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): November 8, 2018

 

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))

 

 

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 5.02. 

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Chairman of the Board

 

On November 8, 2018, the Board of Directors (“Board”) of FuelCell Energy, Inc. (the “Company”) adopted a new director retirement age policy requiring, among other things, the resignation of the Chairman of the Board from such Chairman position following his or her 75 th birthday.  As the then-current Chairman of the Board, John A. Rolls had reached 75 years of age prior to November 8, 2018, in connection with the adoption of this new policy, on November 8, 2018, the Board elected James Herbert England to serve as the Chairman of the Board, effective immediately.  Mr. England also continues to serve as a member of the Audit and Finance Committee and the Executive Committee.  

 

While Mr. Rolls no longer serves as Chairman of the Board, he continues to serve as a member of the Board, the Executive Committee, and the Nominating and Corporate Governance Committee and has been appointed to serve on the Compensation Committee.  In honor of Mr. Rolls’ long-standing service to the Board, the Board adopted a resolution at its November 8th meeting recognizing and thanking Mr. Rolls for his service and valuable contributions.

 

 

Appointment of New Directors

 

On November 8, 2018, the Board increased the size of the Board to nine directors and elected two new directors –Jason Few and Christina Lampe-Onnerud (the “New Non-Employee Directors”) – to serve on the Board effective immediately until the annual meeting of the stockholders of the Company to be held in 2019 or until their earlier resignation or removal.  In addition to their election to the Board, Mr. Few has been appointed to serve on the Audit and Finance Committee and the Compensation Committee, and Ms. Lampe-Onnerud has been appointed to serve on the Compensation Committee and the Nominating and Corporate Governance Committee.  

 

There are no arrangements or understandings between any of the New Non-Employee Directors and any other person pursuant to which he or she was selected as a director, nor are there any transactions in which any of the New Non-Employee Directors has an interest that would be reportable under Item 404(a) of Regulation S-K.  

 

As non-employee directors, the New Non-Employee Directors will be compensated in accordance with the Company’s compensation policies for non-employee directors, which are described in the Company’s proxy statements filed with the Securities and Exchange Commission.

 

In connection with their election to the Board, each of the New Non-Employee Directors received a pro-rated annual retainer for service on the Board of $11,667 and pro-rated annual non-chair committee fees of $1,667 for the first committee of which he or she is a member and $833 for each additional committee of which he or she is a member.  The retainer and fees may be paid in cash or common stock of the Company at the election of the New Non-Employee Directors.

 

In addition, each of the New Non-Employee Directors received an award of 18,350 restricted stock units (“RSUs”) under the Company’s 2018 Omnibus Equity Incentive Plan (the “Plan”), which Plan is described in the definitive proxy statement filed by the Company on February 16, 2018.  Such RSUs (i) vest on the date of the regularly scheduled annual meeting of the stockholders of the Company to be held in 2019, (ii) are to be settled in cash or in shares of the Company’s common stock, at the discretion of the Compensation Committee, as the administrator under the Plan, (iii) are subject to the Plan, and (iv) are subject to the terms and conditions set forth in the Restricted Stock Unit Award Agreement pursuant to which such RSUs are granted, which is based on the form of Restricted Stock Unit Award Agreement approved by the Compensation Committee, which is filed herewith as Exhibit 10.1.  

 

The foregoing summary of the RSUs granted to the Non-Employee Directors does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Restricted Stock Unit Award Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 8.01. Other Events.

 

On November 13, 2018, the Company issued a press release announcing the adoption of a mandatory retirement age and term limit for Directors, the election of a new Chairman of the Board and the election of the New Non-Employee Directors.  A copy of the press release is furnished herewith as Exhibit 99.1 to this Current Report on Form 8-K.

 

 

2

 

Item 9.01. Financial Statements and Exhibits.

 

(a)

Not applicable.

 

 

(b)

Not applicable.

 

 

(c)

Not applicable.

 

 

(d)

Exhibits .  

