UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

FORM 10-K

 

ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the fiscal year ended October 31, 20182019

OR

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                     to

Commission file number: 1-14204

 

FUELCELL ENERGY, INC.

(Exact name of registrant as specified in its charter)

 

 

Delaware

 

06-0853042

(State or other jurisdiction of

 

(I.R.S. Employer

incorporation or organization)

 

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

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)

 

Securities registered pursuant to Section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes No

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Exchange Act. Yes No

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes No

Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes No

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer 

 

Accelerated filer 

 

Non-accelerated filer 

 

Smaller reporting company 

 

 

 

 

 

 

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.  

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes No

As of April 30, 2018,2019, the aggregate market value of the registrant’s common stock held by non-affiliates of the registrant was $156,140,974$42,440,268 based on the closing sale price of $1.86$3.12 as reported on the NASDAQ Global Market.

Indicate the number of shares outstanding of each of the registrant’s classes of common stock, as of the latest practicable date.

 

Class

 

Outstanding at January 4, 201914, 2020

Common Stock, $0.0001 par value per share

 

103,898,960210,965,999

DOCUMENT INCORPORATED BY REFERENCE

 

Document

 

Parts Into Which Incorporated

Definitive Proxy Statement for the Annual2020Annual Meeting of Stockholders to be held April 4, 2019

 

Part III

 


 

FUELCELL ENERGY, INC.

INDEX

 

 

 

Page

Description

 

Number

Part I

 

 

 

 

 

Item 1 Business

 

3

 

 

 

Item 1A Risk Factors

 

2932

 

 

 

Item 1B Unresolved Staff Comments

 

4751

 

 

 

Item 2 Properties

 

4751

 

 

 

Item 3 Legal Proceedings

 

4751

 

 

 

Item 4 Mine Safety Disclosures

 

4751

 

 

 

Part II

 

 

 

 

 

Item 5 Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities

 

4852

 

 

 

Item 6 Selected Financial Data

 

5954

 

 

 

Item 7 Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

6256

 

 

 

Item 7A Quantitative and Qualitative Disclosures About Market Risk

 

8792

 

 

 

Item 8 Consolidated Financial Statements and Supplementary Data

 

8893

 

 

 

Item 9 Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

132152

 

 

 

Item 9A Controls and Procedures

 

132152

 

 

 

Item 9B Other Information

 

133153

 

 

 

Part III

 

 

 

 

 

Item 10 Directors, Executive Officers and Corporate Governance

 

134156

 

 

 

Item 11 Executive Compensation

 

134156

 

 

 

Item 12 Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

 

134156

 

 

 

Item 13 Certain Relationships and Related Transactions, and Director Independence

 

135156

 

 

 

Item 14 Principal Accounting Fees and Services

 

135157

 

 

 

Part IV

 

 

 

 

 

Item 15 Exhibits and Financial Statement Schedules

 

135157

 

 

 

Item 16 Form 10-K Summary

 

142168

 

 

 

Signatures

 

143169

 

 

 


PART I

Item 1.

BUSINESS

 

Index to Item 1. BUSINESS

 

Page

 

 

 

Forward-Looking Statement Disclaimer

 

4

 

 

 

Background

 

5

 

 

 

Additional Technical Terms and Definitions

 

6

 

 

 

Overview

 

7

 

 

 

Products

9

Advanced Technology Programs

11

Business Strategy

 

814

 

 

 

Markets

 

11

Products

1217

 

 

 

Manufacturing and Service Facilities

 

1518

Raw Materials and Supplier Relationships

19

Engineering, Procurement and Construction

19

 

 

 

Services and Warranty Agreements

 

1720

 

 

 

License Agreements and Royalty Income, Relationship with POSCO Energy

 

17

Advanced Technology Programs (Third Party Funded Research and Development)

1820

 

 

 

Company Funded Research and Development

 

1921

 

 

 

Backlog

 

2022

 

 

 

Fuel Cell Technologies

 

2023

 

 

 

Competition

 

2124

 

 

 

Regulatory and Legislative SupportEnvironment

 

2225

 

 

 

Government Regulation

 

2326

 

 

 

Proprietary Rights and Licensed Technology

 

2326

 

 

 

Significant Customers and Information about Geographic Areas

 

2427

 

 

 

Sustainability

 

2528

 

 

 

Associates

 

2629

 

 

