UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the
Securities Exchange Act of 1934
(Amendment No. 1)
|
Bloom Energy
Corporation |
| (Name of Issuer) |
|
Class A Common Stock, par value
$0.0001 per share |
| (Title of Class of Securities) |
|
Seongju Lim, SK ecoplant Co, Ltd.
19 Yulgok-ro 2-gil, Jongno-gu, Seoul 03149,
+82-2-3700-9201 |
| (Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications) |
| |
|
December 6, 2022 |
| (Date of Event which Requires Filing of this
Statement) |
If the filing person has previously filed a statement on Schedule
13G to report the acquisition that is the subject of this Schedule
13D/A, and is filing this schedule because of 240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following
box ☐.
Note: Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits.
See 240.13d-7(b) for other parties to whom copies are to be
sent.
| * |
The remainder of this cover page
shall be filled out for a reporting person’s initial filing on this
form with respect to the subject class of securities, and for any
subsequent amendment containing information which would alter
disclosures provided in a prior cover page. |
The information required on the remainder of this cover page shall
not be deemed to be “filed” for the purpose of Section 18 of the
Securities Exchange Act of 1934 (“Act”) or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
SCHEDULE 13D/A
|
1 |
NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES
ONLY) |
|
SK ecoplant Co., Ltd. |
|
2 |
CHECK THE APPROPRIATE BOX IF A MEMBER
OF A GROUP |
|
(a) ☐
(b) ☒
|
|
3 |
SEC USE ONLY |
|
|
|
4 |
SOURCE OF FUNDS (See
Instructions) |
|
WC, BK |
|
5 |
CHECK IF DISCLOSURE OF LEGAL
PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) |
|
☒ |
|
6 |
CITIZENSHIP OR PLACE OF
ORGANIZATION |
|
The Republic of Korea |
NUMBER OF
SHARES
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH |
7 |
SOLE VOTING POWER |
|
23,491,701
shares1 |
|
8 |
SHARED VOTING POWER |
|
0 |
|
9 |
SOLE DISPOSITIVE POWER |
|
23,491,701 shares |
|
10 |
SHARED DISPOSITIVE POWER |
|
0 |
|
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON |
|
23,491,701 |
|
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN
ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) |
|
☐ |
|
13 |
PERCENT OF CLASS REPRESENTED BY
AMOUNT IN ROW (11) |
|
11.6% |
|
14 |
TYPE OF REPORTING PERSON (See
Instructions) |
|
CO |
| 1 |
SK’s beneficial ownership of the
Issuer’s Class A Common Stock consists of (i) 10,000,000 shares of
Class A Common Stock issued upon the conversion of 10,000,000
shares of the Issuer’s Series A Redeemable Convertible Preferred
Stock on December 9, 2022; and (ii) 13,491,701 shares of Class
A Common Stock to be acquired by SK pursuant to the Securities
Purchase Agreement dated October 23, 2021 between the Issuer and
SK, as further summarized below. All defined terms in this footnote
have the meanings set forth in this Schedule 13D/A. |
| 2 |
As of December 9, 2022, based
on information reported by the Issuer in its Quarterly Report on
Form 10-Q, filed on November 3, 2022, and based on an
assumed combined total of 202,870,627 shares of the Issuer’s Class
A Common Stock outstanding as follows: (i) 179,378,926 shares of
the Issuer’s Class A Common Stock outstanding; (ii) 10,000,000
shares of Class A Common Stock of Issuer issued to SK upon
conversion of the Series A Redeemable Convertible Preferred Stock
held by SK on December 9, 2022; and (iii) 13,491,701 shares of
Class A Common Stock to be acquired by SK pursuant to the
Securities Purchase Agreement dated October 23, 2021 between
the Issuer and SK, SK’s beneficial ownership of voting stock of the
Issuer is 6.5%. |
Explanatory Note
This Amendment No. 1
supplements and amends the Schedule 13D filed on
October 4, 2022 and is made pursuant to Rule 13d-1(a) of
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”). On October 23, 2021, SK ecoplant Co., Ltd.
