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Item 1.01.
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Entry into a Material Definitive Agreement.
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On September 29, 2020,
FuelCell Energy, Inc. (the “Company”) entered into an underwriting agreement (the “Underwriting Agreement”)
with J.P. Morgan Securities LLC, Barclays Capital Inc. and Canaccord Genuity LLC, as representatives of the several underwriters
named in Schedule 1 thereto (the “Underwriters”), pursuant to which the Company agreed to issue and sell to the Underwriters
43,500,000 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), plus up to
6,525,000 shares of Common Stock pursuant to an option to purchase additional shares (together, the “Shares”), at
a price to the public of $2.10 per share. The Underwriters exercised their option to purchase additional shares in full on September
30, 2020. The offering closed on October 2, 2020. Gross proceeds from the offering of 50,025,000 Shares were approximately $105.05
million. After the closing of the offering, the number of shares of Common Stock outstanding was 289,399,041.
Under the terms of
the Underwriting Agreement, the Company paid underwriting discounts and commissions of $0.126 per share (for a price to the Underwriters
of $1.974 per share), resulting in net proceeds to the Company of approximately $98.7 million before deducting other Company expenses
currently estimated to be approximately $0.5 million.
Under the terms of
the Underwriting Agreement, the Company has agreed to indemnify the Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the “Securities Act”). The Underwriting Agreement contains customary
representations, warranties, covenants, obligations of the parties and termination provisions.
In addition, in connection
with the offering, the Company, its directors and officers, and certain of its stockholders entered into a customary 90-day lock-up
agreement with the Underwriters.
The foregoing description
of the Underwriting Agreement and the lock-up agreement is qualified in its entirety by reference to the Underwriting Agreement
(including the lock-up agreement which is attached as Exhibit A to the Underwriting Agreement), a copy of which is filed as Exhibit 1.1
to this Current Report on Form 8-K and incorporated herein by reference.
The offering was made
pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-226792), the related Registration Statement (File
No. 333-249139) filed pursuant to Rule 462(b) under the Securities Act, and the prospectus supplement, dated September 29, 2020,
and accompanying prospectus, dated August 21, 2018, filed with the Securities and Exchange Commission pursuant to Rule 424(b) of
the Securities Act.
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.