 

Available Information

 

2629

 


Forward-Looking Statement Disclaimer

This Annual Report on Form 10-K contains statements that the Company believes to be “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact included in this Form 10-K, including statements regarding the Company’s future financial condition, results of operations, business operations and business prospects, are forward-looking statements.  Words such as “expects,” “anticipates,” “estimates,” “projects,” “intends,” “plans,” “believes,” “predicts,” “should,” “will,” “could,” “would,” “may,” “forecast,” and similar expressions and variations of such words are intended to identify forward-looking statements. Such statements relate to, among other things, the following:

the development and commercialization by FuelCell Energy, Inc. and its subsidiaries (“FuelCell Energy,” “Company,” “we,” “us” and “our”) of fuel cell technology and products and the market for such products,

expected operating results such as revenue growth and earnings,

our belief that we have sufficient liquidity to fund our business operations for the next 12 months,

future funding under Advanced Technologies contracts,

future financing for projects, including publicly issued bonds, equity and debt investments by investors and commercial bank financing,

the expected cost competitiveness of our technology, and

our ability to achieve our sales plans, market access and market expansion goals, and cost reduction targets.

The forward-looking statements contained in this report are subject to risks and uncertainties, known and unknown, that could cause actual results to differ materially from those forward-looking statements, including, without limitation, the risks contained under Item 1A - Risk Factors of this report and the following:

general risks associated with product development and manufacturing,

general economic conditions,

changes in the utility regulatory environment,    

changes in the utility industry and the markets for distributed generation, distributed hydrogen, and carbon capture configured fuel cell power plants,

potential volatility of energy prices,

availability of government subsidies and economic incentives for alternative energy technologies,

our ability to remain in compliance with U.S. federal and state and foreign government laws and regulations and the listing rules of The Nasdaq Stock Market (“Nasdaq”),

rapid technological change,

competition,

our dependence on strategic relationships,

market acceptance of our products,

changes in accounting policies or practices adopted voluntarily or as required by accounting principles generally accepted in the United States,

factors affecting our liquidity position and financial condition,

government appropriations,

the ability of the government to terminate its development contracts at any time,

the ability of the government to exercise “march-in” rights with respect to certain of our patents,


 

recent developmentsthe situation with POSCO Energy which mayhas limited and continues to limit our efforts to access the South Korean and Asian markets and could expose us to costs of arbitration or litigation proceedings,

our ability to implement our strategy,

our ability to reduce our levelized cost of energy and our cost reduction strategy generally,

our ability to protect our intellectual property,

litigation and other proceedings,

the risk that commercialization of our products will not occur when anticipated,

our need for and the availability of additional financing,

our ability to generate positive cash flow from operations,

our ability to service our long-term debt,

our ability to increase the output and longevity of our power plants, and

our ability to expand our customer base and maintain relationships with our largest customers and strategic business allies.

We cannot assure you that:

we will be able to meet any of our development or commercialization schedules,

we will be able to remain in compliance with the minimum bid price requirement of the Nasdaq listing rules,

any of our new products or technology, once developed, will be commercially successful,

our existing SureSource power plants will remain commercially successful,

the government will appropriate the funds anticipated by us under our government contracts,

the government will not exercise its right to terminate any or all of our government contracts, or

we will be able to achieve any other result anticipated in any other forward-looking statement contained herein.

The forward-looking statements contained herein speak only as of the date of this report and readers are cautioned not to place undue reliance on these forward-looking statements. Except for ongoing obligations to disclose material information under the federal securities laws, we expressly disclaim any obligation or undertaking to release publicly any updates or revisions to any such statement to reflect any change in our expectations or any change in events, conditions or circumstances on which any such statement is based.

Background

Information contained in this report concerning the electric power supply industry and the distributed generation market, our general expectations concerning this industry and this market, and our position within this industry are based on market research, industry publications, other publicly available information and assumptions made by us based on this information and our knowledge of this industry and this market, which we believe to be reasonable.  Although we believe that the market research, industry publications and other publicly available information, including the sources that we cite in this report, are reliable, they have not been independently verified by us and, accordingly, we cannot assure you that such information is accurate in all material respects.  Our estimates, particularly as they relate to our general expectations concerning the electric power supply industry and the distributed generation market, involve risks and uncertainties and are subject to change based on various factors, including those discussed under Item 1A - Risk Factors of this report.