(“SK” or the “Reporting Person”) entered into that
certain Securities Purchase Agreement (the “SPA”), by and
between SK and Bloom Energy Corporation, a Delaware corporation
(the “Issuer”), filed as Exhibit A, under which SK
acquired 10,000,000 shares of Series A Redeemable Convertible
Preferred Stock, par value $0.0001 per share (the “RCPS”) of
the Issuer, convertible by SK into shares of the Issuer’s
Class A Common Stock, and an option for SK to purchase
13,491,701 shares of the Issuer’s Class A Common Stock. On
August 10, 2022, SK delivered to the Issuer a notice to purchase in
the future 13,491,701 shares of Class A Common Stock of the
Issuer pursuant to the SPA, with the closing expected to be the
latter of (i) the parties receiving clearance from the U.S.
Department of Justice and the Federal Trade Commission of the
purchase under the Hart-Scott-Rodino Antitrust Improvements Act of
1974, as amended, and (ii) December 6, 2022, pursuant to
the Side Letter dated August 16, 2022, between SK and the
Company (the “Side Letter”), filed as Exhibit B. On
December 6, 2022, SK and the Issuer entered into an amendment
of the Side Letter (the “Side Letter Amendment”), filed as
Exhibit C, whereby SK and the Issuer mutually agreed to delay the Second
Closing Date for the purchase of the 13,491,701 shares of
Class A Common Stock of the Issuer until March 31, 2023,
unless an earlier date is mutually agreed upon and assuming the
satisfaction of applicable regulatory clearance. On
December 9, 2022, each share of the RCPS was converted into
10,000,000 shares of Class A Common
Stock.
|
Item 3. |
Source and Amount of Funds or Other
Considerations |
Item 3 of
Schedule 13D is hereby amended and supplemented as
follows:
The information set forth in
Item 6 of this Schedule 13D/A is hereby incorporated herein by
reference.
On December 29, 2021 (the “First Closing Date”),
pursuant to the SPA, filed as Exhibit A, SK purchased from the
Issuer, 10,000,000 shares of the Issuer’s RCPS at a purchase price
of $25.50 per share, for an aggregate purchase price of
$255,000,000. SK utilized its own funds and proceeds from
financing facilities (as
discussed in Item 6 herein) to purchase the RCPS. The
RCPS was convertible at any time, at the option of SK, into such
number of shares of Class A Common Stock determined by dividing the
liquidation preference of the RCPS, which was equal to the original
purchase price of $25.50 per share multiplied by the number of RCPS
to be converted, by the conversion price determined at the time of
conversion. Each share of the RCPS was converted into
10,000,000 shares of Class A Common Stock on
December 9, 2022.
On August 10, 2022, SK
delivered to the Issuer a notice to purchase in the future
13,491,701 shares of Class A Common Stock of the Issuer
pursuant to the SPA. The
closing of this purchase (the “Second Closing Date”) was
expected to be the latter of the parties receiving clearance from
the U.S. Department of Justice and the Federal Trade Commission of
the purchase under the Hart-Scott-Rodino Antitrust Improvements Act
of 1974, as amended (which is October 7, 2022), and December 6,
2022, pursuant to the Side Letter, which is filed as Exhibit B. On
December 6, 2022, SK and the Issuer entered into the Side
Letter Amendment, which is filed as Exhibit C, pursuant to
which SK and the Issuer mutually agreed to delay the Second Closing
Date for the purchase of the 13,491,701 shares of Class A
Common Stock of the Issuer until March 31, 2023, unless an
earlier date is mutually agreed upon and assuming the satisfaction
of applicable regulatory clearance. The Side Letter Amendment adds
that the Issuer would not be required to have a registration
statement declared effective or to file a prospectus supplement
that registers the resale of the securities held by the Reporting
Person until six months after the earlier of March 31, 2023 or
a later closing date resulting from the satisfaction of applicable
regulatory clearance not being obtained by March 31,
2023.
SK currently expects to
purchase the shares of Class A Common Stock on the Second
Closing Date through a special purpose entity formed in the U.S.
(the “SPV”), as contemplated by the SPA and the Investor Agreement.
At this time, SK is currently the sole owner of the SPV, but SK
continues to consider all possibilities regarding the structure
through which it will purchase such shares of Class A Common
Stock, if any, and the ownership of the SPV, including whether
additional third parties may become part-owners of the SPV with
SK.