 

The following exhibit is being furnished herewith:

 

Exhibit

No.

 

Description

 

 

 

10.1

 

Form of Restricted Stock Unit Award Agreement (Non-Employee Directors).

99.1

 

FuelCell Energy, Inc., Press Release, dated November 13, 2018.

 

 

 

3

 

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:  November 13, 2018

 

By:

 

/s/ Michael S. Bishop

 

 

 

 

Michael S. Bishop

 

 

 

 

Senior Vice President, Chief Financial Officer and Treasurer

 

 

 

Exhibit 10.1

 

Non-Employee Director Form  

 

 

FuelCell Energy, Inc.

2018 OMNIBuS INCENTIVE PLAN

Restricted Stock Unit Award

Dear ____________,

 

You have been granted an award (an “ Award ”) of restricted stock units of FuelCell Energy, Inc., a Delaware corporation (the “ Company ”), which are subject to the terms of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “ Plan ”) and this Restricted Stock Unit Award Agreement (this “ Agreement ”).  Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.

 

 

Grant Date:

 

______________, 2018

Number of Restricted Stock Units:

 

_______________ (the “ Restricted Stock Units ”)

Vesting Schedule:

 

Your Restricted Stock Units will vest according to the following schedule, provided that you remain continuously in the service of the Company or an Affiliate through the applicable vesting date:

[insert vesting schedule]

Except as otherwise provided in this Agreement or in the Plan, upon your cessation of services to the Company and its Affiliates prior to the date the Restricted Stock Units are vested (as described above), you will forfeit the unvested Restricted Stock Units.

Change of Control:

 

Upon a Change of Control, your Restricted Stock Units will be treated in accordance with Section 19 of the Plan.

Settlement:

 

As soon as practicable after each vesting date (but in no event later than seventy-five (75) days after the vesting date) the Company will settle the Restricted Stock Units by electing either to (i) issue in your name certificate(s) or make an appropriate book entry for a number of Shares equal to the number of Restricted Stock Units that have vested or (ii) deliver an amount of cash equal to the Fair Market Value, determined as of the vesting date, of a number of Shares equal to the number of Restricted Stock Units that have vested.

Rights as Stockholder:

 

You will not be deemed for any purposes to be a stockholder of the Company with respect to any of the Restricted Stock Units unless and until Shares are issued to you upon settlement of this Award.

 

 

 

Restrictions on Transferability:

 

Except as provided in the Plan, you may not sell, transfer, assign, pledge, or otherwise alienate this Award, and any attempt to do so shall be null and void.

Tax Withholding:

 

You understand that you (and not the Company) shall be responsible for your own federal, state, local, or foreign tax liability and any of your other tax consequences that may arise as a result of this Award, and that you should rely solely on the determinations of your tax advisors or your own determinations, and not on any statements or representations by the Company or any of its agents with regard to all tax matters.

To the extent that the receipt, vesting or settlement of the Restricted Stock Units, or disposition of any Shares acquired under your Award results in income to you for national, federal, state, local, foreign, or other tax purposes, the Company may deduct (or require an Affiliate to deduct) from any payments of any kind otherwise due to you to satisfy such tax or other withholding obligations. Alternatively, the Company or its Affiliate may require you to pay to the Company or its Affiliate, in cash, promptly on demand, or make other arrangements satisfactory to the Company or its Affiliate regarding the payment of the withholding amount.

Electronic Communications:

 

The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means.  By accepting this Award, you hereby consent to receive such documents by electronic delivery, and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third-party designated by the Company.  You also agree that all on-line acknowledgements shall have the same force and effect as a written signature.

 

 

Miscellaneous:

 

•     This Award is expressly subject to all the terms and conditions contained in this Agreement and the Plan, and the terms of the Plan are incorporated herein by reference.

 

•     As a condition of the granting of this Award, you agree, for yourself and your legal representatives or guardians, that this Award shall be interpreted by the Administrator and that any interpretation by the Administrator of the terms of this Agreement or the Plan and any determination made by the Administrator pursuant to this Award shall be final, binding and conclusive.  

