SEC Comment Letter for FUELCELL ENERGY INC (FCEL, FCELB) (CIK 0000886128) (FCEL) — May 21, 2010
FUELCELL ENERGY INC (FCEL, FCELB) (CIK 0000886128)
Date: May 21, 2010 · CIK: 0000886128 · Accession: 0000000000-10-028362
AI Filing Summary & Sentiment
File numbers found in text: 333-166565
Letter
UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 DIVISION OF CORPORATION FINANCE Mail Stop 3030 May 21, 2010 R. Daniel Brdar President, Chief Executive Officer and Chairman of the Board FuelCell Energy, Inc. 3 Great Pasture Road Danbury, CT 06813 Re: FuelCell Energy, Inc. Registration Statement on Form S-3 Filed May 6, 2010 File No. 333-166565
Dear Mr. Brdar:
We have limited our review of your filing to those issues we have addressed in our comment. Please understand th at the purpose of our review process is to assist you in your compliance with the applicable disclosu re requirements and to enhance the overall disclosure in your filing. We look forward to working with you in these respects. We welcome any questions you may have about any as pect of our review. Feel free to call us at the telephone numbers listed at the end of this letter.
1. We reference your disclosure on page 21 under the heading “Incorporation by Reference.” We note that you incorpor ate by reference you r annual report on Form 10-K for the fiscal year ended Oc tober 31, 2009 as well as several current reports on Form 8-K which you filed s ubsequent to October 31, 2009. Please revise your disclosure to also incorporate by refere nce your Form 8-K filed on November 2, 2009. Please refer to Item 12(a)(2) of Form S-3.
We urge all persons who are responsible for the accuracy and adequacy of the disclosure in the filing to be certain that the filing includes all in formation required under the Securities Act of 1933 and that they have provided all information investors require for an informed investment decision. Since the company and its management are in possession of all facts relating to a company’ s disclosure, they are responsible for the accuracy and adequacy of the disclosures they have made.
R. Daniel Brdar FuelCell Energy, Inc. May 21, 2010 Page 2 Notwithstanding our comment, in the even t the company requests acceleration of the effective date of the pending registration statement, it should furnish a letter, at the time of such request, acknowledging that: should the Commission or the staff, acting purs uant to delegated authority, declare the filing effective, it does not foreclose th e Commission from taking any action with respect to the filing; the action of the Commission or the staff, acting pursuant to delegated authority, in declaring the filing effective, does not relieve the company from its full responsibility for the adequacy and accuracy of the disclosure in the filing; and the company may not assert staff comments a nd the declaration of effectiveness as a defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States. In addition, please be advi sed that the Division of En forcement has access to all information you provide to the staff of the Di vision of Corporation Finance in connection with our review of your filing or in response to our comments on your filing. We will consider a written request for acceleration of the effective date of the registration statement as conf irmation of the fact that t hose requesting acceleration are aware of their respective re sponsibilities under the S ecurities Act of 1933 and the Securities Exchange Act of 1934 as they rela te to the proposed public offering of the securities specified in the above registration statement. We will act on the request and, pursuant to delegated authority, grant acce leration of the effective date. We direct your attention to Rules 46 0 and 461 regarding requesting acceleration of a registration statement. Please allow ad equate time after the filing of any amendment for further review before submitting a request for acceleration. Please provide this request at least two business days in a dvance of the requested effective date. Please contact Joseph McCann at (202) 551-6262 or me at (202) 551-3805 with any questions. S i n c e r e l y , Peggy Fisher Assistant Director
cc (via fax): Richard A. Krantz, Esq. – Robinson & Cole LLP
Show Raw Text
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
Mail Stop 3030
May 21, 2010
R. Daniel Brdar President, Chief Executive Officer and Chairman of the Board FuelCell Energy, Inc. 3 Great Pasture Road Danbury, CT 06813
Re: FuelCell Energy, Inc.
Registration Statement on Form S-3 Filed May 6, 2010
File No. 333-166565
Dear Mr. Brdar:
We have limited our review of your filing to those issues we have addressed in
our comment. Please understand th at the purpose of our review process is to assist you in
your compliance with the applicable disclosu re requirements and to enhance the overall
disclosure in your filing. We look forward to working with you in these respects. We
welcome any questions you may have about any as pect of our review. Feel free to call us
at the telephone numbers listed at the end of this letter.
1. We reference your disclosure on page 21 under the heading “Incorporation by Reference.” We note that you incorpor ate by reference you r annual report on
Form 10-K for the fiscal year ended Oc tober 31, 2009 as well as several current
reports on Form 8-K which you filed s ubsequent to October 31, 2009. Please
revise your disclosure to also incorporate by refere nce your Form 8-K filed on
November 2, 2009. Please refer to Item 12(a)(2) of Form S-3.
We urge all persons who are responsible for the accuracy and adequacy of the
disclosure in the filing to be certain that the filing includes all in formation required under
the Securities Act of 1933 and that they have provided all information investors require
for an informed investment decision. Since the company and its management are in possession of all facts relating to a company’ s disclosure, they are responsible for the
accuracy and adequacy of the disclosures they have made.
R. Daniel Brdar
FuelCell Energy, Inc. May 21, 2010 Page 2 Notwithstanding our comment, in the even t the company requests acceleration of
the effective date of the pending registration statement, it should furnish a letter, at the time of such request, acknowledging that: should the Commission or the staff, acting purs uant to delegated authority, declare the
filing effective, it does not foreclose th e Commission from taking any action with
respect to the filing;
the action of the Commission or the staff, acting pursuant to delegated authority, in
declaring the filing effective, does not relieve the company from its full responsibility
for the adequacy and accuracy of the disclosure in the filing; and
the company may not assert staff comments a nd the declaration of effectiveness as a
defense in any proceeding initiated by the Commission or any person under the federal securities laws of the United States.
In addition, please be advi sed that the Division of En forcement has access to all
information you provide to the staff of the Di vision of Corporation Finance in connection
with our review of your filing or in response to our comments on your filing.
We will consider a written request for acceleration of the effective date of the
registration statement as conf irmation of the fact that t hose requesting acceleration are
aware of their respective re sponsibilities under the S ecurities Act of 1933 and the
Securities Exchange Act of 1934 as they rela te to the proposed public offering of the
securities specified in the above registration statement. We will act on the request and,
pursuant to delegated authority, grant acce leration of the effective date.
We direct your attention to Rules 46 0 and 461 regarding requesting acceleration
of a registration statement. Please allow ad equate time after the filing of any amendment
for further review before submitting a request for acceleration. Please provide this request at least two business days in a dvance of the requested effective date.
Please contact Joseph McCann at (202) 551-6262 or me at (202) 551-3805 with
any questions. S i n c e r e l y , Peggy Fisher
Assistant Director
cc (via fax): Richard A. Krantz, Esq. – Robinson & Cole LLP