Company Name: FuelCell Energy, Inc.
Public Availability Date: February 13, 2006
Document Sections:
INQUIRY LETTER
APPENDIX
STAFF REPLY LETTER
[INQUIRY LETTER]
December 28, 2005
Via Federal Express
U.S. Securities and Exchange Commission
Division of Corporation Finance
Office of Chief Counsel
100 F Street, N.E.
Washington, D.C. 20549
RE: Shareholder Proposal Submitted to FuelCell Energy, Inc.
Ladies and Gentlemen:
This letter is submitted on behalf of our client, FuelCell Energy, Inc., a
Delaware corporation, pursuant to Rule 14a-8(j) under the Securities Exchange
Act of 1934, as amended. The Company hereby gives notice of its intention to
omit from its proxy statement and related proxy materials (collectively, the
"Proxy") the proposal of Ken McMillen ("Mr. McMillen") submitted to the Company
by e-mail on December 14, 2005 (the "Proposal"). The Proposal in its entirety is
restated below together with a description of voice messages exchanged between
the Company and Mr. McMillen. The Company has advised us that the Proxy is
tentatively scheduled to be filed pursuant to Rule 14a-6 on or about February
15, 2006. The Company was unable to timely file its no-action request with the
Securities and Exchange Commission (the "Commission") prior to the 80-day period
pursuant to Rule 14a-8(j) because the Company only received the Proposal on
December 14, 2005. Pursuant to the provisions of Rule 14a-8(j), enclosed for
filing are six (6) copies of this letter and the Proposal. We are also sending a
copy of this letter and the attachments hereto to Mr. McMillen in accordance
with Rule 14a-8(j).
The Company respectfully requests the concurrence of the Staff of the Division
of Corporation Finance that no enforcement action will be recommended by the
Commission if the Company omits the Proposal from the Proxy.
The Proposal
December 13, 2005Mr. McMillen left a voice message with the Company stating
that he would like to serve on the Company's Board of Directors and stated that
he sent a letter to the Company proposing same.
December 13, 2005An employee of the Company retuned Mr. McMillen's call whereby
she in turn left a message with Mr. McMillen stating that the Company never
received such letter and requested that Mr. McMillen send a copy of same by
e-mail.
Following the foregoing exchange of voice message, the following e-mail was
received by the Company from Mr. McMillen.
December 14, 2005 - Mr. McMillen e-mailed the following to the Company:
"Thank you for retuning my call. I seek to serve on your company's board. My CV
is attached."
A copy of the foregoing e-mail, together with the CV of Mr. McMillen, is
attached hereto. Other than as set forth herein, no letter was received by the
Company nor was there any other additional correspondence exchanged between the
Company and Mr. McMillen.
It is our opinion that the Proposal may be omitted from the Proxy based on Rules
14a-8(e) and 14a-8(i)(8).
Rule 14a-8(e)
Rule 14a-8(e) provides that the Proposal must be submitted by the Company's
properly determined deadline. In accordance with Rule 14a-8(e)(2), shareholder
proposals submitted for regularly scheduled annual meetings must be received by
the Company not less than 120 calendar days before the one year anniversary of
the mailing date of the previous year's annual meeting proxy statement, provided
the Company held a previous annual meeting and the date of the upcoming annual
meeting has not changed by more than 30 days from the date of the previous
year's annual meeting.
The Company's proxy statement dated February 27, 2005 (the "2004 Proxy") for its
previous year's annual meeting held on March 29, 2005, was first sent or given
to shareholders on February 28, 2005. Included in the Company's 2004 Proxy was
the deadline for shareholder proposals to be included and considered at its next
annual meeting, which deadline was October 27, 2005. The Company does not
anticipate that its upcoming annual meeting will be changed by more than 30 days
from its previous annual meeting. The Company received the Proposal on December
14, 2005.
Based on the foregoing, the Proposal is excludable under pursuant to Rule
14a-8(e).
Please note that the Proposal, in addition for being deficient for failure to
timely submit the Proposal prior to the Company's properly determined deadline,
is deficient for Mr. McMillen's failure to demonstrate his eligibility to submit
the Proposal pursuant to Rule 14a-8(b). Regardless of such deficiencies, the
Company has not provided Mr. McMillen with a notice of deficiency. Rule 14a-8(f)
provides that "a company need not provide you such notice of a deficiency if the
deficiency cannot be remedied, such as if you fail to submit a proposal by the
company's properly determined deadline. If the company intends to exclude the
proposal, it will later have to make a submission under Rule 14a-8 and provide
you with a copy under Question 10 below, Rule 14a-8(j)." Since the deficiency
for failure to timely submit the Proposal cannot be remedied because such time
has passed, the Company is not providing Mr. McMillen with a notice of
deficiency but is providing Mr. McMillen with a copy of this no-action request
together with attachments hereto.
Rule 14a-8(i)(8)
Rule 14a-8(e) provides that the Proposal may be excluded if it "relates to an
election for membership on the company's board of directors.." The Proposal
relates to the election of Mr. McMillen as a member of the Company's Board of
Directors. Consequently, the Proposal is excludable pursuant to Rule
14a-8(i)(8).
Based on the foregoing, the Company intends to exclude the Proposal from the
Proxy. Please contact Richard Krantz at 203-462-7506 with any questions
regarding this request.
Sincerely,
/s/
Richard A. Krantz
Enclosures
Copy to: Ken McMillen FuelCell Energy, Inc.
