AS THE CASE MAY BE, TO BE CREDITED
WITH THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM
BALANCE EQUAL TO THE AGGREGATE PURCHASE PRICE FOR THE SHARES BEING
PURCHASED BY THE INVESTOR.
|
- 2 -
IT IS THE
INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE
TRANSFER OR CONFIRM THE PROPER ACCOUNT BALANCE IN A TIMELY MANNER
AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC OR DVP IN A
TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE
PURCHASE PRICE FOR THE SHARES OR DOES NOT MAKE PROPER ARRANGEMENTS
FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES MAY NOT BE DELIVERED
AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE
CLOSING ALTOGETHER .
6. The
Investor represents that, except as set forth below, (a) it
has had no position, office or other material relationship within
the past three years with the Company or persons known to it to be
affiliates of the Company, (b) it is not a FINRA member or an
Associated Person (as such term is defined under the NASD
Membership and Registration Rules Section 1011) as of the
Closing, and (c) neither the Investor nor any group of Investors
(as identified in a public filing made with the Commission) of
which the Investor is a part in connection with the Offering of the
Shares, acquired, or obtained the right to acquire, 20% or more of
the Common Stock (or securities convertible into or exercisable for
Common Stock) or the voting power of the Company on a
post-transaction basis. Exceptions:
(If no exceptions, write
“none.” If left blank, response will be deemed to be
“none.”)
7. The Investor represents that it has received (or
otherwise had made available to it by the filing by the Company of
an electronic version thereof with the Commission) the Base
Prospectus which is a part of the Company’s Registration
Statement, the documents incorporated by reference therein and any
free writing prospectus (collectively, the “ Disclosure
Package ”), prior to or in connection with the receipt of
this Agreement. The Investor acknowledges that, prior to the
delivery of this Agreement to the Company, the Investor will
receive certain additional information regarding the Offering,
including pricing information (the “ Offering
Information ”). Such information may be provided to the
Investor by any means permitted under the Act, including the
Prospectus Supplement, a free writing prospectus and oral
communications.
8. No offer by the Investor to buy Shares will be
accepted and no part of the Purchase Price will be delivered to the
Company until the Investor has received the Offering Information
and the Company has accepted such offer by countersigning a copy of
this Agreement, and any such offer may be withdrawn or revoked,
without obligation or commitment of any kind, at any time prior to
the Company (or Placement Agents on behalf of the Company) sending
(orally, in writing or by electronic mail) notice of its acceptance
of such offer. An indication of interest will involve no obligation
or commitment of any kind until the Investor has been delivered the
Offering Information and this Agreement is accepted and
countersigned by or on behalf of the Company.
[ Remainder of Page Left Blank
Intentionally. Signature Page Follows. ]
- 3 -
Number of
Shares:
Purchase Price Per Share: $
Aggregate Purchase Price: $
Please confirm that the foregoing correctly sets
forth the agreement between us by signing in the space provided
below for that purpose.
|
|
|
|
|
|
|
|
|
Dated as of:
June __, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
INVESTOR
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
Print
Name:
|
|
|
|
|
|
|
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
|
|
Address:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Agreed and
Accepted
this _____ day of June, 2009:
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
1. Authorization and Sale of the
Shares. Subject to the
terms and conditions of this Agreement, the Company has authorized
the sale of the Shares.
2. Agreement
to Sell and Purchase the Shares; Placement Agents.
2.1 At
the Closing (as defined in Section 3.1 ), the Company
will sell to the Investor, and the Investor will purchase from the
Company, upon the terms and conditions set forth herein, the number
of Shares set forth on the last page of the Agreement to which
these Terms and Conditions for Purchase of Shares are attached as
Annex I (the “ Signature Page ”) for the
aggregate purchase price therefor set forth on the Signature
Page.
2.2 The Company proposes to enter into substantially
this same form of Subscription Agreement with certain other
investors (the “ Other Investor s ”) and
expects to complete sales of Shares to them. The Investor and the
Other Investors are hereinafter sometimes collectively referred to
as the “ Investors ,” and this Agreement and the
Subscription Agreements executed by the Other Investors are
hereinafter sometimes collectively referred to as the “
Agreements .”
2.3 Investor acknowledges that the Company has
agreed to pay Lazard Capital Markets LLC and Canaccord Adams Inc.
(each individually, a “ Placement Agent ” and
collectively, the “ Placement Agents ”) a fee
(the “ Placement Fee ”) in respect of the sale
of Shares to the Investor.
2.4 The Company has entered into a Placement Agency
Agreement, dated June _____, 2009 (the “ Placement
Agreement ”), with the Placement Agents that contains
certain representations, warranties, covenants and agreements of
the Company that may be relied upon by the Investor, which shall be
a third party beneficiary thereof. Except with respect to the
material terms and conditions of the transactions contemplated by
this Agreement, the Placement Agreement and any other documents or
agreements contemplated hereby or thereby, the Company confirms
that neither it nor any other person acting on its behalf has
provided the Investor or any Other Investor or its respective
agents or counsel with any information that it believes constitutes
or might constitute material, non-public information which is not
otherwise disclosed in the Prospectus Supplement.
3. Closings
and Delivery of the Shares and Funds.
3.1 Closing . The completion of the purchase and sale of the
Shares (the “ Closing ”) shall occur at a place
and time (the “ Closing Date &rdqu
|
