FUELCELL ENERGY INC (Form: 8-K, Received: 05/05/2022 08:02:09)

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): April 29, 2022

FUELCELL ENERGY, INC.

(Exact Name of Registrant as Specified in its 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))

Securities registered pursuant to Section 12(b) of the Act:


Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Common Stock, $0.0001 par value per share	FCEL	The Nasdaq Stock Market LLC (Nasdaq Global Market)

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. ☐

Item 1.01.Entry into a Material Definitive Agreement.

Amendment No. 2 to Joint Development Agreement between FuelCell Energy, Inc. and ExxonMobil Technology and Engineering Company (f/k/a ExxonMobil Research and Engineering Company)

On April 29, 2022, FuelCell Energy, Inc. (the “Company”) and ExxonMobil Technology and Engineering Company (f/k/a ExxonMobil Research and Engineering Company) (“EMTEC”) entered into Amendment No. 2 to the Joint Development Agreement between the Company and EMTEC (“Amendment No. 2”), effective as of April 30, 2022.

The Joint Development Agreement between the Company and EMTEC (the “Original Agreement”) was executed on November 5, 2019, was effective as of October 31, 2019, and had a term of two years from the effective date, ending on October 31, 2021. Under the Original Agreement, the Company has engaged in exclusive research and development efforts with EMTEC to evaluate and develop new and/or improved carbonate fuel cells to reduce carbon dioxide emissions from industrial and power sources in exchange for (i) payment by EMTEC of certain fees and costs (including research costs of up to $45,000,000) as well as certain milestone-based payments, and (ii) certain licenses, in each case as described in the Original Agreement. The terms of the Original Agreement are described more fully in the Current Report on Form 8-K filed by the Company on November 6, 2019.

In Amendment No. 1 to the Joint Development Agreement (“Amendment No. 1”), which was executed on October 29, 2021 and effective as of October 31, 2021, the Company and EMTEC agreed, among other things, to extend the term for an additional six months, ending on April 30, 2022. Amendment No. 1 allowed for the continuation of research intended to enable incorporation of design improvements to Company fuel cell design in order to support a decision to use the improvements in a future demonstration of the technology for capturing carbon at ExxonMobil’s Rotterdam refinery in the Netherlands (such demonstration, the “Rotterdam Project”) and provided additional time to achieve Milestone 1, as defined in the Original Agreement. The terms of Amendment No. 1 are described more fully in the Current Report on Form 8-K filed by the Company on November 2, 2021.

In Amendment No. 2, the Company and EMTEC agreed to further extend the term such that it will end on December 31, 2022 (unless terminated earlier) and to increase the maximum amount of research costs to be reimbursed by EMTEC from $45,000,000 to $50,000,000. Amendment No. 2 allows for the continuation of research that would enable the parties to (i) gain an improved understanding of the fuel cell operating envelope for various carbon capture applications; and (ii) complete data collection to support the project gate decision to use the developed technology in a Company fuel cell module demonstration for capturing carbon at ExxonMobil’s Rotterdam facility. In Amendment No. 2, the Company and EMTEC also agreed to conduct a joint market study, with a target completion date on or before October 31, 2022, to (a) define application opportunities, commercialization strategies, and development requirements, (b) identify partners for potential pilot/demonstration projects and (c) assess fuel cell/stack/module manufacturing scale-up and cost reduction.

The foregoing summary of the terms of Amendment No. 2 is qualified in its entirety by reference to the full text of Amendment No. 2, a copy of which is attached as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

Other Material Relationships with ExxonMobil Technology and Engineering Company

In addition to the Original Agreement (as amended by Amendment No. 1 and Amendment No. 2), in June 2019, the Company and EMTEC entered into a license agreement to facilitate the further development of the Company’s SureSource Capture^TM product. Pursuant to this license agreement, the Company granted EMTEC and its affiliates a non-exclusive, worldwide, fully-paid, perpetual, irrevocable, non-transferable license and right to use the Company’s patents filed on or before April 30, 2021, and any data, know-how, improvements, equipment designs, methods, processes and the like provided directly by the Company or its affiliates to EMTEC or its affiliates under any agreement or otherwise, on or before April 30, 2021, to the extent it is useful to research, develop and commercially exploit carbonate fuel cells in applications in which the fuel cells concentrate carbon dioxide from industrial and power sources and for any other purpose attendant thereto or associated therewith.

This license agreement is being described only for the purpose of describing the material relationships between the Company and EMTEC and is not impacted by Amendment No. 2.

Additionally, the Company and EMTEC previously entered into a letter agreement, dated as of October 28, 2021 and executed on October 29, 2021 (the “Letter Agreement”), pursuant to which the Company agreed to invest with EMTEC in the Rotterdam Project, should EMTEC move forward with the demonstration project. In the Letter Agreement, the Company agreed that, if (i) the Company achieves Milestone 1 (which occurred in January 2022), and (ii) EMTEC and the Company execute a contractual agreement to proceed with the Rotterdam Project, then at EMTEC’s option, the Company will either make an investment in the amount of $5,000,000 in the Rotterdam Project or discount EMTEC’s purchase of the Company’s fuel cell module and detailed engineering design, as agreed to by the parties, required for the Rotterdam Project by said amount.