As used in this report, all degrees refer to Fahrenheit (“F”); kilowatt (“kW”) and megawatt (“MW”) numbers designate nominal or rated capacity of the referenced power plant; “efficiency” or “electrical efficiency” means the ratio of the electrical energy generated in the conversion of a fuel to the total energy contained in the fuel (lower heating value, the standard for power plant generation, assumes the water in the product is in vapor form; as opposed to higher


heating value, which assumes the water in the product is in liquid form, net of parasitic load); kW means 1,000 watts; MW means 1,000,000 watts; “kilowatt hour” (“kWh”) is equal to 1kW of power supplied to or taken from an electric circuit steadily for one hour; and one British Thermal Unit (“Btu”) is equal to the amount of heat necessary to raise one pound of pure water from 59oF to 60oF at a specified constant pressure.

All dollar amounts are in U.S. dollars unless otherwise noted.

Additional Technical Terms and Definitions

Advanced Technologies - Advanced Technologies projects involve the development of new products or applications based on existing carbonate technologyor solid oxide technologies or new electrochemical technologies.  Examples are carbon capture, distributed hydrogen, solid oxide fuel cells and solid oxide electrolysis cell technologies.  Advanced Technologies projects are typically externally funded by government or private sources and executed by our Advanced Technologies Group.

Availability - A measure of the amount of time a system is available to operate, as a fraction of total calendar time.  For power generation equipment, an industry standard (IEEE (The Institute of Electrical and Electronics Engineers) 762, “Definitions for Use in Reporting Electric Generating Unit Reliability, Availability and Productivity”) is used to compute availability. “Availability percentage” is calculated as total period hours since Commercial Operations Date less hours not producing electricity due to planned and unplanned maintenance divided by total period hours. Grid disturbances, force majeure events and site specific issues such as a lack of available fuel supply or customer infrastructure repair do not penalize the calculation of availability according to this standard.

Carbonate Fuel Cell (“CFC”) - Carbonate fuel cells, such as the fuel cell power plants produced and sold by FuelCell Energy, are high-temperature fuel cells that use an electrolyte composed of a carbonate salt mixture suspended in a porous, chemically inert ceramic-based matrix. CFCs operate at high temperatures, enabling the use of a nickel-based catalyst, a lower cost alternative to precious metal catalysts used in some other fuel cell technologies.

Combined Heat & Power (“CHP”) - A power plant configuration or mode of operation featuring simultaneous on-site generation from the same unit of fuel of both electricity and heat with the heat used to produce steam, hot water or heated air for both heating and cooling applications.

Commercial Operations Date (“COD”) - The date that testing and commissioning of a fuel cell project is completed and the fuel cell power plant is operational with power being generated and sold to the end-user.

Distributed Generation - Electric power that is generated where it is needed (distributed throughout the power grid) rather than from a central location. Centrally generated power requires extensive transmission networks that require maintenance and experience efficiency losses during transmission while distributed generation does not.  Distributed generation is typically classified as small to mid-size power plants, typically generating 75 MW or less.  Central generation is typically classified as large power plants generating hundreds or even thousands of MW.

Micro-gridsMicrogrids - Micro-gridsMicrogrids are localized electric grids that can disconnect from the traditional electric grid to operate autonomously and strengthen grid resiliency.  Micro-gridsMicrogrids can be composed only of SureSource power plants due to their continual power output or combine a variety of power generation types such as fuel cells and solar arrays.

Nitrogen Oxides (“NOx”) - Generic term for a group of highly reactive gases, all of which contain nitrogen and oxygen in varying amounts. Many of the NOx are colorless and odorless; however, they are a major precursor to smog production and acid rain. One common pollutant, Nitrogen Dioxide, along with particles in the air, can often be seen as a reddish-brown layer over manyan urban areas.area. NOx form when fuel is burned at high temperatures, as in a combustion process. The primary manmade sources of NOx are motor vehicles, traditional fossil-fuelfossil fuel fired electric utility generation, and other industrial, commercial and residential sources that burn fuels.


Particulate Matter(“PM”) - Solid or liquid particles emitted into the air that are generally caused by the combustion of materials or dust generating activities. Particulate matter caused by combustion can be harmful to humans as the fine particles of chemicals, acids and metals may get lodged in lung tissue.


