EXHIBIT 5.1
[LETTERHEAD OF ROBINSON & COLE LLP]
October __, 2000
FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, Connecticut 06813
Ladies and Gentlemen:
We have acted as counsel for FuelCell Energy, Inc., a Delaware corporation
(the "Company"), in connection with its Registration Statement on Form S-3 (the
"Registration Statement") filed on November 1, 2000, with the Securities and
Exchange Commission under the Securities Act of 1933, as amended. The
Registration Statement relates to the contemplated issuance and sale by the
Company from time to time of up to $250,000,000 aggregate public offering price
of (i) debt securities, which may be either senior securities (the "Senior
Securities") or subordinated securities (the "Subordinated Securities")
(collectively, the "Debt Securities"), and either of which may be convertible
into or exchangeable for shares of the Company's common stock, $0.0001 par value
per share (the "Common Stock"), or shares of the Company's preferred stock,
$0.01 par value per share (the "Preferred Stock"); (ii) shares of preferred
stock, which may be convertible into shares of Common Stock; and (iii) shares of
Common Stock. The Debt Securities, shares of Preferred Stock and shares of
Common Stock are referred to herein as the "Securities."
The Securities will be sold or delivered from time to time as set forth in
the Registration Statement, amendments thereto, the prospectus contained therein
(the "Prospectus") and supplements to the Prospectus (the "Prospectus
Supplements"). The Senior Securities and the Subordinated Securities will be
issued under indentures (the "Senior Indenture" and the "Subordinated
Indenture," respectively, and collectively, the "Indentures") between the
Company and a trustee (the "Trustee") to be selected by the Company.
In rendering our opinions herein, we have examined or will examine
originals or copies of (i) the Certificate of Incorporation (the "Certificate of
Incorporation") and Bylaws of the Company, (ii) the Senior Indenture to be
entered into by and between the Company and the Trustee, in the form to be
included as an exhibit to the Registration Statement, (iii) the Subordinated
Indenture to be entered into by and between the Company and the Trustee, in the
form to be included as an exhibit to the Registration Statement, and (iv) such
other records, agreements, instruments and documents as we have deemed relevant
or necessary as the basis for the opinions hereinafter expressed. We have
assumed, without investigation, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to
original documents of all documents submitted to us as certified or photostatic
copies and the authenticity of the originals of such copies.
We have also assumed that (i) the Registration Statement and any amendments
thereto (including post-effective amendments) will have become effective; (ii) a
Prospectus Supplement will have been prepared and filed with the Securities and
Exchange Commission describing the Securities offered thereby; (iii) all
Securities will be issued and sold in compliance with applicable federal and
state securities laws and in the manner described in the Registration Statement
and applicable Prospectus Supplement; (iv) the Senior Indenture and Subordinated
Indenture will be duly authorized, executed and delivered by the Company and the
Trustee (which Trustee will be qualified under the Trust Indenture Act of 1939,
as amended), in substantially the forms reviewed by us; (v) a definitive
purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the
Company and the other parties thereto; and (vi) any Securities issuable upon
conversion or exchange of any Security being offered will have been duly
authorized, created and, if appropriate, reserved for issuance upon such
conversion or exchange.
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Based on the foregoing, and subject to the qualifications and limitations
stated herein, it is our opinion that:
1. When the terms of the issuance and sale of the shares of Common Stock
have been duly approved by the Company's Board of Directors in
conformity with the Certificate of Incorporation, and such shares have
been issued and delivered against payment therefor in an amount in
excess of the par value thereof, in accordance with the applicable
definitive purchase, underwriting or similar agreement and as
contemplated in the Registration Statement, and, if issued upon the
conversion or exchange of any Debt Securities or Preferred Stock, when
such shares have been issued and delivered as contemplated by the
terms of the applicable Senior or Subordinated Indenture or
Certificate of Designations, the shares of Common Stock will be duly
authorized, validly issued, fully paid and nonassessable.
