Unassociated Document


 



Exhibit
10.3







 

 

PREFERRED
STOCK TRANSFER AGENCY AGREEMENT







between







FUELCELL
ENERGY, INC.







and







CONTINENTAL
STOCK TRANSFER & TRUST COMPANY










Dated as
of November 17, 2004

























PREFERRED
STOCK TRANSFER AGENCY AGREEMENT




AGREEMENT,
made as of November 17, 2004, by and between FUELCELL ENERGY, INC., a Delaware
corporation (the "Company"), and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (the
"Transfer
Agent").




B A C K G
R O U N D:




A.      Pursuant to
an Agreement and Certified Copy of Resolutions of Board of Directors of FuelCell
Energy, Inc., dated as of September 14, 1999 (the "Stock
Transfer Agency Agreement"), the
Transfer Agent currently performs transfer agency and other securities-related
services for the Company.




B.      The Company
has authorized and expects to issue on November 17, 2004 100,000 shares of its
5% Series B Cumulative Convertible Perpetual Preferred Stock, par value $.01 per
share (together with up to 35,000 additional shares that may subsequently be
issued to the initial purchasers of the 5% Series B Cumulative Convertible
Perpetual Preferred Stock pursuant to the over-allotment option granted to the
initial purchasers, the "Series
B Preferred Stock"),
initial liquidation preference $1,000 per share, governed by a Certificate of
Designation of the Company, filed with the Secretary of State of the State of
Delaware on November 16, 2004 (the "Certificate
Of Designation").




C.     Pursuant
to the Certificate of Designation, the Company has the option to pay all or any
part of a dividend on the shares of Series B Preferred Stock by delivering to
the transfer agent for the Series B Preferred Stock shares of common stock of
the Company, to be sold for cash to pay dividends to the Holders of the Series B
Preferred Stock. 




D.      The Company
and the Transfer Agent desire to set forth the terms pursuant to which the
Transfer Agent will act as transfer agent, registrar, paying agent and
conversion agent for the Series B Preferred Stock and the Company will effect
any such dividend by delivering shares of Common Stock to the Transfer Agent to
be sold for cash to pay dividends to Holders of Series B Preferred
Stock.




W I T N E
S S E T H:




NOW,
THEREFORE, in consideration of the mutual premises hereinafter set forth, and
other good and valuable consideration, the receipt and sufficiency of which each
of the parties hereby acknowledges, the Company and the Transfer Agent hereby
covenant and agree as follows:




1.     APPOINTMENT.
The Company hereby appoints the Transfer Agent as its transfer agent, registrar,
paying agent and conversion agent for the Series B Preferred Stock, to perform
the services described herein, in the Stock Transfer Agency Agreement and in the
Certificate of Designation relating to the Series B Preferred Stock filed with
the Secretary of State of the State of Delaware (the "Services"), and
the Transfer Agent hereby accepts such appointment and agrees to provide the
Services. The Transfer Agent agrees in carrying out the duties specified in
paragraph 2 below that, although the Company shall pay the Transfer Agent's fees
and expenses, the Transfer Agent is the agent for the Holders of shares of
Series B Preferred Stock and not for the Company for purposes of selling shares
of Common Stock delivered to the Transfer Agent in satisfaction of the Company's
obligation with respect to any payment due with respect to the Series B
Preferred Stock.


 




















 

2.     STOCK
ISSUANCE.




(a)     In the
event the Company desires to pay all or any part of a dividend or other payment
on the Series B Preferred Stock with shares of Common Stock, prior to the
applicable payment date, the Company will deliver to the Transfer Agent a number
of shares, which when sold by the Transfer Agent, will result in net cash
proceeds sufficient (together with any cash payments made by the Company to the
Transfer Agent for such purpose) to permit the Transfer Agent to pay the
applicable payment in cash to the Holders of shares of Series B Preferred Stock,
together with instructions ("Instructions") for
the Transfer Agent to effect such sales in accordance with this Agreement, which
Instructions shall indicate the applicable payment date, the aggregate payment
to be made on such date and any specific instructions regarding the manner of
sale of the shares of Common Stock. To pay dividends by delivering shares of
Common Stock to the transfer agent, the Company will first provide the transfer
agent with evidence of an effective registration statement under the Securities
Act of 1933 permitting the immediate sale of the shares of Common Stock in the
public market.