Power Purchase Agreement (“PPA”) - A Power Purchase Agreement is a contract that enables a power user to purchase energy under a long-term contract where the user agrees to pay a predetermined rate for the kilowatt-hours delivered from a power generating asset while avoiding the need to own the equipment and pay the upfront capital cost.  The PPA rate is typically fixed (with an escalation clause tied to a consumer price index or similar index), or pegged to a floating index that is on par with or below the current electricity rate being charged by the local utility company, andcompany. A PPA is typically for a term of 10 to 20 years.

Renewable Biogas or Biogas - Renewable biogasBiogas is fuel produced by biological breakdown of organic material.  Biogas is commonly produced in biomass digesters employing bacteria in a heated and controlled oxygen environment.  These digesters are typically used at wastewater treatment facilities or food processors to break down solid waste and the biogas produced is a byproduct of the waste digestion. Biogas can be used as a renewable fuel source for SureSource fuel cell plants located on site where the biogas is produced with gas cleanup, or it can be processed further to meet pipeline fuel standards and injected into a gas pipeline network, which is termed Directed Biogas.  Directed Biogas requires additional processing to increase the Btu content of the gas, which increases cost and consumes power.  Use of Biogas at the point of production (on-site) is more efficient and more economical.  

Solid Oxide Electrolysis Cell (“SOEC”) - Solid Oxide Electrolysis Cells are electrochemical cells with the same cell and stack structure as Solid Oxide Fuel Cells, but are operated in reverse – instead of producing power from fuel and oxygen, SOEC cells produce hydrogen and oxygen from steam when supplied with power. The Solid Oxide Fuel Cell platform can be operated in fuel cell mode (producing power from fuel) or electrolysis mode (producing hydrogen from power) and can alternate between the two.

Solid Oxide Fuel Cell (“SOFC”) - Solid Oxide Fuel Cells are electrochemical cells with a non-porous ceramic material as the electrolyte. SOFCs operate at high temperatures (slightly higher than carbonate fuel cells) eliminating the need for costly precious-metal catalysts, thereby reducing cost. Like carbonate fuel cells, the high operating temperature enables internal reforming of the hydrogen rich fuel source. The Solid Oxide Fuel Cell platform can be operated in fuel cell mode (producing power from fuel) or electrolysis mode (producing hydrogen from power) and can alternate between the two.

Sulfur Oxide (“SOx”) - Sulfur oxide refers to any one of the following: sulfur monoxide, sulfur dioxide (“SO2”) and sulfur trioxide. SO2 is a byproduct of various industrial processes. Coal and petroleum contain sulfur compounds, and generate SO2 when burned.  SOx compounds are particulate and acid rain precursors.

Overview

FuelCell Energy, based in Connecticut, was founded in 1969 as a New York corporation to provide applied research and development services on a contract basis. We completed our initial public offering in 1992 and reincorporated in Delaware in 1999.  We began selling stationary fuel cell power plants commercially in 2003.

With more than 9.5 million megawatt hours of clean electricity produced, FuelCell Energy is now a global leader in delivering environmentally-responsible distributed baseload power solutions through our proprietary, molten-carbonate fuel cell technology. Today, we develop turn-key distributed power generation solutions and operate and provide comprehensive service for the life of the power plant. We are working to expand the proprietary technologies that we have developed over the past five decades into new products, markets and geographies.

Fiscal year 2019 was one of transformation for FuelCell Energy. We restructured our management team and our operations in ways that are intended to support our growth and achieve our profitability and sustainability goals. We raised capital under our at-the-market sales plan, which allowed us to pay down our accounts payable and stay current on our forbearance agreements.  We repaid a substantial portion of our short-term debt, retired our Series C and Series D Convertible Preferred Stock obligations, and refocused on our core competencies in an effort to drive top-line revenue. We believe we have emerged from a difficult fiscal 2019 as a stronger company, better positioned to execute on our business plan. Our recent achievements, accomplished during one of the most stressful times in the Company’s history, include: (a) closing on a new $200 million credit facility with Orion Energy Partners Investment Agent, LLC and certain of its affiliated lenders (“Orion Energy Partners”), (b) executing a new Joint Development Agreement with ExxonMobil Research and Engineering Company (“EMRE”), with anticipated revenues of up to $60 million, (c)


