FCEL FuelCell Energy Inc

On June 16, 2020, FuelCell Energy, Inc. (the “Company”) entered into an Open Market Sale Agreement^SM (the “Sales Agreement”) with Jefferies LLC (“Jefferies”), with respect to an at the market offering program under which the Company may offer and sell up to $75 million of shares of the Company’s common stock, par value $0.0001 per share (the “Shares”), from time to time through Jefferies acting as agent. The Shares to be sold under the Sales Agreement, if any, will be issued and sold pursuant 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 offering program with Jefferies was filed with the SEC on June 16, 2020.

Sales of the Shares, if any, pursuant to the Sales Agreement and under the prospectus supplement and accompanying prospectus may be made by any method that is deemed to be an “at the market offering” as defined in Rule 415(a)(4) under the Securities Act of 1933, as amended (the “Securities Act”). Each time the Company wishes to issue and sell Shares under the Sales Agreement, it will notify Jefferies of the number of Shares to be issued, the dates on which such sales are anticipated to be made, any limitation on the number of Shares to be sold in any one day and any minimum price below which sales may not be made. Once the Company has so instructed Jefferies, unless Jefferies declines to accept the terms of such notice, Jefferies has agreed to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Shares up to the amount specified on such terms. The obligations of Jefferies under the Sales Agreement to sell Shares are subject to a number of conditions that the Company must meet.

The Company will pay Jefferies a commission equal to 3.0% of the aggregate gross proceeds it receives from each sale of Shares under the Sales Agreement. Because there is no minimum offering amount required as a condition to close the offering, the actual total public offering amount, commissions and proceeds to the Company, if any, are not determinable at this time. In addition, the Company has agreed to reimburse Jefferies for the fees and disbursements of its counsel, payable upon execution of the Sales Agreement, in an amount not to exceed $50,000, in addition to certain ongoing disbursements of its legal counsel. The Company has agreed to indemnify Jefferies against certain civil liabilities, including liabilities under the Securities Act. The Company has also agreed to contribute to payments Jefferies may be required to make in respect of such liabilities.

The Company has no obligation to sell any of the Shares under the Sales Agreement, and the Company or Jefferies may suspend the offering of the Shares under the Sales Agreement upon proper notice to the other party. The offering of the Shares pursuant to the Sales Agreement will terminate upon the earlier of (i) the sale of the maximum number of Shares to be sold pursuant to the Sales Agreement and (ii) the termination of the Sales Agreement as permitted therein. The Company and Jefferies may each terminate the Sales Agreement at any time upon ten trading days’ prior notice.

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 legal opinion of Foley & Lardner LLP relating to the legality of the issuance and sale of the Shares is attached as Exhibit 5.1 to this Current Report on Form 8-K.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any Shares, nor shall there be any offer, solicitation or sale of 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.