2. Upon the fixing of the designations, relative rights, preferences and
limitations of any series of Preferred Stock by the Company's Board of
Directors and the proper and valid filing with the Office of the
Secretary of State of the State of Delaware of a Certificate of
Designations or a certificate of amendment to the Certificate of
Incorporation setting forth the powers, designations, preferences and
relative, participating, optional or other rights, if any, or the
qualifications, limitations or restrictions thereof, if any, with
respect to such series of Preferred Stock, all in accordance with the
General Corporation Law of the State of Delaware and in conformity
with the Certificate of Incorporation and upon the approval by the
Company's Board of Directors of the specific terms of the issuance,
all necessary corporate action on the part of the Company will have
been taken to authorize the issuance and sale of such series of
Preferred Stock proposed to be sold by the Company, and when such
shares of Preferred Stock are issued and delivered against payment
therefor in an amount in excess of the par value thereof, in
accordance with the applicable definitive purchase, underwriting or
similar agreement and as contemplated in the Registration Statement,
and, if issued upon the conversion or exchange of any Debt Securities,
issued and delivered as contemplated by the terms of the applicable
Senior or Subordinated Indenture, such shares of Preferred Stock will
be duly authorized, validly issued, fully paid and nonassessable.
3. When (i) the terms of the Senior Securities and their issue and sale
have been duly established in conformity with the Senior Indenture so
as not to violate any applicable law, agreement or instrument then
binding on the Company or any requirement or restriction imposed on
the Company by any court or governmental body having jurisdiction over
the Company, and (ii) the Senior Securities have been duly executed,
authenticated, issued and delivered as contemplated in the
Registration Statement and in accordance with the terms of the Senior
Indenture and the applicable definitive purchase, underwriting or
similar agreement upon payment of the consideration provided for
therein, the Senior Securities will be legally issued and will
constitute valid and binding obligations of the Company, subject to
bankruptcy, insolvency, reorganization, fraudulent transfer,
moratorium or other laws now or hereafter in effect affecting
creditors' rights generally, and subject to general principles of
equity (including, without limitation, standards of materiality, good
faith, fair dealing and reasonableness), whether considered in a
proceeding in equity or at law.
4. When (i) the terms of the Subordinated Securities and their issue and
sale have been duly established in conformity with the Subordinated
Indenture so as not to violate any applicable law, agreement or
instrument then binding on the Company or any requirement or
restriction imposed on the Company by any court or governmental body
having jurisdiction over the Company, and (ii) the Subordinated
Securities have been duly executed, authenticated, issued and
delivered as contemplated in the Registration Statement and in
accordance with the terms of the Subordinated Indenture and the
applicable definitive purchase, underwriting or similar agreement upon
payment of the consideration provided for therein, the Subordinated
Securities will be legally issued and will constitute valid and
binding obligations of the Company, subject to bankruptcy, insolvency,
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reorganization, fraudulent transfer, moratorium or other laws now or
hereafter in effect affecting creditors' rights generally, and subject
to general principles of equity (including, without limitation,
standards of materiality, good faith, fair dealing and
reasonableness), whether considered in a proceeding in equity or at
law.
We are qualified to practice law only in the State of Connecticut. We are
not qualified and do not express any opinion herein as to the laws of any other
jurisdiction, except the federal laws of the United States and, to the extent
required by the foregoing opinion, the Delaware General Corporation Law.
Otherwise, to the extent this opinion deals with matters governed by or relating
to the laws of any state other than Connecticut, we have assumed that such laws
are identical to the internal substantive laws of the State of Connecticut.
We express no opinion as to the legality, validity, binding effect or
enforceability of any provision of the Debt Securities or the Indentures
providing for payments thereunder in a currency other than currency of the
United States of America to the extent that a court of competent jurisdiction
will under applicable law convert any judgment rendered in such other currency
into currency of the United States of America or to the extent that payment in a
currency other than currency of the United States of America is contrary to
applicable law.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement and to the use
of our name whenever it appears in the Registration Statement, including the
Prospectus and any Prospectus Supplement constituting a part thereof, as
originally filed or as subsequently amended. In giving the consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act of 1933 or the rules and
regulations of the Securities and Exchange Commission thereunder.
Very truly yours,
ROBINSON & COLE LLP
By /s/ Richard A. Krantz
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Richard A. Krantz
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