restructuring our business to realize annualized operating savings of approximately $15 million, (d) making progress in constructing certain projects in our backlog, including the Connecticut Municipal Electric Energy Cooperative (“CMEEC”) project at the U.S. Navy base in Groton, Connecticut and the commissioning and startup of the 2.8 MW Tulare BioMAT project in California, (e) relaunching our sub-megawatt product in Europe, (f) executing a strategic relationship with E.On Business Solutions, an affiliate of one of the largest utilities in the world, to market and distribute our products beyond the two FuelCell operating plants E.On already owns, (g) extending the maturity of the Class A Cumulative Redeemable Exchangeable Preferred Shares issued by FCE FuelCell Energy Ltd. (the “Series 1 Preferred Shares”) by one year, and (h) concluding our engagement with Huron Consulting Services, LLC (“Huron Consulting”) after successful restructuring and payoff of our prior senior secured credit facility.

We will use this new focus coming out of our restructuring to advance our core goals of:

Executing on our backlog and new project awards;

Growing our generation portfolio;

Competing for and winning new business around the world; and

Developing and commercializing our Advanced Technologies platform of products.

In order to achieve our core goals, we will focus in 2020 on implementing our new “Powerhouse” business strategy to strengthen our business, maximize operational efficiencies and position us for future growth. The “Powerhouse” business strategy is focused on three fundamental pillars – Transform, Strengthen, Grow – which are described in further detail below.

Transform

We spent the latter half of fiscal 2019 working on and achieving the following:

Restructured our management team: We appointed a new President, Chief Executive Officer and Chief Commercial Officer, Jason Few, to lead our organization, and promoted Michael Lisowski to the positions of Executive Vice President and Chief Operating Officer and Anthony Leo to the positions of Executive Vice President and Chief Technology Officer. Together with our Executive Vice President and Chief Financial Officer, Michael Bishop, and our Executive Vice President, General Counsel, Chief Administrative Officer and Corporate Secretary, Jennifer Arasimowicz, we believe that this executive management team is well positioned to execute on our new “Powerhouse” business strategy.    

Secured funding:  Closed on a $200 million senior secured credit facility with Orion Energy Partners to support execution of our current projects and provide balance sheet strength and liquidity.

Restructured organization:  Concluded our engagement with Huron Consulting after successful restructuring and payoff of our prior senior secured credit facility.

Delivered cost savings:  Realized annualized operating savings of approximately $15 million through the restructuring of our business.

Refinanced debt:  Repaid a substantial portion of our short-term debt with funds from a combination of sales of our common stock under our at-the-market sales plan and our long-term credit facility with Orion Energy Partners.

Strengthen

Capital deployment:  Continue to focus on disciplined capital deployment and obtaining lower-cost, long-term financing for completed generation projects.

Commercial excellence:  Strengthen customer relationships and build a customer-centric reputation.

Operational excellence:  Implement a rigorous approach to executing and delivering our backlog on-time and on-budget.

Cost reductions:  Focus on continued lean resource management and cost reduction opportunities.


Focused Execution: Continue to develop and define a clear strategic roadmap for the Company.

Grow

Sales growth:  Increase product sales to key strategic customers, and grow service revenue through pricing strategy, reducing the cost of ownership for our customers and enhancing service solutions, including long duration energy storage.

Innovation:  Increase length of product life and product reliability, and expand commercialization of new technologies such as carbon capture, hydrogen, biofuels, and solid oxide systems.

Segment leadership: Capitalize on our expertise in the key addressable markets of biofuels, microgrid development, and hydrogen economy expansion for industry, transportation and electric power generation.

Geographic and market expansion: Continue to develop new clean and renewable energy partnerships to advance carbon capture, hydrogen and multi-fuel/biofuel technology, and pursue growth in global markets.

Our mission and purpose isremains to utilize our proprietary, state-of-the-art fuel cell power plants to providereduce the global environmental footprint of baseload power generation by providing environmentally responsible solutions for variousreliable electrical power, hot water, steam, chilling, hydrogen, microgrid applications, and carbon capture and, in so doing, drive demand for our products and services, thus realizing positive stockholder returns.

