Item 1.01.Entry into a
Material Definitive Agreement.
Amendment No. 2 to Joint Development
Agreement between FuelCell Energy, Inc. and ExxonMobil Technology
and Engineering Company (f/k/a ExxonMobil Research and Engineering
Company)
On April 29, 2022, FuelCell Energy, Inc. (the “Company”) and
ExxonMobil Technology and Engineering Company (f/k/a ExxonMobil
Research and Engineering Company) (“EMTEC”) entered into Amendment
No. 2 to the Joint Development Agreement between the Company and
EMTEC (“Amendment No. 2”), effective as of April 30, 2022.
The Joint Development Agreement between the Company and EMTEC (the
“Original Agreement”) was executed on November 5, 2019, was
effective as of October 31, 2019, and had a term of two years from
the effective date, ending on October 31, 2021. Under the Original
Agreement, the Company has engaged in exclusive research and
development efforts with EMTEC to evaluate and develop new and/or
improved carbonate fuel cells to reduce carbon dioxide emissions
from industrial and power sources in exchange for (i)
payment by EMTEC of certain fees and costs (including research
costs of up to $45,000,000) as well as certain milestone-based
payments, and (ii) certain licenses, in each case as described in
the Original Agreement. The terms of the Original Agreement
are described more fully in the Current Report on Form 8-K
filed by the Company on November 6, 2019.
In Amendment No. 1 to the Joint Development Agreement (“Amendment
No. 1”), which was executed on October 29, 2021 and effective as of
October 31, 2021, the Company and EMTEC agreed, among other things,
to extend the term for an additional six months, ending on April
30, 2022. Amendment No. 1 allowed for the continuation of
research intended to enable incorporation of design improvements to
Company fuel cell design in order to support a decision to use the
improvements in a future demonstration of the technology for
capturing carbon at ExxonMobil’s Rotterdam refinery in the
Netherlands (such demonstration, the “Rotterdam Project”) and
provided additional time to achieve Milestone 1, as defined in the
Original Agreement. The terms of Amendment No. 1 are described more
fully in the Current Report on Form 8-K filed by the Company on
November 2, 2021.
In Amendment No. 2, the Company and EMTEC agreed to further extend
the term such that it will end on December 31, 2022 (unless
terminated earlier) and to increase the maximum amount of research
costs to be reimbursed by EMTEC from $45,000,000 to $50,000,000.
Amendment No. 2 allows for the continuation of research that would
enable the parties to (i) gain an improved understanding of the
fuel cell operating envelope for various carbon capture
applications; and (ii) complete data collection to support the
project gate decision to use the developed technology in a Company
fuel cell module demonstration for capturing carbon at ExxonMobil’s
Rotterdam facility. In Amendment No. 2, the Company and EMTEC also
agreed to conduct a joint market study, with a target completion
date on or before October 31, 2022, to (a) define application
opportunities, commercialization strategies, and development
requirements, (b) identify partners for potential
pilot/demonstration projects and (c) assess fuel cell/stack/module
manufacturing scale-up and cost reduction.
The foregoing summary of the terms of Amendment No. 2 is qualified
in its entirety by reference to the full text of Amendment No. 2, a
copy of which is attached as Exhibit 10.1 to this Current Report on
Form 8-K and incorporated herein by reference.
Other Material Relationships with
ExxonMobil Technology and Engineering Company
In addition to the Original Agreement
(as amended by Amendment No. 1 and Amendment No. 2), in June 2019,
the Company and EMTEC
entered into a license agreement to
facilitate the further development of the Company’s SureSource
CaptureTM product.
Pursuant to this license agreement, the Company granted EMTEC and
its affiliates a non-exclusive, worldwide, fully-paid, perpetual,
irrevocable, non-transferable license and right to use the
Company’s patents filed on or before April 30, 2021, and any data,
know-how, improvements, equipment designs, methods, processes and
the like provided directly by the Company or its affiliates
to EMTEC or its affiliates under any agreement or
otherwise, on or before April 30, 2021, to the extent it is useful
to research, develop and commercially exploit carbonate fuel cells
in applications in which the fuel cells concentrate carbon dioxide
from industrial and power sources and for any other purpose
attendant thereto or associated therewith.
This license agreement is being described only for the purpose of
describing the material relationships between the Company and EMTEC
and is not impacted by Amendment No. 2.