This Letter Agreement is being described only for the purpose of describing the material relationships between the Company and EMTEC and is not impacted by Amendment No. 2.

Item 7.01 Regulation FD Disclosure.

On May 5, 2022, the Company issued a press release announcing the extension of the term of its Joint Development Agreement with EMTEC. A copy of this press release is furnished with this Current Report on Form 8-K as Exhibit 99.1.

The information furnished in this Item 7.01, including Exhibit 99.1, is not deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability of that section. This information will not be deemed to be incorporated by reference into any filing under the Securities Act of 1933, as amended, or the Exchange Act, except to the extent that the Company specifically incorporates it by reference.

Item 9.01.Financial Statements and Exhibits.

(d) The following exhibits are being filed or furnished (as applicable) herewith:


Exhibit No.		Description

10.1		Amendment No. 2 to Joint Development Agreement between FuelCell Energy, Inc. and ExxonMobil Technology and Engineering Company, effective as of April 30, 2022.

99.1		Press Release issued by FuelCell Energy, Inc. on May 5, 2022.

104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

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: May 5, 2021	By:	/s/ Michael S. Bishop
		Michael S. Bishop
		Executive Vice President, Chief Financial Officer and Treasurer

EXHIBIT 10.1

AMENDMENT NO. 2 to JOINT DEVELOPMENT AGREEMENT

Between

FUELCELL ENERGY, INC.

and

EXXONMOBIL TECHNOLOGY AND ENGINEERING COMPANY

ExxonMobil Technology and Engineering Company f/k/a ExxonMobil Research and Engineering Company (“ExxonMobil”) and FuelCell Energy, Inc. (“FCE”) are Parties to the Joint Development Agreement with an Effective Date of October 31, 2019 and an ExxonMobil Agreement No. LAW-2019-3608 (“Agreement”).

WHEREAS, the Agreement was amended on October 31, 2021 to extend the term of the Agreement to April 30, 2022 enabling the Parties to further evaluate the incorporation of design improvements in the current fuel cell design; and

WHEREAS, the Parties now wish to further amend the Agreement to allow for continuation of research that would enable the Parties to i) gain an improved understanding of the fuel cell operating envelope for various carbon capture applications; and ii) complete data collection to support the project gate decision to use the developed technology in an FCE fuel cell module demonstration for capturing carbon at ExxonMobil’s Rotterdam facility; and

WHEREAS, the Parties agree to conduct a joint market study, each Party bearing its own costs, to define application opportunities, commercialization strategies, development requirements, and identify partners for potential pilot/demonstration projects and assess fuel cell/stack/module manufacturing scale-up and cost reduction, with a target completion date on or before October 31, 2022.

To accomplish this, effective April 30, 2022, the Parties hereby agree as follows:

1.	ExxonMobil Technology and Engineering Company shall replace all references to ExxonMobil Research and Engineering Company in the Agreement.

2.Article 12.01 Term. shall be deleted in its entirety and replaced with the following:

12.01Term. Unless sooner terminated in accordance with this Article, this Agreement will continue in full force and effect beginning on the Effective Date and ending thirty-eight (38) months thereafter on December 31, 2022 (“Term”).

3.Article 10.01 Project Costs, a) shall be deleted in its entirety and replaced with the following:

10.01 Project Costs

a)ExxonMobil will reimburse FCE for Research Costs (i.e., cumulative FTE Costs and Direct Costs) for each Project subject to total caps set forth herein and in the relevant Project Description. Research Costs of FCE paid for by ExxonMobil will be limted to FTE Costs for time actually spent on the Program and Direct Costs actually incurred and approved in advance by the Steering Committee. The cumulative Research Costs for the Program will not exceed fifty million United States dollars ($50,000,000.00) over the Term of the Agreement (“Total Research Cost”). ExxonMobil will reimburse FCE for Research Costs after receipt of invoices on a monthly basis. Invoices for Direct Costs will be supported by relevant third party invoices received by FCE documenting such costs. Materials shall be invoiced as incurred and subject to a thirty percent (30%) service fee. All such payments will be made after ExxonMobil’s receipt of invoices in accordance with invocing procedures specficied in Paragraphs 10.01(b)-(e) and in Paragraph 10.04 (Invoices).

4.Article 2.03 shall be deleted in its entirety and replaced with the following:

2.03 Work Exclusivity/Independent Work. During the Term of this Agreement, FCE will not conduct any Work using Generation l Technology in Carbon Capture Applications or any Work using Generation 2 Technology, independently or with third parties outside this Agreement, without prior written approval from ExxonMobil. Notwithstanding the foregoing, ExxonMobil hereby grants approval for FCE solely to conduct Authorized Work using Generation l Technology with Authorized Third Parties for Carbon Capture Applications and any Work using Generation 2 Technology solely for Power Applications and Hydrogen Applications. For the avoidance of doubt, the Parties agree that with respect to Generation 2 Technology, FCE may conduct non-confidential exploratory discussions with third parties regarding possible demonstration or project opportunities as part of its joint market study, and as defined therein, with Exxonmobil, without prior written approval.