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 utility-scalesolar and on-site power generation, carbon capture, local hydrogen production for both transportation and industry, and long duration energy storage.wind turbines.  Our systems cater toanswer the needs of diverse customers across several industries,markets, including utility companies, municipalities, universities, hospitals, government entities and a variety of industrial and commercial enterprises.  WithWe provide solutions for various applications, including utility-scale distributed generation, on-site power generation and combined heat and power, with the differentiating ability to do so utilizing multiple sources of fuel including natural gas, Renewable Biogas (i.e., landfill gas, anaerobic digester gas), propane and various blends of such fuels. Our multi-fuel source capability is significantly enhanced by our proprietary gas-clean-up skid.

Products

Our core fuel cell products offer clean, highly efficient and affordable power generation for customers, including the sub-megawatt SureSource 250TM and SureSource 400TM in Europe, and the 1.4 MW SureSource 1500TM, the 2.8 MW SureSource 3000TM, and the 3.7 MW SureSource 4000TM globally.  The plants are scalable for multi-megawatt utility applications, microgrid applications, distributed hydrogen, or on-site CHP generation for a broad range of applications.  

The global SureSource product line is uniformly based on the same carbonate fuel cell technology.  Using a standard design globally enables supply chain volume-based cost reduction, optimal resource utilization and long-life product enhancements.  Our power plants utilize a variety of available fuels to produce electricity electrochemically, in a process that is highly efficient, quiet, and produces virtually none of the particulate pollutants associated with traditional combustion-based power generation solutions. In addition to electricity, our standard fuel cell configuration produces high quality thermal energy (approximately 700° F), suitable for heating facilities or water, or steam for industrial processes or for absorption cooling.  When configured for CHP, our system efficiencies can potentially reach up to 90%, depending on the application.  When configured for distributed hydrogen our plants produce hydrogen in addition to power, with an effective efficiency (counting the fuel that would have been used to produce hydrogen conventionally) of up to 80% before considering waste heat utilization, which can raise the total efficiency even higher.

Our proprietary carbonate fuel cell technology generates electricity directly from a fuel, such as natural gas or Renewable Biogas, by reforming the fuel inside the fuel cell to produce hydrogen. This internal, proprietary “one-step” reforming process results in a simpler, more efficient, and cost-effective energy conversion system compared with external reforming fuel cells.  Additionally, natural gas has an established infrastructure and is readily available in our existing and target markets compared to some types of fuel cells that can only operate on high purity hydrogen, and Biogas is rapidly growing in production around the world. Our products are fuel flexible, and mainly utilize clean natural gas and Renewable Biogas generated by the customer on-site or directed Biogas generated at a distant location and transported via the existing common carrier gas pipeline networks. The unique chemistry of our Carbonate Fuel Cells allows them to directly use low Btu on-site Biogas with no reduction in output or efficiency compared to


operation on natural gas.  We have developed proprietary Biogas cleanup and contaminant monitoring equipment which, combined with the inherent suitability of the Carbonate Fuel Cell chemistry, gives us an advantage in on-site Biogas applications.  Our SureSource 1500 and SureSource 3000 power plants are the only systems certified to California Air Resource Board (“CARB”) emissions standards under the Distributed Generation Certification Program for operation with on-site Biogas. In addition, we have demonstrated operation of our carbonate fuel cell technology with other fuel sources including coal syngas and propane.

Our fuel cells operate at approximately 1,100° F. A key advantage of high temperature fuel cells is that they do not require the use of precious metal electrodes required by lower temperature fuel cells, such as proton-exchange membrane (“PEM”) fuel cells.  As a result, we are able to use less expensive and readily available industrial metals, primarily nickel and stainless steel, as catalysts for our fuel cell components. Another key advantage of our fuel cell design is that they are easily sited with a relatively small footprint given the amount of power produced. There is minimal noise produced by the mechanical balance of plant (“BOP”) and a clean emissions profile, making our fuel cells ideally suited for urban and in building suburban applications at or near the point of energy consumption.

We market different configurations and applications of our SureSource plants to meet specific market needs, including:

On-Site Power (Behind the Meter):  Customers benefit from improved power reliability and energy security from on-site power that reduces reliance on the electric grid in an environmentally responsible manner.  Utilization of the high quality thermal energy produced by the fuel cell in a CHP configuration supports economic and sustainability goals by lessening or even avoiding the need for combustion-based boilers for heat and its associated cost, pollutants and carbon emissions.  Heat can be used to produce hot water or steam or to drive high efficiency absorption chillers for cooling applications.

