Unassociated Document
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 20, 2007
FUELCELL
ENERGY, INC.
(Exact
Name of Registrant as Specified in its Charter)
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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06813
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(Address
of Principal Executive Offices)
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(Zip
Code)
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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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o
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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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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o
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17
CFR
240.13e-4(c))
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Item
1.01. Entry into a Material Definitive Agreement
On
February 7, 2007, FuelCell Energy, Inc. (the “Company”) entered into a certain
Securities Purchase Agreement (“Securities Purchase Agreement”), a copy of which
is attached as Exhibit 4.1 to this Form 8-K, with POSCO Power, a Korean
corporation (“POSCO”). The transactions contemplated by the Securities Purchase
Agreement closed and became effective and enforceable on February 20, 2007.
Set
forth below is a brief description of the material terms of the Securities
Purchase Agreement.
Purchase
of Shares
On
February 20, 2007, POSCO purchased 3,822,630 shares (the “Shares”) of common
stock of the Company having an aggregate value of $29,000,000, pursuant to
the
terms and conditions of the Securities Purchase Agreement. The Company has
agreed to use the proceeds received from the sale of the Shares for working
capital and other general corporate purposes.
Registration
Rights
Pursuant
to the Securities Purchase Agreement, the Company has agreed to provide the
following registration rights to POSCO or its permitted transferee
(“holder”),
(i)
the
Company shall file no later than September 19, 2007 a registration statement
on
Form S-3 to register for resale the Shares,
(ii)
in
the event the registration statement required to be filed pursuant to clause
(i)
above ceases to become effective or fails to cover all the Shares prior to
the
expiration of the Registration Period (defined below), the Company shall file
an
amendment to the registration statement or file a new registration statement
upon the request of a holder to cover all the Shares, and
(iii)
if,
at any time prior to the expiration of the Registration Period (defined below),
the registration statement required to be filed pursuant to clause (i) above
fails to cover all the Shares and the Company proposes to file a separate
registration statement, the Company shall include, at holder’s request, the
uncovered Shares in such registration statement.
Failure
of the Company to file, obtain and maintain effectiveness of a registration
statement, will entitle the holder to receive cash damages in an amount to
be
calculated for each unregistered Share as set forth in the Securities Purchase
Agreement.
The
Company is required to keep each registration statement effective pursuant
to
Rule 415 at all times until the earliest of (i) February 20, 2010; (ii) the
date
as of which the holder of the Shares may sell all of the Shares covered by
such
registration statement without restriction pursuant to Rule 144(k) promulgated
under the Securities Act (or successor thereto) or (iii) the date on which
the
holder shall have sold all the Shares covered by such registration statement
either pursuant to the registration statement or in one or more transactions
in
which the holder obtained unlegended certificates representing the Shares so
purchased in accordance with applicable securities laws (the “Registration
Period”).
The
Company has agreed, upon reasonable notice and during normal business hours,
to
make available for inspection by (i) the holder of the Shares, (ii) any legal
counsel representing such holder and (iii) one firm of accountants or other
agents retained by such holder, all pertinent financial and other records,
and
pertinent corporate documents and properties of the Company which are requested
for any purpose reasonably related to a holder’s registration rights and/or the
Company’s obligations with respect to the holder’s registration rights, subject
to obtaining necessary confidentiality obligations of those inspecting the
Company’s records.
The
Company has agreed to indemnify the holder of the Shares, and the holder has
agreed to indemnify the Company, to the fullest extent permitted by law, against
liabilities, including liabilities under the Securities Act and state securities
laws, relating to the registration of the Shares.
The
Company has agreed to bear all of the expenses in connection with the
registration and sale of the Shares, except for underwriting discounts and
commissions.
Lock-Up
POSCO
agreed the it will not, for a period of six months following February 20, 2007,
offer, sell, contract to sell, pledge, grant any option to purchase, make any
short sale or otherwise dispose of any Shares, or any securities convertible
into, exchangeable for or that represent the right to receive the Shares,
whether now owned or hereinafter acquired, owned directly by POSCO or with
respect to which POSCO has beneficial ownership within the rules and regulations
of the SEC.
Item
3.02. Unregistered Sales of Equity Securities
The
information described above under Item 1.01 is hereby incorporated herein by
reference as applicable.
On
February 20, 2007, the Company issued an aggregate of 3,822,630
shares of common stock for an aggregate purchase price of $29,000,000, in
reliance on the exemption provided by Section 4(2) of the Securities Act and/or
Regulation D promulgated under the Securities Act, or Regulation S thereunder.
The Company is relying upon the truth and accuracy of, and POSCO’s compliance
with, the representations, warranties, agreements, acknowledgments and
understandings of POSCO set forth in the Securities Purchase Agreement in order
to determine the availability of such exemptions and the eligibility of POSCO
to
acquire the Shares.
Item
9.01. Financial Statements and Exhibits.
Exhibit
No.
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Description
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4.1 |
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Securities
Purchase Agreement dated as of February 7, 2007 by and between
FuelCell
Energy, Inc. and POSCO
Power.
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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.
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FUELCELL
ENERGY, INC.
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Date: February
23, 2007
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By: |
/s/
Joseph G. Mahler
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Joseph
G. Mahler
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Senior
Vice President, Chief Financial Officer,
Corporate
Secretary and Treasurer
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EXHIBIT
INDEX
Exhibit
No.
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Description
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4.1
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Securities
Purchase Agreement dated as of February 7, 2007 by and between FuelCell
Energy, Inc. and POSCO Power.
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