FUELCELL ENERGY, INC. (NASDAQ:FCEL) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01.
On October 4, 2019, FuelCell Energy, Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Sales Agreement”) with B. Riley FBR, Inc. (the “Agent”) to create an at the market equity program under which the Company may offer and sell up to 38,000,000 shares of its common stock, par value $0.0001 per share (the “Placement Shares”), from time to time through the Agent.
The Agent is not required to sell any specific number or dollar amount of Placement Shares. Subject to the terms and conditions of the Sales Agreement, each time that the Company wishes to issue and sell Placement Shares, it will notify the Agent and the Agent will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell the Placement Shares, based upon the Company’s instructions. The Company has provided the Agent with customary indemnification rights, and the Agent will be entitled to a commission in an amount equal to 3.0% of the gross proceeds from each sale of Placement Shares by the Agent. The Company will also reimburse the Agent for certain specified expenses in connection with its services under the Sales Agreement, including up to $50,000 for legal expenses.
Sales of the Placement Shares, if any, under the Sales Agreement may be made in transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). The Company has no obligation to sell any of the Placement Shares and may at any time suspend offers under the Sales Agreement. The offering of the Placement Shares to the Sales Agreement will terminate upon the earlier of (a) the sale of all of the Placement Shares or (b) the termination of the Sales Agreement by the Company or the Agent, as provided therein.
This description of the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement, which is attached hereto as Exhibit 10.1 and incorporated by reference herein.
The Placement Shares to be sold under the Sales Agreement, if any, will be issued and sold to the Company’s shelf registration statement on Form S-3 (File No. 333-226792), previously filed with the Securities and Exchange Commission (“SEC”) on August 10, 2018, and declared effective by the SEC on August 21, 2018. A prospectus supplement related to the Company’s at the market equity program has been filed with the SEC. This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any Placement Shares nor shall there be any sale of Placement Shares in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.
The legal opinion of Foley & Lardner LLP relating to the legality of the issuance and sale of the Placement Shares is attached as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| 5.1 | Legal Opinion of Foley & Lardner LLP. |
| 10.1 | At Market Issuance Sales Agreement between FuelCell Energy, Inc. and B. Riley FBR, Inc., dated October 4, 2019. |
| 23.1 | Consent of Foley & Lardner LLP (included in Exhibit 5.1). |
FUELCELL ENERGY INC Exhibit
EX-5.1 2 tv530665_ex5-1.htm EXHIBIT 5.1 Exhibit 5.1 ATTORNEYS AT LAW 111 Huntington Avenue Boston,…
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About FUELCELL ENERGY, INC. (NASDAQ:FCEL)
FuelCell Energy, Inc. is an integrated fuel cell company. The Company designs, manufactures, sells, installs, operates and services stationary fuel cell power plants for distributed power generation. The Company’s segment is fuel cell power plant production and research. The Company’s power plants provide on-site power and utility grid support. The Company’s plants operate in approximately 50 locations on approximately three continents and generate approximately four billion kilowatt hours (kWh) of electricity. The Company’s fuel cell products, Direct FuelCell (DFC) power plants offer power generation for customers, including approximately 2.8 megawatts DFC3000, approximately 1.4 megawatts DFC1500 and approximately 300 kilowatts DFC300 plus derivations of the DFC product for specific applications. The Company offers project development; engineering procurement and construction (EPC) services operations and maintenance, and project finance.
