8-K

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 9, 2021

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 8.01. Other Events.

On February 9, 2021, FuelCell Energy, Inc. (the “Company”) filed a prospectus supplement (the “Prospectus Supplement”) to the prospectus dated December 1, 2020, included as part of a Registration Statement on Form S-3 (Registration No. 333-251054), relating to the offer and sale by the Company of up to 964,128 shares of its common stock issuable from time to time upon the exercise of the Series C warrants to purchase common stock previously issued by the Company on May 3, 2017, pursuant to a prospectus dated February 24, 2017 and a related prospectus supplement dated April 28, 2017 (the “Registered Warrants”). The Registered Warrants have an exercise price of $19.20 per share and a term of five years from the date of issuance.

J.P. Morgan Securities LLC, the sole book-running manager for the Company’s common stock offering that closed on December 4, 2020, is waiving certain lock-up restrictions entered into in connection with that offering with respect to the Prospectus Supplement and the shares issuable upon exercise of the Registered Warrants to allow the Company to file the Prospectus Supplement and to continue to offer and sell the shares of common stock issuable upon exercise of the Registered Warrants.

The legal opinion of Foley & Lardner LLP relating to the issuance and sale of the shares of common stock issuable upon exercise of the Registered Warrants is attached as Exhibit 5.1 to this Current Report on Form 8-K.

This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any offer, solicitation or sale of securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or other jurisdiction.

Item 9.01.Financial Statements and Exhibits.

(d)  Exhibits:

Exhibit No.	Description
5.1	Legal Opinion of Foley & Lardner LLP.
23.1	Consent of Foley & Lardner LLP (included in Exhibit 5.1).
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:  February 9, 2021	By:	/s/ Michael S. Bishop
		Michael S. Bishop
		Executive Vice President, Chief Financial Officer and Treasurer

EX-5.1

  Exhibit 5.1     ATTORNEYS AT LAW 111 Huntington Avenue Boston, Massachusetts  02199 617.342.4000 TEL 617.342.4001 FAX www.foley.com   CLIENT/MATTER NUMBER 106876-0129

February 9, 2021

FuelCell Energy, Inc.

3 Great Pasture Road

Danbury, Connecticut 06810

Ladies and Gentlemen:

We have acted as counsel to FuelCell Energy, Inc., a Delaware corporation (the “Company”), in connection with the preparation and filing of a Prospectus Supplement dated February 9, 2021 (the “Prospectus Supplement”) to the Prospectus dated December 1, 2020 (the “Prospectus”), included as part of a Registration Statement on Form S-3 (Registration No. 333-251054) filed by the Company (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”).  The Prospectus Supplement relates to the offer and sale by the Company of up to 964,128 shares of common stock, par value $0.0001 per share, of the Company (the “Shares”) issuable upon the exercise of the Series C warrants previously issued and sold by the Company (the “Warrants”).

In connection with our representation of the Company, and as a basis for the opinions set forth herein, we have examined: (a) the Registration Statement, the Prospectus and the Prospectus Supplement; (b) the Certificate of Incorporation of the Company, as amended to date; (c) the Amended and Restated By-laws of the Company; (d) the Warrants; (e) resolutions adopted or approved by the Company’s Board of Directors relating to the registration, sale and issuance of the Warrants and the Shares; and (f) such other proceedings, documents and records as we have deemed necessary to enable us to render this opinion. We have also considered such matters of law and of fact, including the examination of originals or copies, certified or otherwise identified to our satisfaction, of such records and documents of the Company, certificates of officers of the Company, certificates of public officials, and such other documents as we have deemed appropriate as a basis for the opinions set forth below. In our examination of the above-referenced documents, we have assumed the genuineness of all signatures, the legal capacity and competency of all natural persons,the authenticity of all documents, certificates and instruments submitted to us as originals and the conformity with the originals of all documents, certificates and instruments submitted to us as copies.

Our opinions expressed herein are limited to the General Corporation Law of the State of Delaware, and we express no opinion as to the laws of any other jurisdiction.

Based upon the foregoing examination and in reliance thereon, and subject to the assumptions, limitations and qualifications stated herein, and in reliance on the statements of fact contained in the documents that we have examined, we are of the opinion that the Shares are duly authorized, and when

AUSTIN Boston CHICAGO dallas DENVER DETROIT houston JACKSONVILLE LOS ANGELES MADISON MEXICO CITY MIAMI MILWAUKEE NEW YORK ORLANDO SACRAMENTO SAN DIEGO SAN FRANCISCO SILICON VALLEY TALLAHASSEE TAMPA WASHINGTON, D.C. BRUSSELS TOKYO

4846-3877-3978.1

February 9, 2021

Page

issued in accordance with the terms of the Warrants, including payment in full to the Company of the exercise price as required thereunder, will be validly issued, fully paid and nonassessable.

This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.

We hereby consent to the filing of this opinion letter in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act as Exhibit 5.1 to the Company’s Current Report on Form 8-K to be filed with the Securities and Exchange Commission (the “Commission”) on the date hereof (and its incorporation by reference into the Registration Statement and the Prospectus Supplement) and to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement. In giving our consent, we do not admit that we are “experts” within the meaning of Section 11 of the Securities Act or within the category of persons whose consent is required by Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.

Very truly yours,

/s/ Foley & Lardner LLP

4846-3877-3978.1

XML

Cover	Feb. 09, 2021
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Feb. 09, 2021
Entity File Number	1-14204
Entity Registrant Name	FUELCELL ENERGY, INC.
Entity Central Index Key	0000886128
Entity Tax Identification Number	06-0853042
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	3 Great Pasture Road
Entity Address, City or Town	Danbury
Entity Address, State or Province	CT
Entity Address, Postal Zip Code	06810
City Area Code	203
Local Phone Number	825-6000
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.0001 par value per share
Trading Symbol	FCEL
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false