Except as modified herein, all provisions of the Agreement remain unchanged.

This Amendment may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. Where provided for in applicable law, this Amendment may be executed and delivered electronically. If executing this Amendment using a handwritten signature, a Party may deliver a copy of such signature via electronic transmission and may provide the other Party a duplicate original so each Party retains an original for its records.

Each Party has caused this Amendment to be signed by its authorized representative.


FUELCELL ENERGY, INC.			EXXONMOBIL TECHNOLOGY AND ENGINEERING COMPANY
By:	/s/ Jason Few	By:		/s/ Prasanna V. Joshi

Name:	Jason Few	Name:		Prasanna V. Joshi

Title:	President and CEO	Title:		Vice President, Low Carbon Solutions Technology

Date:	April 29, 2022	Date:		April 29, 2022

Page 2 of 2

Exhibit 99.1

A picture containing text

Description automatically generated

FuelCell Energy Extends Term of Agreement with ExxonMobil for Development and Deployment of Carbon Capture Technology

DANBURY, CT, May 5, – FuelCell Energy, Inc. (Nasdaq: FCEL) -- a global leader in manufacturing stationary fuel cell energy platforms for decarbonizing power, and producing hydrogen to enable a world empowered by clean energy – today announced that it has extended the term of its joint development agreement with ExxonMobil Technology and Engineering Company through December 31, 2022. The agreement will enable the companies to continue working to advance fuel cell carbon capture and storage technology closer to commercialization and to explore market applications with a focus on three areas:

1) Continue technology development to enhance understanding of fuel cell operating envelope for various carbon capture applications.

2) Complete technology readiness in support of a potential deployment of the technology in a fuel cell module demonstration for capturing carbon at an ExxonMobil facility.

3) Conduct a joint market study to define application opportunities, commercialization strategies, and identify partners for potential demonstration for industrial carbon capture applications.

“Extending the scope of our long-standing agreement is evidence of ExxonMobil and FuelCell Energy’s joint desire to accelerate commercial deployment of differentiated fuel cell carbon capture technology,” said Jason Few, CEO of FuelCell Energy. “We are excited to build on the

recent achievement of a key technical milestone as we advance toward the goals of a carbon capture demonstration and, ultimately, full scale deployment. We believe carbon capture is an essential requirement toward achieving global climate objectives.”

“We are extending our agreement with FuelCell Energy to continue joint development of a novel technology that may accelerate deployment of carbon capture in industrial sectors,” said Prasanna Joshi, Vice President of ExxonMobil Technology and Engineering Company. “Carbonate fuel cell technology is part of our lower-emissions research and development portfolio as we look to identify commercially scalable technologies that can help reduce greenhouse gas emissions from vital sectors of the economy in support of a net-zero future.”

About FuelCell Energy

FuelCell Energy, Inc. (NASDAQ: FCEL): FuelCell Energy is a global leader in sustainable clean energy technologies that address some of the world’s most critical challenges around energy, safety and global urbanization. As a leading global manufacturer of proprietary fuel cell technology platforms, FuelCell Energy is uniquely positioned to serve customers worldwide with sustainable products and solutions for businesses, utilities, governments and municipalities. Our solutions are designed to enable a world empowered by clean energy, enhancing the quality of life for people around the globe. We target large-scale power users with our megawatt-class installations globally, and currently offer sub-megawatt solutions for smaller power consumers in Europe. To provide a frame of reference, one megawatt is adequate to continually power approximately 1,000 average sized U.S. homes. We develop turn-key distributed power generation solutions and operate and provide comprehensive service for the life of the power plant. Our fuel cell solution is a clean, efficient alternative to traditional combustion-based power generation, and is complementary to an energy mix consisting of intermittent sources of energy, such as solar and wind turbines. Our customer base includes utility companies, municipalities, universities, hospitals, government entities/military bases and a variety of industrial and commercial enterprises. Our leading geographic markets are currently the United States and South Korea, and we are pursuing opportunities in other countries around the world. FuelCell Energy, based in Connecticut, was founded in 1969.

SureSource, SureSource 1500, SureSource 3000, SureSource 4000, SureSource Recovery, SureSource Capture, SureSource Hydrogen, SureSource Storage, SureSource Service, SureSource Treatment, SureSource Capital, FuelCell Energy, and FuelCell Energy logo are all trademarks of FuelCell Energy, Inc.

Cautionary Note Regarding Forward-Looking Statements

This release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 regarding future events or the Company’s future performance that involve certain contingencies and uncertainties. The forward-looking statements include, without limitation, the Company’s plans and expectations regarding the continuing development and commercialization of its carbon capture technology. These forward-looking statements are not guarantees of future performance, and all forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. Factors that could cause such a difference include, without limitation, the risks set forth in the Company’s filings with the Securities and Exchange Commission, including the Company’s Annual Report on Form 10-K for the fiscal year ended October 31, 2021. The forward-looking statements contained herein speak only as of the date of this release. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any such statement contained herein to reflect any change in the Company’s expectations or any change in events, conditions or circumstances on which any such statement is based.