As of December 9, 2022, based on information reported by the
Issuer in its Quarterly Report on Form 10-Q, filed on November 3,
2022 and after giving effect to (a) SK’s ownership of Class A
Common Stock including the conversion of the RCPS and (b) SK’s
purchase of Class A Common Stock on the Second Closing Date,
SK beneficially owns approximately (x) 11.6% of the outstanding
Class A Common Stock of the Issuer and (y) 6.5% of the outstanding
voting stock of the Issuer, including for purposes of this
calculation the Issuer’s outstanding Class B Common Stock.
The descriptions of the SPA,
Side Letter and Side Letter Amendment contained in this Item 3 are
not intended to be complete and are qualified in their entirety by
reference to such agreement, the full text of which are filed as
Exhibit A, Exhibit B, and Exhibit C
hereto.
|
Item 4. |
Purpose of Transaction |
Item 4 of
Schedule 13D is hereby amended and supplemented as
follows:
The information set forth in Item 6 of this Schedule 13D/A is
hereby incorporated herein by reference.
The Reporting Person acquired the securities reported herein
pursuant to the SPA for investment purposes. The purchase and
conversion of the RCPS form part of a mutually beneficial and
strategic business relationship between the Issuer and the
Reporting Person. In addition to the SPA, the Reporting Person and
the Issuer have entered into an Investor Agreement dated as of
December 29, 2021 (the “Investor Agreement”) and other
commercial agreements which have been summarized in Item 6
below.
In accordance with the terms of the SPA, filed as Exhibit A,
SK has the right to purchase additional shares of Class A Common
Stock of the Issuer on or prior to November 30, 2023 (the
“Second Tranche Shares”). The maximum number of shares of
Class A Common Stock which SK may purchase shall be the lesser of
(i) 11,000,000 shares plus the number of shares that SK must hold
in order to become the largest shareholder of the Issuer by no less
than one percent (1%) of the Issuer’s issued and outstanding
capital stock as of the Second Closing Date and (ii) fifteen
percent (15%) of the Issuer’s issued and outstanding capital stock
as of the Second Closing Date. Additionally, under the terms of the
SPA, the Issuer is obligated to file a registration statement to
register the resale of the securities issuable to SK and to use
best efforts to maintain the effectiveness of such registration
statement until all of such securities have been sold. The Side Letter Amendment adds that the
Issuer would not be required to have a registration statement
declared effective or to file a prospectus supplement that
registers the resale of the securities held by the Reporting Person
until six months after the earlier of March 31, 2023 or a
later closing date resulting from the satisfaction of applicable
regulatory clearance not being obtained by March 31,
2023.
On August 10, 2022, SK
delivered to the Issuer a notice to purchase in the future
13,491,701 shares of Class A Common Stock of the Issuer
pursuant to the SPA. The
Second Closing Date was expected to be the later of the parties
receiving clearance from the U.S. Department of Justice and the
Federal Trade Commission of the purchase under the
Hart-Scott-Rodino Antitrust Improvements Act of 1974, as amended,
and December 6, 2022, pursuant to the Side Letter, which is filed
as Exhibit B.
On December 6, 2022, SK
and the Issuer entered into the Side Letter Amendment, which is
filed as Exhibit C, pursuant to which SK and the Issuer
mutually agreed to delay the Second Closing Date for the purchase
of the 13,491,701 shares of Class A Common Stock of the
Issuer until March 31, 2023, unless an earlier date is
mutually agreed upon and assuming the satisfaction of applicable
regulatory clearance.
The descriptions of the SPA,
the Side Letter and the Side Letter Amendment contained in this
Item 4 are not intended to be complete and are qualified in their
entirety by reference to such agreements, the full text of which
are filed as Exhibit A, Exhibit B and Exhibit C
hereto.
The Reporting Person will
continuously review its investment in Issuer, including
evaluations of the Issuer’s business, strategies, prospects,
management, governance, operations, performance, financial matters,
capital structure, prospects,
strategic and other transactions, as well as alternative investment
opportunities, changes in law and/or regulations, general industry
or economic conditions and all other factors that may be deemed
relevant in determining whether additional securities of the Issuer
will be acquired by the Reporting Person or whether the Reporting
Person will dispose of any securities of the Issuer. Depending on
such and other factors, at any time and subject to the terms of the
Investor Agreement, the Reporting Person may acquire additional
securities of the Issuer (in addition to (i) the shares of Class A
Common Stock from the conversion of the RCPS and (ii) the Second
Tranche Shares), or, at any time, some or all of the shares of
Class A Common Stock or other securities beneficially owned by the
Reporting Person may be sold in the open market, in privately
negotiated transactions or otherwise.