 

•     Generally, this Agreement can only be modified or amended by a writing signed by both you and the Company.  However, the Administrator may modify or amend this Award in certain circumstances without your consent as permitted by the Plan.

 

•     The grant of this Award does not provide you with any right to continued service with the Company or any Affiliate.

 

•     The Restricted Stock Units constitute a mere promise by the Company to make specified payments in the future if such benefits come due under the Award. You will have the status of a general creditor of the Company with respect to any vested Award.

 

•     By accepting this Award, you agree not to sell any Shares acquired under this Award at a time when applicable laws, Company policies, or an agreement between the Company and its underwriters prohibit a sale.

 

•     This Award, and any compensation or benefits that you receive as a result of this Award, shall be subject to any clawback or recoupment policy that the Company may adopt from time to time.

 

The Company has caused this Agreement to be executed by one of its authorized officers and is effective as of the Grant Date.

 

FuelCell Energy, Inc.

 

 

______________________

[Name]

[Title]

 

 

 

EXHIBIT 99.1

 

FOR IMMEDIATE RELEASE

 

FuelCell Energy Announces Governance Changes, Appoints New Chairman and Expands Board to Nine Members                          

 

 

•

Sets Mandatory Retirement Age and Tenure Limit

 

•

James Herbert England appointed Chairman of the Board of Directors

 

•

Two New Appointments to the Board of Directors

 

DANBURY, CT -- November 13, 2018- - FuelCell Energy , Inc. (Nasdaq: FCEL), a global leader in delivering clean, innovative and affordable fuel cell solutions for the supply, recovery and storage of energy, today announced a number of changes to its Board of Directors and certain new corporate governance principles.

 

As part of the Company’s commitment to good corporate governance practices and principles, and in furtherance of Board refreshment initiatives, the FuelCell Energy Board of Directors has adopted a mandatory director retirement age of 75 and set a director term limit of 12 years, subject to certain exceptions necessary to ensure an orderly transition of Board members and leadership positions.

 

James Herbert England has been appointed the new Chairman of the Board of Directors, replacing John Rolls, who has served on the Board of Directors of FuelCell Energy since 2000 (and will continue to serve on the Board of Directors), served as Lead Independent Director from 2007 – 2011, and has been Chairman since 2011. Mr. England has extensive management and board of director experience, including as a director of Enbridge Energy Company, Inc. , bringing deep insight into the energy industry and an in-depth knowledge of corporate and international finance. Joining the FuelCell Energy Board of Directors are Jason Few and Christina Lampe-Onnerud. Committee memberships are also being adjusted with the addition of the new directors.

 

“As a long-standing member of the Board of Directors and Chairman of the Board since 2011, John Rolls has played a key role in shaping FuelCell Energy and has ensured its strategic positioning for growth ,” stated Herb England, newly appointed Chairman of the Board. “His extensive finance and leadership background have been and will continue to be extremely valuable for our company. John has served with honor and distinction, working tirelessly to promote the Company and in pursuit of the advanced deployment of solutions utilizing stationary fuel cell technology. We thank John for his dedicated service, and look forward to his continued participation on the Board.”

 

“Additionally, we are pleased to welcome Jason and Christina as new independent directors to the FuelCell Energy board,” added Mr. England. “They are joining FuelCell Energy at a very exciting time as we work to execute on our record backlog, compete and win new projects, and continue to develop revolutionary technology in areas of carbon capture, distributed hydrogen and long duration energy storage. The addition of these directors complements and enhances our Board of Directors’ skills and experiences and increases our connection to energy markets and companies, and we are confident that they will all provide valuable perspectives as we continue our focus on execution.”


