Current Report Filing (8-k)
13 Juni 2018 - 11:16PM
Edgar (US Regulatory)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington
,
D.C. 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): June 13, 2018
FUELCELL
ENERGY, INC.
(Exact name of registrant as specified
in its charter)
Delaware
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1-14204
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06-0853042
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(State or other
jurisdiction of
incorporation)
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(Commission File
Number)
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(IRS Employer
Identification No.)
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3 Great Pasture Road
Danbury, Connecticut
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06810
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(Address of Principal Executive Offices)
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(Zip Code)
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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:
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¨
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Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
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¨
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Soliciting material pursuant to Rule 14a-12 under the
Exchange Act (17 CFR 240.14a-12)
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¨
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Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
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¨
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Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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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.
¨
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Item 1.01.
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Entry into a Material Definitive Agreement.
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On June 13, 2018,
FuelCell Energy, Inc. (the “Company”) entered into an At Market Issuance Sales Agreement (the “Sales Agreement”)
with B. Riley FBR, Inc. (“BRFBR”) and Oppenheimer & Co. Inc. (together with BRFBR, the “Agents”) to
create an at the market equity program under which the Company from time to time may offer and sell shares of its common
stock, par value $0.0001 per share, having an aggregate offering price of up to $50,000,000 (the “Placement Shares”)
through the Agents.
Subject to the terms
and conditions of the Sales Agreement, each time that the Company wishes to issue and sell the Placement Shares, it will notify
an Agent (the “Designated Agent”) and such Designated Agent will use its commercially reasonable efforts to sell the
Placement Shares, based upon the Company’s instructions. The Company has provided the Agents with customary indemnification
rights, and the Designated Agent will be entitled to a commission in an amount equal to 3.0% of the gross proceeds from each sale
of the Placement Shares by such Designated Agent.
Sales of the Placement
Shares, if any, under the Sales Agreement may be made in transactions that are deemed to be “at the market offerings”
as defined in Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”). The Company has no obligation
to sell any of the Placement Shares and may at any time suspend offers under the Sales Agreement. The offering of the Placement
Shares pursuant to the Sales Agreement will terminate upon the earlier of (a) the sale of all of the Placement Shares or (b) the
termination of the Sales Agreement by the Company, as provided therein. Each Agent may also terminate the Sales Agreement as to
such Agent, as provided therein.
This description of
the Sales Agreement does not purport to be complete and is qualified in its entirety by reference to the Sales Agreement, which
is attached hereto as Exhibit 10.1 and incorporated by reference herein.
The Placement Shares
to be sold under the Sales Agreement, if any, will be issued and sold pursuant to the Company’s shelf registration statement
on Form S-3 (File No 333-215530), previously filed with the Securities and Exchange Commission (“SEC”)
on January 12, 2017, and declared effective by the SEC on February 27, 2017. A prospectus supplement related to the Company’s
at the market equity program has been filed with the SEC. This Current Report on Form 8-K shall not constitute an offer to sell
or the solicitation of an offer to buy the Placement Shares nor shall there be any sale of the Placement 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.
The legal opinion of
Foley & Lardner LLP relating to the legality of the issuance and sale of the Placement Shares is attached as Exhibit 5.1 to
this Current Report on Form 8-K and is incorporated herein by reference.
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Item 9.01.
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Financial Statements and Exhibits.
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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.
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FUELCELL ENERGY, INC.
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Date: June 13, 2018
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By:
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/s/ Michael S. Bishop
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Michael S. Bishop
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Senior Vice President, Chief Financial Officer and Treasurer
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