Utility Grid Support: Our SureSource power plants are scalable, which enables siting multiple fuel cell power plants together in a fuel cell park.  Fuel cell parks enable utilities to add clean and continuous multi-megawatt power generation on a very small footprint when and where needed and enhance the resiliency of the electric grid by reducing reliance on large central generation plants and the associated transmission system. Consolidating certain equipment for multiple plants, such as fuel processing, reduces the cost per megawatt hour for fuel cell parks compared to individual fuel cell power plants.  Deploying our SureSource power plants throughout a utility service territory can also help utilities comply with government-mandated clean energy regulations, meet air quality standards, maintain continuous power output and improve grid reliability.  Our fuel cells can  firm-up the total utility power generation solution when combined with intermittent power generation, such as solar or wind, or less efficient combustion-based equipment that provides peaking or load following power.

Higher Electrical Efficiency - Multi-Megawatt Applications:  The SureSource 4000 is designed to extract more electrical power from each unit of fuel with electrical efficiency of approximately 60% and targets applications with large load requirements and limited thermal utilization such as utility/grid support or data centers.  

Microgrid Applications:SureSource plants can also be configured as a microgrid, either independently or with other forms of power generation, to provide continuous power and a seamless transition during times of grid outages.  We have multiple installations serving as examples of our solutions operating within microgrids, some individually and some with other forms of power generation.

In summary, our solutions offer many advantages:

Distributed generation: Generating power near or at the point of use improves power reliability and energy security and lessens the need for costly and difficult-to-site generation and long distance high voltage and distributed transmission infrastructure susceptible to disruption, thus enhancing the resiliency of the grid.

Clean: Our SureSource solutions produce electricity electrochemically − without combustion − directly from readily available fuels such as natural gas and Renewable Biogas in a highly efficient process,


delivering clean baseload energy. The virtual absence of pollutants facilitates siting the power plants in regions with clean air permitting regulations and is an important public health benefit.

Highly efficient: Fuel cells are the most efficient power generation option in their size class, providing the most power from a given unit of fuel, reducing fuel costs. This high electrical efficiency also reduces carbon emissions compared to less efficient combustion-based power generation.

Combined heat and power: Our power plants provide both electricity and usable high quality heat/steam from the same unit of fuel.  The heat can be used for facility heating and cooling or further enhancing the electrical efficiency of the power plant in a combined cycle configuration. When configured for CHP, our system efficiencies can potentially reach up to 90%, depending on the application.

Reliability / continuous operation: Our SureSource power plants improve power reliability and energy security by lessening reliance on the transmission and distribution infrastructure of the electric grid. Unlike solar and wind power, fuel cells are able to operate continuously regardless of weather, time of day, or geographic location.

Fuel flexibility: Our SureSource power plants can operate on a variety of existing and readily available fuels, including natural gas, on-site Renewable Biogas, directed Biogas, flare gas and propane.

Scalability: Our solutions are scalable, providing a cost-effective solution to adding power incrementally as demand grows, such as multi-megawatt fuel cell parks supporting the electric grid and large scale commercial and industrial operations.

Quiet operation: Our SureSource solutions operate quietly and without vibrations because they produce power without combustion and contain very few moving parts, which also enhances reliability.

Easy to site: Our SureSource power plants are relatively easy to site by virtue of their ultra-clean emissions profile, modest space requirements and quiet operation.  These characteristics facilitate the installation of the power plants in urban locations with scarce and expensive land.  A 10 MW fuel cell park only requires about one acre of land whereas an equivalent size solar array requires up to seven-to-ten times as much land, illustrating how fuel cell parks have a much lower environmental impact on land use, and are easy to site in high density areas with constrained land resources and adjacent to the demand source, thereby avoiding costly transmission construction.

Advanced Technologies Programs

Our Advanced Technologies programs, including our carbon capture, local hydrogen production and solid oxide fuel cells and electrolysis for energy storage represent future market, product and revenue opportunities for the Company beyond our current product line. We undertake both privately-funded and public research and development to develop these opportunities, reduce costs, and expand our technology portfolio.

Our multi-featured power plant platforms can be configured to provide a number of value streams, including clean electricity, high quality usable heat, and hydrogen suitable for vehicle fueling, industrial purposes or power generation, and to concentrate CO2 from coal, biomass and natural gas fired power plants and industrial applications.  

