SUBSCRIPTION AGREEMENT
Exhibit 99.1
FuelCell Energy, Inc.
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Gentlemen:
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 # 000000000
Account Name: FuelCell Energy, Inc.
Account Number: 806022190
Attention: Xxxxxx Xxxxx
Phone: (212) 623 -5087
Facsimile: (000) 000-0000
ABA # 000000000
Account Name: FuelCell Energy, Inc.
Account Number: 806022190
Attention: Xxxxxx Xxxxx
Phone: (212) 623 -5087
Facsimile: (000) 000-0000
— OR —
| [ ] 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 Xxxxx 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. |
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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:
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.]
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Number of Shares:
Purchase Price Per Share: $
Aggregate Purchase Price: $
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:
this _____ day of June, 2009:
FUELCELL ENERGY, INC.
By: |
||||
| Title: | ||||
ANNEX I
TERMS AND CONDITIONS FOR PURCHASE OF SHARES
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 Investors”) 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 Xxxxx 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”) to be specified by the Company and the
Placement Agents, and of which the Investors will be notified in advance by the Placement Agents,
in accordance with Rule 15c6-1 promulgated under the Securities Exchange Act of 1934, as amended
(the “Exchange Act”). At the Closing, (a) the Company shall cause the Transfer Agent to deliver to
the Investor the number of Shares set forth on the Signature Page registered in the name of the
Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit A, in
the name of a nominee designated by the Investor and (b) the aggregate purchase price for the
Shares being purchased by the Investor will be delivered by or on behalf of the Investor to the
Company.
3.2 Conditions to the Obligations of the Parties.
(a) Conditions to the Company’s Obligations. The Company’s obligation to issue and
sell the Shares to the Investor shall be subject to: (i) the receipt by the Company of the purchase
price for the Shares being purchased hereunder as set forth on the Signature Page and (ii) the
accuracy of the representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing Date.
(b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Shares will be subject to the accuracy of the representations and warranties made by the
Company and the fulfillment of those undertakings of the Company to be fulfilled prior to the
Closing Date, including without limitation, those contained in the Placement Agreement, and to the
condition that neither Placement Agent shall have: (i) terminated the Placement Agreement pursuant
to the terms thereof or (ii) determined that the conditions to the closing in the Placement
Agreement have not been satisfied. The Investor’s obligations are expressly not conditioned on the
purchase by any or all of the Other Investors of the Shares that they have agreed to purchase from
the Company. The Investor understands and agrees that, in the event that either Placement Agent in
its sole discretion determines that the conditions to closing in the Placement Agreement have not
been satisfied or if the Placement Agreement may be terminated for any other reason permitted by
such Agreement, then such Placement Agent may, but shall not be obligated to, terminate such
Agreement, which shall have the effect of terminating this Subscription Agreement pursuant to
Section 14 below.
3.3 Delivery of Funds.
(a) DWAC Delivery. If the Investor elects to settle the Shares purchased by such
Investor through DTC’s Deposit/Withdrawal at Custodian (“DWAC”) delivery system, no later than
one (1) business day after the execution of this Agreement by the Investor and the Company, the
Investor shall 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 designated by the Company and
the Placement Agents pursuant to the terms of that certain Escrow Agreement (the “Escrow
Agreement”) dated as of the date hereof, by and among the Company, the Placement Agents and
JPMorgan Chase Bank, N.A. (the “Escrow Agent”):
JPMorgan Chase Bank, N.A.
ABA # 000000000
Account Name: FuelCell Energy, Inc.
Account Number: 806022190
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
ABA # 000000000
Account Name: FuelCell Energy, Inc.
