FUELCELL ENERGY, INC. (NASDAQ:FCEL) Files An 8-K Entry into a Material Definitive AgreementItem 1.01.
On June 13, 2018, FuelCell Energy, Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “SalesAgreement”) with B. Riley FBR, Inc. (“BRFBR”) and Oppenheimer & Co. Inc. (together with BRFBR, the “Agents”) to create anat the marketequity program under which the Company from time to time may offer and sell shares of its common stock, par value $0.0001 per share, having an aggregate offering price of up to $50,000,000 (the “Placement Shares”) throughthe Agents.
Subject to the terms and conditions of the Sales Agreement, each time that the Company wishes to issue and sell the Placement Shares, it will notify an Agent (the “Designated Agent”) and such Designated Agent will use its commercially reasonable efforts to sell the Placement Shares, based upon the Company’s instructions. The Company has provided the Agents with customary indemnification rights, and the Designated Agent will be entitled to a commission in an amount equal to 3.0% of the gross proceeds from each sale of the Placement Shares by such Designated Agent.
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, as provided therein. Each Agent may also terminate the Sales Agreement as to such 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 onForm S-3(File No333-215530),previously filed with the Securities and Exchange Commission (“SEC”) on January 12, 2017, and declared effective by the SEC on February 27, 2017. 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 the Placement Shares nor shall there be any sale of the 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-Kand is incorporated herein by reference.
| Item 9.01. | Financial Statements and Exhibits. |
FUELCELL ENERGY INC ExhibitEX-5.1 2 tv494304_ex5-1.htm EXHIBIT 5.1 Exhibit 5.1 ATTORNEYS AT LAW 111 Huntington Avenue Boston,…To view the full exhibit click here
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.