 

 

 

About Jason Few

 

Jason Few, 52, has over 30 years of experience increasing enterprise value for Global Fortune 500 and privately held technology, telecommunication, and energy firms. Currently, Jason is President of Sustayn Analytics LLC, a cloud-based software waste and recycling optimization company. Jason has overseen transformational opportunities across the technology and industrial energy sectors, including with Continuum Energy, NRG Energy, and Reliant Energy, as well as with multi-brand, multi-product line consumer services companies such as Motorola, SBC and NCR Corporation. Jason brings a track record of successfully launching new business platforms, as well as driving accelerated growth. He is active in his community serving on the boards of Memorial Hermann Hospital, the American Heart Association, and the St. John’s School Investment Committee.  Jason earned a bachelor’s degree in computer systems in business from Ohio University. He received an MBA from Northwestern University’s J.L. Kellogg Graduate School of Management.  

 

Jason Few will serve on the Company’s Audit and Finance Committee and Compensation Committee.

 

About Christina Lampe-Onnerud

 

Christina Lampe-Onnerud, 51, is Co-founder, Chairman and Chief Executive Officer of Cadenza Innovation, Inc., an award-winning provider of safe, low cost, high-performance lithium-ion-based (Li-ion) energy storage technology platforms for license to battery manufacturers. She is a recognized corporate strategist with extensive leadership experience in building technology-based businesses from inception to rapid revenue growth. Christina is also widely acknowledged in the global energy storage industry, with career experience with firms such as Boston-Power, Inc., Arthur D. Little, Inc., and Bell Communications Research, Inc. She has extensive global experience, including in the United States, European Union and Asia, and is fluent in Swedish and conversational in German.  Christina is a graduate of Uppsala University in Sweden, where she earned a BS in Chemistry and Calculus, as well as a Ph.D. in Inorganic Chemistry. She is a Post-Doctoral Fellow at MIT in Cambridge, Massachusetts.

 

Christina Lampe-Onnerud will serve on the Company’s Compensation Committee and Nominating and Corporate Governance Committee.

 

FuelCell Energy’s Board regularly evaluates its composition to ensure it includes the appropriate skill, experience and perspective necessary to drive growth of the business and for the shareholders.  With the expansion of the Board and these director additions, FuelCell Energy’s Board of Directors will presently be composed of 8 directors, 6 of which are independent directors.

  

Cautionary Language  

This news release contains forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, including, without limitation, statements with respect to the Company’s anticipated financial results and statements regarding the Company’s plans and expectations regarding the continuing development, commercialization and financing of its fuel cell technology and business plans. 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, changes to projected deliveries and order flow, changes to production rate and product costs, general risks associated with product development, manufacturing, changes in the regulatory environment, customer strategies, unanticipated manufacturing issues that impact power plant performance, changes in critical accounting policies, potential volatility of energy prices, rapid technological change, competition, and the Company’s ability to achieve its sales plans and cost reduction targets, as well as other risks set forth in the Company’s filings with the Securities and Exchange Commission. The forward-looking statements contained herein speak only as of the date of this press release. The Company expressly disclaims any obligation or undertaking to release publicly any updates or

 

 

revisions to any such statement to reflect any change in the Company’s expectations or any change in events, conditions or circumstances on which any such statement is based.

 

About FuelCell Energy

FuelCell Energy, Inc. (NASDAQ: FCEL) delivers efficient, affordable and clean solutions for the supply, recovery and storage of energy.  We design, manufacture, undertake project development of, install, operate and maintain megawatt-scale fuel cell systems, serving utilities and industrial and large municipal power users with solutions that include both utility-scale and on-site power generation, carbon capture, local hydrogen production for transportation and industry, and long duration energy storage.  With SureSource™ installations on three continents and millions of megawatt hours of ultra-clean power produced, FuelCell Energy is a global leader in designing, manufacturing, installing, operating and maintaining   environmentally responsible fuel cell power solutions.  Visit us online at www.fuelcellenergy.com and follow us on Twitter @FuelCell_Energy .   

 

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

 

Contact:


Contact:

FuelCell Energy

203.205.2491

ir@fce.com

 

Source: FuelCell Energy

# # # #