Account Number: 806022190
Attention: Xxxxxx Xxxxx
Tel: (000) 000-0000
Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent on
behalf of the Investors to the Company upon the satisfaction, in the sole judgment of the Placement
Agents, of the conditions set forth in Section 3.2(b) hereof. The Placement Agents shall have no
rights in or to any of the escrowed funds, unless the Placement Agents and the Escrow Agent are
notified in writing by the Company in connection with the Closing that a portion of the escrowed
funds shall be applied to the Placement Fee. The Company agrees to indemnify and hold the Escrow
Agent harmless from and against any and all losses, costs, damages, expenses and claims (including,
without limitation, court costs and reasonable attorneys fees) (“Losses”) arising under this
Section 3.3 or otherwise with respect to the funds held in escrow pursuant hereto or
arising under the Escrow Agreement, unless it is finally, judicially determined that such Losses
resulted directly from the willful
misconduct or gross negligence of the Escrow Agent. Anything in this Agreement to the
contrary notwithstanding, in no event shall the Escrow Agent be liable for any special, indirect or
consequential loss or damage of any kind whatsoever (including but not limited to lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss or damage and regardless
of the form of action.
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(b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall confirm that the account or accounts at Lazard Capital Markets
LLC (“LCM”) or Canaccord Xxxxx Inc. (“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.
3.4 Delivery of Shares.
(a) DWAC Delivery. If the Investor elects to settle the Shares purchased by such
Investor through DTC’s DWAC delivery system, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with the Shares being purchased by
such Investor are maintained, which broker/dealer shall be a DTC participant, to set up a DWAC
instructing Continental Stock Transfer & Trust Company, the Company’s Transfer Agent, to credit
such account or accounts with the Shares. Such DWAC instruction shall indicate the settlement date
for the deposit of the Shares, which date shall be provided to the Investor by LCM and Canaccord.
Simultaneously with the delivery to the Company by the Escrow Agent of the funds held in escrow
pursuant to Section 3.3 above, the Company shall direct the Transfer Agent to credit the
Investor’s account or accounts with the Shares pursuant to the information contained in the DWAC.
(b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall 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. On the Closing Date, the Company shall deliver the Shares to the Investor through
DTC directly to the account(s) at LCM or Canaccord, as the case may be, identified by Investor and
simultaneously therewith payment shall be made by LCM or Canaccord, as the case may be, by wire
transfer to the Company.
4. Representations, Warranties and Covenants of the Investor.
The Investor acknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agents that:
4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in shares presenting an investment
decision like that involved in the purchase of the Shares, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on
the Signature Page and the Investor Questionnaire and the answers thereto are true and correct as
of the date hereof and will be true and correct as of the Closing Date and (c) in connection with
its decision to purchase
the number of Shares set forth on the Signature Page, has received and is relying only upon
the Disclosure Package and the documents incorporated by reference therein and the Offering
Information.
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4.2 (a) No action has been or will be taken in any jurisdiction outside the United States by
the Company or the Placement Agents that would permit an offering of the Shares, or possession or
distribution of offering materials in connection with the issue of the Shares in any jurisdiction
outside the United States where action for that purpose is required, (b) if the Investor is outside
the United States, it will comply with all applicable laws and regulations in each foreign
jurisdiction in which it purchases, offers, sells or delivers Shares or has in its possession or
distributes any offering material, in all cases at its own expense and (c) neither Placement Agent
is authorized to make or has made any representation, disclosure or use of any information in
connection with the issue, placement, purchase and sale of the Shares, except as set forth or
incorporated by reference in the Base Prospectus or the Prospectus Supplement.
4.3 (a) The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken all necessary action
to authorize the execution, delivery and performance of this Agreement, and (b) this Agreement
constitutes a valid and binding obligation of the Investor enforceable against the Investor in
accordance with its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors’ and contracting
parties’ rights generally and except as enforceability may be subject to general principles of
equity (regardless of whether such enforceability is considered in a proceeding in equity or at
law) and except as to the enforceability of any rights to indemnification or contribution that may
be violative of the public policy underlying any law, rule or regulation (including any federal or
state securities law, rule or regulation).
4.4 The Investor understands that nothing in this Agreement, the Prospectus or any other
materials presented to the Investor in connection with the purchase and sale of the Shares
constitutes legal, tax or investment advice. The Investor has consulted such legal, tax and
investment advisors and made such investigation as it, in its sole discretion, has deemed necessary
or appropriate in connection with its purchase of Shares.