Investor Agreement
The Investor Agreement sets forth certain rights and restrictions
in relation to the Reporting Person’s investment in the Issuer
which are summarized below.
Board Nominee
Effective as of the Second
Closing Date until the Reporting Person and its subsidiaries
beneficially own less than five percent (5%) of the then issued and
outstanding shares of common stock of the Issuer, SK has the right
to designate one nominee to be nominated by the Issuer at each
election of directors, subject to customary conditions such as,
that the designee must meet all qualifications required of the
Issuer’s directors. Until the termination of SK’s right to nominate
a board nominee, the Issuer has agreed not to decrease the size of
its Board of Directors if such decrease will necessitate the
resignation of SK’s nominee to the board.
Pre-emptive Right
At any time after the Second
Closing Date, if the Issuer proposes to issue new shares of common
stock or common stock equivalents, SK has the right, to purchase up
to such number of such new securities as required to maintain SK’s
fully-diluted ownership as at immediately prior to the issuance of
the new securities (the “Pre-emptive Right Shares”). The
terms and conditions of the Pre-emptive Right Shares shall be the
same as the terms and conditions granted to other purchasers of the
new securities. If the Pre-emptive Right Shares are not registered,
the Issuer shall, within 90 days of issuance of the securities to
SK, file a registration statement covering the resale of the
Pre-emptive Right Shares.
Standstill
Commencing as of the First Closing Date until the later of (i) the
second anniversary of the Second Closing Date, (ii) the date on
which SK ceases to have the right to designate a director to the
Board of Directors of the Issuer, and (iii) the date on which SK
and its subsidiaries beneficially own less than five percent (5%)
of the then issued and outstanding shares of common stock of Issuer
(such period, the “Standstill Term”), SK is prohibited,
unless approved or waived by the Issuer, from, among other things,
making a tender, exchange or other public offer to acquire the
Issuer’s Common Stock or Common Stock equivalents; calling a
meeting of the stockholders of Issuer or proposing any matter to be
voted upon by stockholders of Issuer; proposing any person
(excluding the person nominated by SK pursuant to the board
nomination right) for election to the Board of Directors of the
Issuer whose nomination has not been approved by the Board of
Directors of Issuer; and proposing any merger, business
combination, purchase of Issuer’s assets or any similar transaction
that would result in a change in control without the written
consent of the Board of Directors of Issuer.
Lock-Up
The Investor Agreement further provides for the securities of the
Issuer held by the Reporting Person to be locked-up for a period of
two years following the Second Closing Date, subject to specified
exceptions.
Voting Agreement
Subject to specified
exceptions, from the Second Closing Date until the termination of
the Standstill Term, SK has agreed to, among other things, be
present in person or by proxy at all meetings of stockholders of
Issuer, vote all voting securities held by it or execute a written
consent in accordance with the recommendations of a majority of the
Issuer’s Board of Directors and as and when requested by the
Issuer, execute an irrevocable proxy appointing the Issuer or its
designees as proxy to vote or give consent with respect to all the
voting securities held by SK.
The description of the
Investor Agreement contained in this Item 4 is not intended to be
complete and is qualified in its entirety by reference to such
agreement, the full text of which is filed as Exhibit D
hereto.
Except as described herein,
the Reporting Person does not have any current plans or proposals
which relate to or would result in any of the actions described in
Items 4(a)-(j) of Schedule 13D/A.
|
Item 5. |
Interest in Securities of the
Issuer |
Item 5 of
Schedule 13D is hereby amended and supplemented as
follows:
(a)-(b) The aggregate number and percentage of the Class A Common
Stock beneficially owned by SK and the number of shares as to which
there is sole power to vote or to direct the vote, shared power to
vote or to direct the vote, sole power to dispose or to direct the
disposition, or shared power to dispose or to direct the
disposition are set forth on rows 7 through 11 and row 13 of the
cover pages of this Schedule 13D/A and are hereby incorporated
herein by reference. Calculations of the percentage of the shares
of Class A Common Stock beneficially owned are based on 202,657,249
shares of Class A Common Stock of Issuer outstanding as of
November 1, 2022, based on information reported by the Issuer
in its Quarterly Report on Form 10-Q, filed on November 3, 2022,
and include 10,000,000 shares of RCPS converted into
10,000,000 shares of Class A Common Stock on December 9,
2022.
