false 0000886128 0000886128 2020-12-16
2020-12-16
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): December 16,
2020
FUELCELL ENERGY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware
|
|
1-14204
|
|
06-0853042
|
(State or Other Jurisdiction of
Incorporation)
|
|
(Commission
File Number)
|
|
(IRS Employer
Identification No.)
|
|
|
|
|
3 Great Pasture Road,
Danbury, Connecticut
|
|
06810
|
|
|
(Address of Principal Executive Offices)
|
|
(Zip Code)
|
Registrant’s telephone number, including area code:
(203) 825-6000
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant
under any of the following provisions:
☐
|
Written communications pursuant to
Rule 425 under the Securities Act (17 CFR 230.425)
|
☐
|
Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
☐
|
Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
|
☐
|
Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
|
Securities registered pursuant to Section 12(b) of the
Act:
Title of each class
|
|
Trading Symbol(s)
|
|
Name of each exchange on which registered
|
Common Stock, $0.0001 par value per share
|
|
FCEL
|
|
The Nasdaq Stock Market LLC
(Nasdaq Global Market)
|
Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange
Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
Item 1.02. Termination of a
Material Definitive Agreement.
As previously disclosed, FCE FuelCell Energy Ltd. (“FCE Ltd.”), one
of FuelCell Energy, Inc.’s (the “Company”) indirect subsidiaries,
had 1,000,000 Class A Preferred Shares (the “Series 1
Preferred Shares”) issued and outstanding, all of which were held
by Enbridge, Inc. (“Enbridge”). The Company guaranteed the return
of principal and dividend obligations of FCE Ltd. to Enbridge, as
the holder of the Series 1 Preferred Shares, pursuant to a
Guarantee, dated May 27, 2004, made by the Company in favor of
Enbridge, as amended by the Guarantee Amending Agreement dated
April 1, 2011 and effective as of January 1, 2011 between the
Company and Enbridge (the “Guarantee”). The Chairman of the
Company’s Board of Directors, James H. England, currently serves as
a director on the Enbridge board of directors.
Also as previously disclosed, on January 20, 2020, the Company, FCE
Ltd. and Enbridge entered into a letter agreement (the “January
2020 Letter Agreement”), pursuant to which they agreed to amend the
articles of FCE Ltd. relating to and setting forth the terms of the
Series 1 Preferred Shares to: (i) remove the provisions of the
articles permitting or requiring the issuance of shares of the
Company’s common stock in exchange for the Series 1 Preferred
Shares or as payment of amounts due to the holders of the Series 1
Preferred Shares, (ii) remove certain provisions of the articles
relating to the redemption of the Series 1 Preferred Shares, (iii)
increase the annual dividend rate, commencing on January 1, 2020,
to 15%, (iv) extend the final payment date for all accrued and
unpaid dividends and all return of capital payments (i.e., payments
of the principal redemption price) from December 31, 2020 to
December 31, 2021, (v) clarify when dividend and return of capital
payments are to be made in the future and extend the quarterly
dividend and return of capital payments through December 31, 2021
(which were previously to be paid each quarter through December 31,
2020), (vi) remove certain terms and provisions of the articles
that are no longer applicable, and (vii) make other conforming
changes to the articles. In addition, the parties agreed to amend
the Guarantee as necessary or as the parties may mutually agree, in
either case, in order to be consistent with such amended articles
and to maintain the Company’s guarantee of FCE Ltd.’s obligations
under the Series 1 Preferred Shares. The articles of FCE Ltd. were
amended and filed in accordance with the provisions of the January
2020 Letter Agreement on March 26, 2020. Under the amended
articles, FCE Ltd. continued to be required to make (a) annual
dividend payments of Cdn. $500,000 and (b) annual return of
capital payments of Cdn. $750,000.
On December 16, 2020, the Company and FCE Ltd. delivered a payoff
letter (the “Payoff Letter”) to
Enbridge, which Payoff Letter was executed by Enbridge on December
17, 2020, pursuant to which the Company confirmed its intent to pay
the amounts owed to Enbridge under the terms of the Series 1
Preferred Shares (the “Obligation”) on or before December 31, 2020
in accordance with its obligations under the Guarantee because FCE
Ltd. does not have sufficient cash to pay the Obligation. As of
December 31, 2020, the amount owed to Enbridge under the
Series 1 Preferred Shares totaled Cdn. $27.4 million, which
included Cdn. $4.3 million of principal and Cdn. $23.1 million of
accrued dividends. Under the terms of the Payoff Letter, each of
the parties, on behalf of itself and each of its affiliates and
subsidiaries, agreed that, upon the payoff of the Obligation, each
of the parties, on behalf of itself and each of its affiliates and
subsidiaries, unconditionally released each of the other parties
and their respective affiliates and subsidiaries and their
respective officers, directors, managers, employees, shareholders,
members, agents, attorneys and representatives as well as their
respective successors and assigns from any and all claims,
obligations, rights, causes of action, and liabilities of whatever
kind or nature, whether known or unknown, whether foreseen or
unforeseen, arising on or before the date of the Payoff Letter,
which are based upon, arise under or are related to the Series 1
Preferred Shares, the Guarantee or the January 2020 Letter
Agreement or any documents, agreements, dealings or other matters
connected with any of the foregoing.
On December 18, 2020, the Company
remitted payment totaling Cdn. $27.4 million to Enbridge.
The foregoing payment amount in U.S. dollars totaled approximately
$21.5 million. Concurrent with receipt of the payment from the
Company, Enbridge surrendered its shares in FCE Ltd., and the
Guarantee and the January 2020 Letter Agreement were terminated.
Pursuant to the Payoff Letter, the transaction is deemed to have
occurred on December 31, 2020.
The foregoing description of the Payoff Letter is qualified in its
entirety by reference to the Payoff Letter, a copy of which is
filed as Exhibit 10.1 to this Current Report
Item 9.01.Financial Statements and
Exhibits.
(d) Exhibits:
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly authorized.
|
|
FUELCELL ENERGY, INC.
|
|
|
|
Date: December 21, 2020
|
|
By:
|
|
/s/ Michael S. Bishop
|
|
|
|
|
Michael S. Bishop
|
|
|
|
|
Executive Vice President, Chief Financial Officer and
Treasurer
|