4.5 Since the first date on which a Placement Agent contacted the Investor about the Offering,
the Investor has not disclosed any information regarding the Offering to any third parties (other
than its legal, accounting and other advisors) and has not engaged in any transactions involving
the securities of the Company (including, without limitation, any Short Sales involving the
Company’s securities). The Investor covenants that it will not engage in any purchases or sales of
the securities of the Company (including Short Sales) prior to the time that the transactions
contemplated by this Agreement are publicly disclosed. The Investor agrees that it will not use
any of the Shares acquired pursuant to this Agreement to cover any short position in the Common
Stock if doing so would be in violation of applicable securities laws. For purposes hereof, “Short
Sales” include, without limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act, whether or not against the box, and all types of direct and
indirect stock pledges, forward sales contracts, options, puts, calls, short sales, swaps, “put
equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements
(including on a total return basis), and sales and other transactions through non-US broker dealers
or foreign regulated brokers.
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5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by either Placement Agent,
all covenants, agreements, representations and warranties made by the Company and
the Investor herein will survive the execution of this Agreement, the delivery to the Investor
of the Shares being purchased and the payment therefor. Each Placement Agent and Lazard Fréres &
Co. shall be third party beneficiaries with respect to the representations, warranties and
agreements of the Investor in Section 4 hereof.
6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and (c) will be deemed given (i) if delivered by first-class registered or certified
mail domestic, three business days after so mailed, (ii) if delivered by nationally recognized
overnight carrier, one business day after so mailed, (iii) if delivered by International Federal
Express, two business days after so mailed and (iv) if delivered by facsimile, upon electric
confirmation of receipt and will be delivered and addressed as follows:
(a) if to the Company, to:
FuelCell Energy, Inc.
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention:
Facsimile:
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxx 00000
Attention:
Facsimile:
with copies to:
Xxxxxxxxx Xxxxxxx Xxxx & Xxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.: 212-336-1244
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.: 212-336-1244
and
Xxxxxxxx & Xxxx LLP
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 203-462-7599
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No.: 203-462-7599
(b) if to the Investor, at its address on the Signature Page hereto, or at such
other address or addresses as may have been furnished to the Company in writing.
7. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.
8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.
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9. Severability. In case any provision contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the remaining provisions
contained herein will not in any way be affected or impaired thereby.
10. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other jurisdiction.
11. Counterparts. This Agreement may be executed in two or more counterparts, each of which will
constitute an original, but all of which, when taken together, will constitute but one instrument,
and will become effective when one or more counterparts have been signed by each party hereto and
delivered to the other parties. The Company and the Investor acknowledge and agree that the
Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or the
filing by the Company of an electronic version thereof with the Commission).
12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt of the
Company’s signed counterpart to this Agreement, together with the Prospectus Supplement (or the
filing by the Company of an electronic version thereof with the Commission), shall constitute
written confirmation of the Company’s sale of Shares to such Investor.
13. Press Release. The Company and the Investor agree that the Company shall issue a press release
announcing the Offering and disclosing all material information regarding the Offering prior to
the opening of the financial markets in New York City on the business day immediately after the
date hereof.
14. Termination. In the event that the Placement Agreement is terminated by either Placement Agent
pursuant to the terms thereof, this Agreement shall terminate without any further action on the
part of the parties hereto.
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Exhibit A
FUELCELL ENERGY, INC.
INVESTOR QUESTIONNAIRE
FUELCELL ENERGY, INC.
INVESTOR QUESTIONNAIRE
Pursuant to Section 3 of Annex I to the Agreement, please provide us with the
following information:
1. The exact name that your Shares are to be registered in. You may
use a nominee name if appropriate: |
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2. The relationship between the Investor and the registered holder
listed in response to item 1 above: |
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3. The mailing address of the registered holder listed in response to
item 1 above: |
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4. The Social Security Number or Tax Identification Number of the
registered holder listed in the response to item 1 above: |
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5. Name of DTC Participant (broker-dealer at which the account or
accounts to be credited with the Shares are maintained): |
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6. DTC Participant Number: |
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7. Name of Account at DTC Participant being credited with the Shares: |
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8. Account Number at DTC Participant being credited with the Shares: |
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