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): October 10, 2016
FUELCELL ENERGY, INC.
(Exact Name of Registrant as Specified in 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))




 


Item 1.01
Entry into a Material Definitive Agreement.
As previously disclosed, FuelCell Energy, Inc., (the "Company") has entered into the following agreements with POSCO Energy Co., Ltd. ("POSCO Energy");
 
(a)     Alliance Agreement ("AA"), dated as of February 7, 2007, with an original expiration date of February 7, 2017;
(b)     the Technology Transfer, Distribution and Licensing Agreement ("TTA"), dated as of February 7, 2007, with  an original expiration date of February 7, 2017; 
(c)      the Stack Technology Transfer and License Agreement ("STTA"), dated October 27, 2009, with an original expiration date of October 27, 2019; and
(d)     the Cell Technology Transfer and License Agreement ("CTTA"), dated October 31, 2012, with an original expiration date of October 31, 2027

On October 10, 2016, the Company entered into amendments to extend the expiration date of the AA, TTA and STTA to October 31, 2027. The purpose of these amendments is to harmonize the expiration dates of all agreements with the CTTA expiration date. The term of these agreements may be extended beyond 2027 through future extensions, each for a period of five (5) years, by mutual agreement of the Company and POSCO Energy. For the full text of these amendments, please refer to Exhibits 10.1, 10.2 and 10.3 filed herewith.

Item 9.01
Exhibits.

(d)
Exhibits.
 
 
 
Exhibit
No.
 
Description
 
 
 
10.1
 
Amendment to AA, dated as of October 10, 2016, by and between the Company and POSCO Energy
10.2
 
Amendment to TTA, dated as of October 10, 2016, by and between the Company and POSCO Energy
10.3
 
Amendment to STTA, dated as of October 10, 2016, by and between the Company and POSCO Energy





















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: October 14, 2016
 
By:
 
/s/ Michael S. Bishop
 
 
 
 
Michael S. Bishop
 
 
 
 
Senior Vice President, Chief Financial Officer, Corporate Secretary and Treasurer












Exhibit 10.1

AMENDMENT TO
ALLIANCE AGREEMENT


THIS AMENDMENT is made and entered into as of October 10, 2016.

BY AND BETWEEN

(1)
POSCO Energy Co., Ltd., a corporation duly organized and existing under the laws of the Republic of Korea, having its principal place of business at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul 135-777, Korea (“POSCO Energy”); and

(2)
FuelCell Energy, Inc., a Delaware corporation having a principal place of business at 3 Great Pasture Rd., Danbury, CT 06810, U.S.A. (“FCE”).

POSCO Energy and FCE are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, POSCO Energy and FCE are parties to a series of technology transfer agreements identified as follows:

(a)
the Alliance Agreement, dated as of February 7, 2007 (the “AA”);
(b)
the Technology Transfer, Distribution and Licensing Agreement, dated as of February 7, 2007, (the “TTA”);
(c)
the Stack Technology Transfer and License Agreement dated October 27, 2009 (the “STTA”); and
(d)
the Cell Technology Transfer and License Agreement dated October 31, 2012 (the “CTTA”);
all as amended, and among other agreements; and

WHEREAS, the Parties desire to amend the Term of the AA, in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing premises and mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.
Section 5.1 of Article V of the AA is replaced in its entirety by the following :

SECTION 5.1 Term . The initial term of this Agreement (the “ Initial Term ”) shall commence on the Effective Date and shall expire, unless earlier terminated in accordance with the provisions set forth herein, on October 31, 2027.

Except as set forth in this Amendment, the AA is unaffected and shall continue in full force and effect in accordance with its terms.











IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year written below.

POSCO Energy Co., Ltd.
 
 
FuelCell Energy, Inc.
 
 
 
 
 
 
By: /s/ Tong-Wood Shim
 
 
By: /s/ Michael S. Bishop
 
 
 
 
 
 
Name: Tong-Wook Shim
 
 
Name: Michael S. Bishop
 
Title: Executive Vice President,
 
 
Title: Senior Vice President,
 
         Chief Financial Officer     
 
 
         Chief Financial Officer
 
 
 
 
 
 
Date:      October 10, 2016
 
 
Date: October 13, 2016
 
 
 
 
 
 










Exhibit 10.2

AMENDMENT TO
TECHNOLOGY TRANSFER, LICENSE AND DISTRIBUTION AGREEMENT


THIS AMENDMENT is made and entered into as of October 10, 2016.