On August 10, 2022, SK
delivered to the Issuer a notice to purchase in the future
13,491,701 shares of Class A Common Stock of the Issuer
pursuant to the SPA. The
Second Closing Date was expected to be the later of the parties
receiving clearance from the U.S. Department of Justice and the
Federal Trade Commission of the purchase under the
Hart-Scott-Rodino Antitrust Improvements Act of 1974, as amended
(which is October 7, 2022), and December 6, 2022, pursuant to the
Side Letter dated August 16, 2022 between SK and the Company, which
is filed as Exhibit B.
On December 6, 2022, SK
and the Issuer entered into the Side Letter Amendment, which is
filed as Exhibit C, pursuant to which SK and the Issuer
mutually agreed to delay the Second Closing Date for the purchase
of the 13,491,701 shares of Class A Common Stock of the
Issuer until March 31, 2023, unless an earlier date is
mutually agreed upon and assuming the satisfaction of applicable
regulatory clearance. The Side Letter Amendment adds that the
Issuer would not be required to have a registration statement
declared effective or to file a prospectus supplement that
registers the resale of the securities held by the Reporting Person
until six months after the earlier of March 31, 2023 or a
later closing date resulting from the satisfaction of applicable
regulatory clearance not being obtained by March 31,
2023.
As of December 9, 2022, based on information reported by the
Issuer in its Quarterly Report on Form 10-Q, filed on November 3,
2022 and after giving effect to (a) SK’s ownership of Class A
Common Stock including the conversion of the RCPS and (b) SK’s
purchase of Class A Common Stock on the Second Closing Date,
SK beneficially owns approximately (x) 11.6% of the outstanding
Class A Common Stock of the Issuer and (y) 6.5% of the outstanding
voting stock of the Issuer, including for purposes of this
calculation the Issuer’s outstanding Class B Common Stock.
(c) Except as set forth in this Schedule 13D/A, SK has not effected
any transactions in the Class A Common Stock in the past 60
days.
(d) Except as described in this Schedule 13D/A, no other person is
known by SK to have the right to receive or the power to direct the
receipt of dividends from, or the proceeds from the sale of, the
common stock beneficially owned by SK.
(e) Not applicable.
|
Item 6. |
Contracts, Arrangements,
Understandings or Relationships with Respect to Securities of the
Issuer |
Item 6 of
Schedule 13D is hereby amended and supplemented as
follows:
The information set forth in
Items 3 and 4 of this Schedule 13D/A is hereby incorporated by
reference in its entirety into this Item 6.
Joint Venture Agreement
On September 24, 2019, SK entered into a Joint Venture Agreement
with the Issuer, which was subsequently amended on October 23, 2021
(as amended, the “JV Agreement”). Pursuant to the terms of
the JV Agreement, SK and the Issuer agreed to establish a joint venture company
in Korea to supply, assemble and manufacture the Issuer’s energy
servers and ancillary products for the Korean market. The name of
the joint venture company is Bloom SK Fuel Cell, LLC (the “JV
Company”) and it is majority-owned and controlled by the
Issuer. The JV Agreement contemplates the execution by the parties
of additional commercial agreements, including an amendment to the
Preferred Distributor Agreement (discussed below); a Bloom Energy
License Agreement pursuant to which the Issuer agreed to grant a
license to the JV Company as necessary for the JV Company’s
business; and a Trademark License Agreement pursuant to which each
of SK and the Issuer agreed to grant the JV Company the right to
use certain brand names and trademarks for the business of the JV
Company. The JV Agreement contains terms relating to additional
capital contribution, management of the JV Company and liquidation,
termination, among others.
The description of the JV Agreement
contained in this Item 6 is not intended to be complete and is
qualified in its entirety by reference to such agreements, the full
texts of which are filed as Exhibit E and Exhibit F
hereto.
