Item 1.01
Entry into a Material Definitive Agreement.
On April 28, 2017, FuelCell Energy, Inc.
(“FuelCell”) entered into an underwriting agreement (the “Underwriting Agreement”) with Oppenheimer &
Co. Inc. as representative of the underwriters named therein (the “Underwriters”), relating to an underwritten public
offering (the “Offering”) of FuelCell’s
c
ommon stock, par value
$0.0001 per share (the “Common Stock”) and short-term and long-term warrants. Subject to the terms and conditions contained
in the Underwriting Agreement, the Underwriters have agreed to purchase, and the Company has agreed to sell, (i) 12,000,000
shares
of Common Stock
, (ii) Series C warrants to purchase an aggregate of 12,000,000 shares of Common Stock and (iii) Series
D warrants to purchase an aggregate of 12,000,000 shares of Common Stock, at a public offering price of $1.28 per share and accompanying
warrants, less the Underwriters’ discount (the “Offering Price”). Under the terms of the Underwriting Agreement,
FuelCell has also granted the Underwriters a 30-day option to purchase up to an additional 1,800,000 shares of Common Stock, Series
C warrants to purchase up to an aggregate of 1,800,000 shares of Common Stock and Series D warrants to purchase up to an aggregate
of 1,800,000 shares of Common Stock at the Offering Price. The net proceeds to the Company from the Offering, after deducting the
Underwriters’ discount and other estimated offering expenses payable by the Company, are expected to be approximately $13,761,000,
assuming no exercise by the Underwriters of their option. The net proceeds from the Offering will be used for project development,
project financing, working capital and general corporate purposes.
The Series C warrants have an exercise
price of $1.60 per share, are immediately exercisable and will expire on the fifth anniversary of the date of issuance. The
Series D warrants have an exercise price of $1.28 per share, are immediately exercisable and will expire on the first anniversary
of the date of issuance.
Certain investors in the Offering have
entered into separate leak-out agreements (a “Leak-Out Agreement”) with FuelCell providing that during the period beginning
on the date of the Leak-Out Agreement and ending on May 28, 2017, neither such investor nor certain of its affiliates will sell,
directly or indirectly, on any trading day more than a fixed percentage (20% in the aggregate by all such investors) of the trading
volume of the Common Stock on such day (subject to certain exceptions, including sales at a price greater than $1.61 at a time
when the offer price of the Common Stock is greater than $1.60).
The Offering is expected to close on or
about May 3, 2017, subject to customary closing conditions.
Copies of the
Underwriting
Agreemen
t and the Form of Leak-Out Agreement are attached to this Current Report on Form
8-K as Exhibits 1.1, and 4.3, respectively, and are incorporated herein by reference. The forms of Series C warrant and Series
D warrant were previously filed as Exhibits 4.1 and 4.2 to the Current Report on Form 8-K filed by the Company on April 28, 2017.
The foregoing is only a brief description of the material terms of the
Underwriting Agreemen
t,
the Series C and Series D warrants and the Leak-Out Agreement, does not purport to be a complete description of the rights and
obligations of the parties thereunder and is qualified in its entirety by reference to these Exhibits.
The Company offered and is selling the
above-described securities pursuant to a prospectus dated February 24, 2017 and a prospectus supplement dated April
27, 2017 (the “Prospectus Supplement”), pursuant to the Company’s shelf registration statement on Form S-3 (SEC
File No. 333-215530), previously declared effective by the Securities and Exchange Commission (the “Shelf Registration
Statement”). This
Current Report on
Form 8-K is being filed in part for the
purpose of incorporating Exhibits
1.1 and 4.3
by reference into the Shelf Registration
Statement.
The legal opinion of Robinson & Cole
LLP relating to the Common Stock and warrants being offered is filed as Exhibit 5.1 to this Current Report on Form 8-K.