BY AND BETWEEN

(1)
POSCO Energy Co., Ltd., a corporation duly organized and existing under the laws of the Republic of Korea, having its principal place of business at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul 135-777, Korea (“POSCO Energy”); and

(2)
FuelCell Energy, Inc., a Delaware corporation having a principal place of business at 3 Great Pasture Rd., Danbury, CT 06810, U.S.A. (“FCE”).

POSCO Energy and FCE are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, POSCO Energy and FCE are parties to a series of technology transfer agreements identified as follows:

(a)
the Alliance Agreement, dated as of February 7, 2007 (the “AA”);
(b)
the Technology Transfer, Distribution and Licensing Agreement, dated as of February 7, 2007, (the “TTA”);
(c)
the Stack Technology Transfer and License Agreement dated October 27, 2009 (the “STTA”); and
(d)
the Cell Technology Transfer and License Agreement dated October 31, 2012 (the “CTTA”);
all as amended, and among other agreements,

WHEREAS, the Parties desire to amend the Term of the TTA, as amended previously on October 31, 2012, in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing premises and mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.
Section 8.1 of Article VIII of the TTA is replaced in its entirety by the following :

8.1 Term . The initial term of this Agreement (the “ Initial Term ”) shall commence on the Effective Date and shall expire, unless earlier terminated in accordance with the provisions set forth herein, on October 31, 2027.


Except as set forth in this Amendment, the TTA is unaffected and shall continue in full force and effect in accordance with its terms.


IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year written below.





POSCO Energy Co., Ltd.
 
 
FuelCell Energy, Inc.
 
 
 
 
 
 
By: /s/ Tong-Wood Shim
 
 
By: /s/ Michael S. Bishop
 
 
 
 
 
 
Name: Tong-Wook Shim
 
 
Name: Michael S. Bishop
 
Title: Executive Vice President,
 
 
Title: Senior Vice President,
 
         Chief Financial Officer     
 
 
         Chief Financial Officer
 
 
 
 
 
 
Date:      October 10, 2016
 
 
Date: October 13, 2016
 
 
 
 
 
 





Exhibit 10.3


AMENDMENT TO
STACK TECHNOLOGY TRANSFER AND LICENSE AGREEMENT


THIS AMENDMENT is made and entered into as of October 10, 2016.

BY AND BETWEEN

(1)
POSCO Energy Co., Ltd., a corporation duly organized and existing under the laws of the Republic of Korea, having its principal place of business at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul 135-777, Korea (“POSCO Energy”); and

(2)
FuelCell Energy, Inc., a Delaware corporation having a principal place of business at 3 Great Pasture Rd., Danbury, CT 06810, U.S.A. (“FCE”).

POSCO Energy and FCE are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS

WHEREAS, POSCO Energy and FCE are parties to a series of technology transfer agreements identified as follows:

(a)
the Alliance Agreement, dated as of February 7, 2007 (the “AA”);
(b)
the Technology Transfer, Distribution and Licensing Agreement, dated as of February 7, 2007, (the “TTA”);
(c)
the Stack Technology Transfer and License Agreement dated October 27, 2009 (the “STTA”); and
(d)
the Cell Technology Transfer and License Agreement dated October 31, 2012 (the “CTTA”);
all as amended, and among other agreements; and

WHEREAS, the Parties desire to amend the Term of the STTA, as amended previously on January 25, 2011 and October 31, 2012, respectively, in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing premises and mutual promises made herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1.
Section 8.1 of Article VIII of the STTA is replaced in its entirety by the following :

8.1 Term . The initial term of this Agreement (the “ Initial Term ”) shall commence on the Effective Date and shall expire, unless earlier terminated in accordance with the provisions set forth herein, on October 31, 2027.


Except as set forth in this Amendment, the STTA is unaffected and shall continue in full force and effect in accordance with its terms.







IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the date and year written below.

POSCO Energy Co., Ltd.
 
 
FuelCell Energy, Inc.
 
 
 
 
 
 
By: /s/ Tong-Wood Shim
 
 
By: /s/ Michael S. Bishop
 
 
 
 
 
 
Name: Tong-Wook Shim
 
 
Name: Michael S. Bishop
 
Title: Executive Vice President,
 
 
Title: Senior Vice President,
 
         Chief Financial Officer     
 
 
         Chief Financial Officer
 
 
 
 
 
 
Date:      October 10, 2016
 
 
Date: October 13, 2016