(b)     Upon
receipt of such shares of Common Stock and the related Instructions, the
Transfer Agent shall, not later than the business day following such receipt,
take such action as is specified in the Instructions.




(c)     The
Company and the Transfer Agent agree to the following procedures with respect to
any sale of Common Stock delivered by the Company to the Transfer Agent in
connection with any payment on the Series B Preferred Stock. Notwithstanding
Section 1 above and Section 3 below, the Company may include with the
instructions referred to in this Section 2 or, at any other time give the
Transfer Agent notice of, restrictions with respect to the sale of the Common
Stock by the Transfer Agent including, without limitation, maximum and minimum
sale prices, limit instructions, sale scheduling, sale blackout periods,
commissions and brokerage fees. The Company may amend or revoke an Instruction
at any time by notice to the Transfer Agent. The Transfer Agent agrees to
conduct sales of Common Stock delivered to it, in accordance with the terms of
this Agreement and any applicable Instruction and amendments
thereto.




(d)     Subject
to any existing Instruction:




(i)      sales may be
effected on any United States national or regional securities exchange or market
on which such Common Stock is then listed or admitted for trading;
and




(ii)     the
Transfer Agent may engage qualified brokers or other agents to effect such
sales.

 


 




















 

(e)     Sales
made pursuant to any Instructions may be made through one or more brokers (which
may be affiliated with the Transfer Agent), which may receive customary
compensation in the form of fees or commissions. Not later than the business day
following the date on which any sale of shares of Common Stock is made pursuant
to any Instructions, the Transfer Agent shall give the Company written notice of
the price at which each such share is sold and any brokerage fee or commission
paid in connection with such sale.




(f)     The
Transfer Agent is hereby authorized to issue that number of shares of Common
Stock sold pursuant to this Agreement in such denominations and registered in
such names as the Transfer Agent shall determine in accordance with such sales.
Prior to or on the settlement date for each sale of shares of Common Stock, the
Transfer Agent will amend the Company's Common Stock register and deliver new
shares of Common Stock to the Depository in book-entry form under the Full FAST
program of the Depository.




(g)     On or
prior to the applicable dividend payment date, the Transfer Agent shall make
payment of all cash proceeds, net of any brokers' fees or commissions, from such
sales to the Holders of record of Series B Preferred Stock as of the relevant
record date by mailing a check to each Holder, payable to such Holder, to the
address of record or dividend mailing address (or by wire transfer of
immediately available funds to such account as is specified by such holder),
with respect to such Holder's pro rata share of such net cash
proceeds.




3.     EXCLUSIVE
BENEFIT OF THE HOLDERS. All shares of Common Stock delivered by the Company to
the Transfer Agent pursuant to this Agreement, and the net cash proceeds from
the sale of such shares, shall be held by the Transfer Agent for the exclusive
benefit of the Holders of the Series B Preferred Stock. 




4.     ISSUANCE
OF COMMON STOCK AND PAYMENT OF DIVIDENDS. The issuance and delivery of
certificates evidencing any such shares of Common Stock to the Transfer Agent
and the payment of any amounts to Holders of the Series B Preferred Stock, shall
be effected in accordance with the Stock Transfer Agency Agreement and this
Agreement.




5.     FEES AND
EXPENSES. In consideration for the Transfer Agent 's provision of the Services,
the Company agrees to pay fees and reimburse the Transfer Agent for the
reasonable expenses pursuant to the terms of the Stock Transfer Agency
Agreement.




