FUELCELL ENERGY INC (Form: 8-K, Received: 07/12/2016 17:02:12)

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): July 12, 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.

On July 12, 2016, FuelCell Energy, Inc. (referred to herein as “FuelCell” or the “Company”) completed its previously announced sale of common stock and warrants. By final agreement, the Company and the institutional investor (the “investor”) agreed that the transaction would be for the equivalent of 6,400,000 shares of common stock at a per share purchase price of $5.83, the closing bid price of the common stock on July 6, 2016, and Series A warrants to purchase 7,680,000 shares of common stock, in a registered direct offering for gross proceeds of approximately $37.3 million. Net proceeds, after deducting the placement agent fees and other estimated expenses, were approximately $34.7 million. If the investor chooses to execute the Series A warrants at a future date, the Company will receive additional proceeds at that time. The Company intends to use the proceeds from this offering to support project financing, working capital, and for general corporate purposes.

The transaction consisted of 1,474,000 shares of common stock, 7,680,000 Series A Warrants and 4,926,000 prefunded Series B Warrants. The Series A warrants have an exercise price of $5.83 per share and are initially exercisable beginning on the date that is six months and one day after the issue date and will expire on the fifth anniversary of the initial exercisability date. The Series B warrants are fully pre-funded warrants and are immediately exercisable. The Series B warrants have an exercise price of $0.0001 per share and will expire on the fifth anniversary of the issue date. The pre-funded Series B warrants were offered to the investor, whose purchase of shares of common stock in this offering would otherwise result in the investor, together with its affiliates and certain related parties, beneficially owning more than 4.99% of FuelCell’s outstanding common stock following the consummation of this offering. In lieu of the shares of common stock that would result in ownership in excess of 4.99%, the investor purchased the Series B warrants on the closing date of this offering. Such Series B warrants grant the investor the right to acquire additional shares of FuelCell common stock at a point in time of its choosing within five years of the issue date of the Series B warrants.

The common stock and warrants were offered and sold pursuant to a prospectus dated March 11, 2015 and a prospectus supplement dated July 7, 2016, in connection with a takedown from the Company’s effective shelf registration statement on Form S-3 (File No. 333-201427) declared effective by the Securities and Exchange Commission on March 11, 2015. On July 8, 2016, the Company and the investor in this transaction entered into Amendment No. 1 to that certain Securities Purchase Agreement, dated July 6, 2016 between the Company and the investor.

J.P. Morgan Securities LLC was the Placement Agent for this registered direct offering by the Company.

This report on Form 8-K is being filed in part for the purpose of incorporating Exhibit 10.5 by reference into the shelf registration statement.

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits.


Exhibit No.		Description

10.5		Amendment No. 1 to the Securities Purchase Agreement, made as of July 8, 2016

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: July 12, 2016	By:	/s/ Michael Bishop

		Michael Bishop
		Senior Vice President, Chief Financial Officer, Corporate Secretary and Treasurer

EXHIBIT INDEX


Exhibit No.		Description

10.5		Amendment No. 1 to the Securities Purchase Agreement, made as of July 8, 2016

EXHIBIT 10.5

AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT

This AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (the “ Amendment ”) is made as of July 8, 2016, by and among FuelCell Energy, Inc., a Delaware corporation with headquarters located at 3 Great Pasture Road, Danbury, Connecticut 06813 (the “ Company ”), and each of the investors listed on the Schedule of Buyers attached hereto (individually, a “ Buyer ” and collectively, the “ Buyers ”). Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Purchase Agreement (as defined below).

RECITALS

WHEREAS, the Company and the Buyers are parties to that certain Securities Purchase Agreement (the “ Purchase Agreement ”), dated as of July 6, 2016;

WHEREAS, the Company and the Buyers desire to amend the Purchase Agreement as set forth herein;

WHEREAS, the Purchase Agreement may be amended only by an instrument in writing signed by the Company and the Required Holders; and

WHEREAS, the undersigned Buyers constitute the Required Holders.

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and each Buyer hereby agree as follows:

1.	AMENDMENT.

(a) Amendment to Series A Warrants. The first paragraph of Exhibit A-1 to the Purchase Agreement is hereby amended by deleting the phrase “eight million two hundred thirty-three thousand two hundred seventy-seven (8,233,277)” and replacing it with “seven million six hundred eighty thousand (7,680,000)”.

(b) Amendment to Series B Warrants. The first paragraph of Exhibit A-2 to the Purchase Agreement is hereby amended by deleting the phrase “five million three hundred eighty-seven thousand sixty-four (5,387,064)” and replacing it with “four million nine hundred twenty-six thousand (4,926,000)”.

(c) Amendment to Schedule of Buyers. The Schedule of Buyers is hereby deleted and replaced in its entirety with Exhibit A attached hereto.

2.	CONTINUED VALIDITY OF PURCHASE AGREEMENT.

(a) Except as amended hereby, the Purchase Agreement shall continue in full force and effect as originally constituted and as ratified and affirmed by the parties hereto.

(b) The Company hereby confirms that none of the terms, conditions or agreements contained in this Amendment (i) are material to the Company or any of its Subsidiaries, nor (ii) have any such terms, conditions or agreements caused any of the Buyers or their agents or counsel to be in possession of any information that constitutes or could reasonably be expected to constitute material, non-public information concerning the Company or any of its Subsidiaries.

3.	SUCCESSORS AND ASSIGNS.

Except as otherwise provided herein, the terms and conditions of this Amendment shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.

4.	GOVERNING LAW.

All questions concerning the construction, validity, enforcement and interpretation of this Amendment shall be governed by the internal laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York.

5.	COUNTERPARTS.

This Amendment may be executed in two or more identical counterparts, all of which shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party. In the event that any signature is delivered by facsimile transmission or by an e-mail which contains a portable document format (.pdf) file of an executed signature page, such signature page shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.

[Remainder of page intentionally left blank.]

IN WITNESS WHEREOF, each Buyer and the Company have caused their respective signature page to this Amendment to be duly executed as of the date first written above.


COMPANY:


FUELCELL ENERGY, INC.


By:
		Name:
		Title


BUYER:


By:
		Name:
		Title:

EXHIBIT A

SCHEDULE OF BUYERS

(1)

(2)

(3)

(4)

(5)

(6)

Aggregate
Number of
Common Shares

Aggregate
Number of
Series A
Warrant Shares

Aggregate
Number of
Series B
Warrant Shares

Legal Representative’s
Address and Facsimile Number

Buyer

Address and Facsimile Number

Purchase Price