Amended and Restated Preferred Distributor Agreement
On November 14, 2018, SK and the Issuer entered into a Preferred
Distributor Agreement, which they amended and restated as of
October 23, 2021 (as amended and restated, the “PDA”). Bloom
SK Fuel Cell, LLC, the JV Company formed by SK and the Issuer,
became a party to the restated PDA as of October 23, 2021. Pursuant
to the terms of the PDA, SK committed to purchase, on a take or pay
basis, specified volumes of the Issuer’s energy servers until the
end of 2024. The PDA also sets forth the basis for determining the
prices at which the Issuer’s energy servers and related components
will be sold to SK. The PDA contains other commercial terms
relating to the agreement between the parties, such as intellectual
property, liability for liquidated damages, confidentiality and
indemnification.
The description of the PDA
contained in this Item 6 is not intended to be complete and is
qualified in its entirety by reference to such agreement, the full
text of which is filed as Exhibit G hereto.
Commercial Collaboration Agreement
On October 23, 2021, SK and the Issuer entered into a Commercial
Collaboration Agreement (the “CCA”) with the intent to
collaborate with each other in pursuing certain business
opportunities. Among other things, the parties agreed to establish
and operate two hydrogen innovation centers; one in the United
States and one in the Republic of Korea, and to grant SK certain
rights in connection with the sale and distribution of certain
products specified in the CCA.
The description of the CCA
contained in this Item 6 is not intended to be complete and is
qualified in its entirety by reference to such agreement, the full
text of which is filed as Exhibit H hereto.
Loan Agreements and Insurance Policy
On December 12, 2021, SK, as
borrower, and BNP Paribas Hong Kong Branch (“BNP Paribas”),
as lender, mandated lead arranger and book runner, entered into a
K-Sure Overseas Investment Insurance (Investment Financing)
Facility (the “BNP Paribas Facility”), in connection with
SK’s acquisition of the RCPS. SK borrowed $95.0 million to finance
the purchase of this stock. The loan is for a term of three years,
is unsecured and bears interest at SOFR plus 0.65%, as customarily
determined. The BNP Paribas Facility contains customary prepayment
provisions, representations and warranties, conditions precedent
(including regarding compliance with the insurance policy
summarized below), events of default (including a cross-default
provision) and remedies and other provisions. Under the BNP Paribas
Facility, SK is required to pay the insurance premiums under the
insurance policy described below. The BNP Paribas Facility is
governed by English law.
In connection with the entry into the BNP Paribas Facility, SK, BNP
Paribas and the Korea Trade Insurance Corporation (“K-SURE”)
entered into as of December 21, 2021 the Overseas Investment
Insurance (Investment Financing) Policy that provides BNP Paribas,
as the lender under the BNP Paribas Facility and as the beneficiary
of the insurance policy, insurance if SK’s investment in the RCPS
becomes impaired or there are payment problems with SK’s investment
in the Issuer, such as due to expropriation, war and force majeure
risks, among other things. The insurance policy is for
approximately $97 million. The term of the insurance is from
December 23, 2021 to December 23, 2024. Under the insurance
policy, BNP Paribas pays insurance premiums, though SK is obligated
to make these payments under the BNP Paribas Facility. The
insurance policy contains conditions under which the beneficiary is
covered, indemnification provisions, payment and reimbursement
terms. The Insurance Policy is governed by Korean law.
In November 2021, SK and The Export-Import Bank of Korea
(“KEXIM”) entered into a Loan (Credit) Transaction Agreement
(the “Kexim Facility”) for long-term foreign currency loans
for overseas investment. SK borrowed $95.0 million for the purpose
of financing SK’s investment in the Issuer. The loan is for a term
of three years and bears a variable interest rate at base rate plus
1.5% as customarily determined. The loan has a commitment fee rate
of 0.5% per annum, and an early repayment fee rate of 1.5% of any
early repayment amount. The Kexim Facility contains customary
prepayment provisions, representations and warranties, conditions
precedent, events of default and remedies and other provisions. The
Kexim Facility is governed by Korean law.