6.     HOLDERS'
RIGHT TO DELIVER AN ELECTION NOTICE.




(a)     If a
Holder of Series B Preferred Stock, as of a particular Dividend Payment Date,
delivers an irrevocable notice (the "Election
Notice") to the
Transfer Agent, at least 30 days prior to the applicable Dividend Payment Date,
requesting the Transfer Agent not to sell shares of Common Stock held on behalf
of that Holder to provide cash to pay all or a portion of the dividends payable
to such Holder, the Transfer Agent will deliver to or for the account of such
Holder on the Dividend Payment Date, shares of Common Stock having a value equal
to the cash dividends otherwise payable to such Holder based on the average of
the Closing Sale Prices of Common Stock over the five Trading Day period ending
on the third Business Day prior to the applicable Dividend Payment Date. Those
shares of Common Stock will be treated as restricted securities, will bear a
legend to that effect and will be issued in physical certificated
form.

 




















 

In lieu
of issuing fractional shares of Common Stock, the Company will pay a cash
adjustment in respect of any fractional interest in an amount equal to the
fractional interest multiplied by the last reported Closing Sale Price of shares
of the Company’s Common Stock on the Nasdaq Stock Market (or such other national
securities exchange or automated quotation system on which the shares of Common
Stock are then listed or authorized for quotation, or if not so listed or
authorized for quotation, an amount determined in good faith by the Company’s
board of directors to be the fair value of the shares of Common Stock) on the
Trading Day preceding the date shares of the Company’s Common Stock are issued
to pay dividends.

 

Promptly
after each Dividend Payment Record Date, the Transfer Agent shall provide the
Company with details of the aggregate number of shares of Series B Preferred
Stock held by Holders who have delivered an Election Notice. 




(b)     The
Company will notify the Transfer Agent of the aggregate amount of any dividend
or other payment and whether it will pay this amount in cash, by delivering
shares of Common Stock or through a combination thereof not later than 5
Business Days prior to the applicable payment date. If the Transfer Agent shall
receive an Election Notice, the Company shall also provide the Transfer Agent,
upon request, a calculation of the average of the Closing Sale Prices of Common
Stock over the five Trading Day period ending on the third Business Day prior to
the applicable Dividend Payment Date for purposes of determining the number of
shares of Common Stock having a value equal to the cash dividends otherwise
payable.




7.     INDEMNIFICATION.
In acting hereunder, each of the parties and their subsidiaries, affiliates,
officers, directors and employees shall be entitled to all rights, benefits,
protections and indemnities accorded to it in the Stock Transfer Agency
Agreement. The Transfer Agent shall not be responsible for any consequential
damages as a result of any purchase, sale or calculation of dividends
hereunder.




8.     TERMINATION.
Either of the parties may terminate this Agreement by giving to the other party
a notice in writing specifying the date of such termination, which shall be not
less than 180 days after the date of receipt of such notice.




Prior to
termination, the Transfer Agent agrees to provide its full cooperation in the
orderly transition of the Services to the Company or the Company's designated
agent including, but not limited to, packing and preparing for shipment any
materials or goods to be transferred; provision of reports, files and similar
media necessary for the continuation of such services; and assisting with the
implementation and operation of transitional arrangements with respect
to the
Services. 




9.     DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:


 




















 

"Business
Day" means
any day other than a Saturday, Sunday or a day on which state or U.S. federally
chartered banking institutions in New York, New York are not required to be
open.




“Closing
Sale Price” of the
Common Stock on any date means the closing sale price per share (or, if no
closing sale price is reported, the average of the closing bid and ask prices
or, if more than one in either case, the average of the average closing bid and
the average closing ask prices) on such date as reported on the principal United
States securities exchange on which Common Stock is traded or, if the Common
Stock is not listed on a United States national or regional securities exchange,
as reported by Nasdaq or by the National Quotation Bureau Incorporated. In the
absence of such quotations, the Board of Directors of the Company shall be
entitled to determine the Closing Sale Price on the basis it considers
appropriate, which determination shall be conclusive. The Closing Sale Price
shall be determined without reference to any extended or after hours
trading.