[APPENDIX]
Ken A. McMillen
51 Morton Street New York, NY 10014
212-675-4988 ken@mcmillenllc.com
OBJECTIVE
Entrepreneur with operating, financial and scientific background seeks
participating board seat with middle market public or private company.
SUMMARY
Mr. McMillen has twenty-three years experience in private investing, investment
banking, management consulting, and senior management with large and small
companies. He has served as advisor or principal for scores of companies, and
has raised over $300 million for limited partnerships and leveraged buyouts.
Extensive contacts. Many contacts in Fortune 1000 companies, executive search
firms, investment banking, commercial banking, operations consulting, and
corporate governance.
Mergers & Acquisitions. Initiated or been a part of dozens of M&A transactions,
including deal sourcing, financing, team management, and integration of
operations.
Operations. Held operating management positions at Fortune 100, middle market
and small companies.
Business Owner. Acquired manufacturing company in a 1988 LBO, and operated that
company for ten years.
Governmental/Technology. Have bid, negotiated, and managed major technology
programs for NASA, JPL, USAF, and government contractors.
Crisis Management and Corporate Revitalization. Have led scores of companies
through difficult periods and transitions.
Corporate Governance. Formerly Chairman of a Canadian public company. Currently
a director of two private companies; a member of the National Association of
Corporate Directors.
BOARD of DIRECTORS EXPERIENCE
Mr. McMillen currently serves as a director of Stark Mfg. Company and School Bus
Parts Unlimited. He is a member of the board of directors and investment
committee of CoBe Capital, LLC. He served as Chairman of the Board of Beta
Brands Inc., a public company listed on the Toronto Stock Exchange. He served
ten years as Chairman & CEO of Lincoln Can Mfg. Corp., three years as member of
the board of directors and investment committee of American Industrial
Acquisition Corp., and twenty years as a director of 51 Morton Street Owners'
Corp.
FINANCIAL AND OPERATING EXPERIENCE
CoBe CAPITAL, LLC, New York, NY www.cobecapital.com Present Partner and Managing
Director.
CoBe Capital, LLC is a family owned private equity firm with an investment focus
on corporate divestitures in North America and Europe. CoBe Capital's portfolio
includes manufacturing and distribution companies.
CARL MARKS & CO., INC., New York, NY www.cmequity.com (2002-2004)
Managing Director Business Development, CM Equity Partners.
CM Equity Partners, an affiliate of Carl Marks & Co., is a private equity
investment firm with a portfolio of ten companies and combined revenue of
approximately $900 million. Carl Marks & Co., founded in 1925, is a middle
market merchant bank which has invested in more than 400 businesses.
AMERICAN INDUSTRIAL ACQUISITION, Greenwich, CT (1999-2001)
Managing Director.
American Industrial Acquisition is a private equity investment firm founded in
1996 with a portfolio of thirteen companies in USA and Europe with combined
revenue of $200 million.
CARL MARKS & CO., INC., New York, NY www.carlmarks.com (1992-1996)
Corporate Revitalization Consultant.
The Carl Marks Consulting Group LLC, a corporate turnaround consulting firm
which performs business assessment, interim crisis management, revitalization
consulting, restructuring plan development & execution, asset disposal, equity
and debt placements for middle market companies. Concurrent with role of CEO,
Lincoln Can Mfg.
LINCOLN CAN MFG. CORP., Greenwich, CT (1988-1999)
Owner and CEO.
Manufacturer of specialized food tins sold to food service companies nationwide.
HAMBROS BANK plc, London and New York, NY (1986-1987)
Associate, Hambros International Venture Fund.
Venture capital affiliate which made early stage investments in USA and Europe.
Hambros Bank is now the private wealth management arm of Soci|pi|qet|pi|qe
G|pi|qen|pi|qerale.
GEOCAPITAL PARTNERS, New York, NY (1984-1985)
Associate.
Geocapital Partners is a venture capital firm focused on information technology
investments in Europe and North America.
BALL CORP., Boulder, CO (NYSE: BLL) (1982-1984)
Program Administrator, Ball Aerospace & Technologies Division.
HONEYWELL, Oklahoma City, OK (NYSE: HON) (1977-1980)
Sales & Administration.
EDUCATION
Columbia University Graduate School of Business, MBA Finance (1982)
Distinguished Service Award for "Outstanding Service to the School"
University of California, Davis, BA Chemistry (1977)
PROFESSIONAL ASSOCIATIONS
Association for Corporate Growth
National Association of Corporate Directors
[STAFF REPLY LETTER]
February 13, 2006
Response of the Office of Chief Counsel Division of Corporation Finance
Re: FuelCell Energy, Inc. Incoming letter dated December 28, 2005
The submission relates to director nominations.
We note that it is unclear whether the submission is a proposal made under rule
14a-8 or is a proposal to be presented directly at the annual meeting, a matter
we do not address. To the extent that the submission involves a rule 14a-8
issue, there appears to be some basis for your view that FuelCell Energy may
exclude the proposal under rule 14a-8(e)(2) because FuelCell Energy received it
after the deadline for submitting proposals. We note in particular your
representation that FuelCell Energy did not receive the submission until after
this deadline. Accordingly, we will not recommend enforcement action to the
Commission if FuelCell Energy omits the proposal from its proxy materials in
reliance on rule 14a-8(e)(2). In reaching this position, we have not found it
necessary to address the alternative basis upon which FuelCell Energy relies.
Sincerely,
/s/
Geoffrey M. Ossias
Attorney-Adviser
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