The descriptions of the BNP
Paribas Facility, K-SURE policy and Kexim Facility contained in
this Item 6 are not intended to be complete and is qualified in
their entirety by reference to such agreements, the full text of
which are filed as Exhibit I, Exhibit J, and
Exhibit K hereto.
|
Item 7. |
Material to Be Filed as
Exhibits |
|
Exhibit No. |
|
Description |
| A |
|
Securities Purchase Agreement, dated as of
October 23, 2021, by and between Bloom Energy Corporation and SK
ecoplant Co., Ltd. (filed herewith). |
| B |
|
Side
Letter, dated August 16, 2022 by and between Bloom Energy
Corporation and SK ecoplant Co., Ltd. (filed
herewith). |
| C |
|
Amendment
to Side Letter, dated December 6, 2022, by and between Bloom
Energy Corporation and SK ecoplant Co., Ltd. (filed
herewith) |
| D |
|
Investor
Agreement, dated as of December 29, 2021, by and between Bloom
Energy Corporation and SK ecoplant Co., Ltd. (filed
herewith). |
| E |
|
Joint
Venture Agreement, dated September 24, 2019, by and between Bloom
Energy Corporation and SK ecoplant Co., Ltd. (filed
herewith). |
| F |
|
Amendment to the Joint
Venture Agreement, dated October 23, 2021, by and between
Bloom Energy Corporation and SK ecoplant Co., Ltd. (filed
herewith). |
| G |
|
Amended
and Restated Preferred Distributor Agreement, dated October 23,
2021, by and between Bloom Energy Corporation, Bloom SK Fuel Cell,
LLC and SK ecoplant Co., Ltd. (filed herewith). |
| H |
|
Commercial Collaboration Agreement, dated October
23, 2021, by and between Bloom Energy Corporation and SK ecoplant
Co., Ltd. (filed herewith). |
| I |
|
K-Sure
Overseas Investment Insurance (Investment Financing) Facility,
dated December 12, 2021, by and between SK ecoplant Co., Ltd., as
Borrower and BNP Paribas, as Lender, Mandated Lead Arranger and
Bookrunner (filed herewith). |
| J |
|
The
Overseas Investment Insurance (Investment Financing) Policy dated
as of December 21, 2021 among BNP Paribas Facility, SK, BNP Paribas
and the Korea Trade Insurance Corporation (filed
herewith). |
| K |
|
Loan
(Credit) Transaction Agreement between SK and The Export-Import
Bank of Korea dated as of November 2021 (filed
herewith). |
SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement
is true, complete and correct.
Date: December 12, 2022
| |
SK ecoplant Co.,
Ltd. |
| |
|
|
| |
By: |
/s/ Kyung-il Park |
| |
|
Name: |
Kyung-il Park |
| |
|
Title: |
Chief Executive Officer |
SCHEDULE I
DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSON
Set forth below is the name
and present principal occupation or employment of each director and
executive officer of SK ecoplant Co., Ltd. The business address of
each of the directors and executive officers is 19
Yulgok-ro 2-gil, Jongno-gu,
Seoul 03149, Korea. Each person listed below is a citizen of the
Republic of Korea.
|
Name |
|
Present Principal
Occupation |
| Lee
Seung Ho |
|
Outside Director of SK ecoplant Co., Ltd and
Director of Daekyo, an educational institution located at 23
Boramae-ro 3-gil, Gwanak-gu, Seoul |
| Kim Yoon
Mo |
|
Outside Director and Vice Chairman of Nautic
Investment, an investment company located at 10 Gukjegeumyung-ro,
Yeongdeungpo-gu, Seoul |
| Kim Jong
Ho |
|
Outside Director and Advisor of Shinhan
Accounting Corporation, an accounting company located at 8
Uisadang-daero, Yeongdeungpo-gu, Seoul |
| Park Sun
Kyu |
|
Outside Director and professor of Sungkyunkwan
University, 25-2 Seonggyungwan-ro, Jongno-gu, Seoul |
| Lee Sung
Hyung |
|
Non-standing Director and Chief Financial Officer
of SK, Inc., located at 26, Jong-ro, Jongno-gu, Seoul |
| Park
Kyung Il |
|
Director and Chief Executive Officer of SK
ecoplant Co., Ltd. |
| Pee Sung
Hyun |
|
Chief
Financial Officer of SK ecoplant Co., Ltd. |
| Yoon
Jang Suk |
|
Chief
Safety Officer of SK ecoplant Co., Ltd. |
Page 10
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