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): February 19, 2020
FUELCELL ENERGY, INC.
(Exact Name of Registrant as Specified in its Charter)
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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) |
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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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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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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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:
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Title of each class |
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Trading Symbol(s) |
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Name of each exchange on which registered |
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Common Stock, $0.0001 par value per share |
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FCEL |
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The Nasdaq Stock Market LLC
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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. ☐
As previously disclosed, from approximately 2007 through 2015, FuelCell Energy, Inc. (the “Company”), through a series of manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012 (the “License Agreements”), relied on POSCO Energy Co., Ltd. (“POSCO Energy”) to develop and grow the South Korean and Asian markets for the Company’s fuel cell products and services. While the License Agreements remain in effect, due to certain actions and inactions of POSCO Energy, the Company has not realized any material revenues, royalties or new projects developed by POSCO Energy since 2016.
Also as disclosed in the Company’s most recent Annual Report on Form 10-K for the fiscal year ended October 31, 2019, in November 2019, POSCO Energy spun-off its fuel cell business into a new entity, Korea Fuel Cell, Ltd. (“KFC”). As part of the spin-off, POSCO Energy transferred manufacturing and service rights under the License Agreements to KFC, but retained distribution rights, including trademarks, and severed its own liability under the License Agreements. We believe that these actions are all in material breach of the terms of the License Agreements and are effectively a misappropriation of the Company’s intellectual property. We have previously formally objected to POSCO Energy’s spin-off, and POSCO Energy has posted a bond to secure any liabilities to the Company arising out of the spin-off.
On February 19, 2020, the Company, through its Korean counsel, notified POSCO Energy in writing that it is in material breach of its obligations under the License Agreements by (i) its actions in connection with the spin-off of the fuel cell business to KFC, (ii) its suspension of performance through its cessation of all sales activities since late 2015 and its abandonment of its fuel cell business in Asia, and (iii) its disclosure of material nonpublic information to third parties and its public pronouncements about the fuel cell business on television and in print media that have caused reputational damage to the fuel cell business, the Company and its products. The Company also notified POSCO Energy that, under the terms of the License Agreements, it has 60 days to fully cure its breaches to the Company’s satisfaction and that failure to cure will lead to termination of the License Agreements.
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: February 21, 2020 |
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By: |
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/s/ Michael S. Bishop |
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Michael S. Bishop |
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Executive Vice President, Chief Financial Officer and Treasurer |