 

"Common
Stock" means
any shares of any class of the Company that has no preference in respect of
dividends or of amounts payable in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the Company and that is not subject to
redemption by the Company. Subject to the provisions of Section 10 of the
Certificate of Designations, however, shares issuable on conversion of the
shares of Series B Preferred Stock shall include only shares of the class
designated as Common Stock of the Company as of November 17, 2004 or shares of
any class or classes resulting from any reclassification or reclassifications
thereof and that have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion that the total number of shares of such
class resulting from all such reclassifications bears to the total number of
shares of all such classes resulting from all such
reclassifications.

 

"Company" has the
meaning specified in the preamble to this Agreement.




"Depository" means
The Depository Trust Company or its nominee and their respective
successors.




"Dividend
Payment Date" means
February 15, May 15, August 15 and November 15 of each year, commencing
February 15, 2005, or if any such date is not a Business Day, on the next
succeeding Business Day.




"Dividend
Payment Record Date" with
respect to the dividends payable on February 15, May 15,
August 15 and November 15 of each year, February 1, May 1,
August 1 and November 1 of each year, respectively, or such other
record date, not more than 60 days and not less than 10 days preceding
the applicable Dividend Payment Date, as shall be fixed by the Board of
Directors of the Company.




"Election
Notice" has the
meaning specified in Section 6(a).

 

 























"Holder" means
the person in whose name the Series B Preferred Stock is registered in the stock
register of the Company.




"Series
B Preferred Stock" has the
meaning specified in the preamble to this Agreement.




"Services" has the
meaning specified in Section 1 of this Agreement.




"Stock
Transfer Agency Agreement" has the
meaning specified in the Preamble to this Agreement.




"Trading
Day" means a
day during which trading in securities generally occurs on the Nasdaq Stock
Market or, if the applicable security is not listed on the Nasdaq Stock Market,
on the principal other national or regional securities exchange on which the
applicable security is then listed or, if the applicable security is not listed
on a national or regional securities exchange, on the Nasdaq Stock Market or, if
the applicable security is not quoted on the Nasdaq Stock Market, on the
principal other market on which the applicable security is then traded
(provided that no
day on which trading of the applicable security is suspended on the Nasdaq Stock
Market or such exchange or other trading market will count as a Trading
Day).

 

"Transfer
Agent" has the
meaning specified in the preamble to this Agreement.




10.     NOTICES. All
notices and other communications provided for or permitted hereunder shall be
made in writing by hand delivery, first-class mail, facsimile transmission, or
air courier which guarantees overnight delivery: 




if to
the Company:




FuelCell
Energy, Inc.

3 Great
Pasture Road

Danbury,
Connecticut 06813

Fax No.
(203) 743-6204

Attention:
Joseph G. Mahler




if to
the Transfer Agent:




Continental
Stock Transfer & Trust Company 

17
Battery Place

New York,
New York 10004

Fax No.
(212) 616-7616

Attention:
Compliance Department 




All such
notices and communications shall be deemed to have been duly given:
at

the time
delivered by hand, if personally delivered; three business days after being
deposited in the mail, postage prepaid, if mailed; when receipt is acknowledged
by recipient's facsimile machine operator, if sent by facsimile transmission;
and on the day delivered, if sent by overnight air courier guaranteeing next day
delivery.


 




















 

11.     SUCCESSORS
AND ASSIGNS. This Agreement shall be binding upon the successors and assigns of
each of the parties.




12.     COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, but all such counterparts shall together
constitute one and the same Agreement. 




13.     AMENDMENT.
This Agreement may not be amended or modified in any manner except by a written
agreement duly authorized and executed by both parties.




14.     GOVERNING
LAW. This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.

























IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective corporate officers, thereunto duly authorized as of the day and
year first above written.

 

 


	 	 	 
	 	FUELCELL ENERGY,
      INC.
	 
 	 
 	 
 
		By:  	/s/ Joseph G.
  Mahler
	 	
      

      Name: Joseph G. Mahler
	 	Title: Vice President, Chief
      Financial Officer




 

  
	 	 	 
	 	
      CONTINENTAL STOCK 

      TRANSFER & TRUST COMPANY 

	 
 	 
 	 
 
		By:  	/s/ William F.
      Seegraber
	 	
      

      Name: William F. Seegraber
	 	Title: Vice
President