We have historically worked on technology development with various U.S. government departments and agencies, including the Department of Energy (“DOE”), the Department of Defense (“DOD”), the Environmental Protection Agency (“EPA”), the Defense Advanced Research Projects Agency (“DARPA”), the Office of Naval Research (“ONR”), and the National Aeronautics and Space Administration (“NASA”). Government funding, principally from the DOE, provided 6%, 8% and 9% of our revenue for the fiscal years ended October 31, 2019, 2018, and 2017, respectively.


Our Advanced Technologies programs are currently focused on commercializing solutions within three strategic areas:

1)

Carbon capture for emissions reduction in traditional fossil fuel fired generation and industrial applications combined with power generation;

2)

Distributed hydrogen production, compression, and recovery; and

3)

SOFC/SOEC for stationary power generation, electrolysis and long duration energy storage.

Carbon Capture – Power generation and industrial applications are the source of two-thirds of the world’s carbon emissions. Coal and natural gas are abundant, low-cost resources that are widely used to generate electricity in developed and developing countries, but burning these fuels, as well as burning biomass, results in the emission of criteria pollutants and CO2. Cost effective and efficient carbon capture from power generation and industrial applications globally represents a large market because it could enable clean use of all available fuels. The SureSource CaptureTM system separates and concentrates CO2 from the flue gases of natural gas, biomass or coal-fired power plants or industrial facilities as a side reaction that extracts and purifies the CO2 in the flue gas during the power generation process and destroys approximately 70% of NOx emissions. The production of additional power during the capture process, as opposed to consuming power, differentiates the SureSource Capture system from all other forms of carbon capture. This could make the SureSource Capture system more cost effective than 8.0 million megawatt hoursother systems which are being considered for carbon capture. SureSource Capture systems can be implemented in increments, managing capital outlay to match decarbonization objectives and regulatory requirements.  Since our solution generates a return on capital resulting from the fuel cell's production of ultra-cleanelectricity rather than an increase in operating expense required by other carbon capture technologies, it can extend the life of existing power plants. We have a joint development agreement with EMRE to develop and commercialize this application of our core technology. See additional discussion concerning our relationship with EMRE under the section below entitled “License Agreements and Royalty Income”. We are also working on a carbon capture project with Drax Power Station, the largest single-site renewable power generator in the United Kingdom.

Distributed Hydrogen Production, Compression, and Recovery - On-site or distributed hydrogen generation, produced FuelCell Energycleanly, represents an attractive and expansive market.  Our high temperature fuel cells generate electricity directly from a fuel by reforming the fuel inside the fuel cell to supply hydrogen for the electrical generation process.  We have developed a process by which gas separation technology can be added to our core fuel cell to capture hydrogen that is not used by the electrical generation process, and we refer to this configuration as SureSource Hydrogen. The SureSource Hydrogen product has the potential to be a compelling solution for industrial users of hydrogen and in transportation fueling applications. The 2.3 MW SureSource Hydrogen plant has a hydrogen output of approximately 1,200 kg per day, in addition to the electricity, thermal energy and water generated by the fuel cell. Hydrogen is typically made from natural gas in large central steam methane reforming (“SMR”) plants. The conventional reforming process involves burning fossil fuel to produce steam and to heat a fuel/steam mixture to a high temperature, which is then passed over a catalyst that converts the methane/water mixture to carbon dioxide and hydrogen.  The need to burn fossil fuel to provide thermal energy produces additional carbon dioxide criteria pollutant emissions, and SMRs are significant water consumers.  A similar, but environmentally sustainable, process happens in SureSource internal reforming: methane (from natural gas or Biogas) reacts with water to produce hydrogen, but, in the internal reforming process, the water and the heat are byproducts of the fuel cell reaction.  There is no need to burn fuel to supply heat, and there is no need to supply water.  In fact, a SureSource Hydrogen plant is a global leader in designing, manufacturing, installing, operatingnet water producer, not a water consumer.  When operated on Biogas, SureSource Hydrogen systems produce renewable hydrogen, but, even when fueled with natural gas, they produce hydrogen with a lower carbon impact than conventional SMR because of the use of internal heat instead of burning fuel.

SOFC/SOEC and maintaining environmentally responsibleEnergy Storage – We are developing a solution for long duration energy storage using our proprietary solid oxide technology.  Our solid oxide stacks are capable of alternating between electrolysis and power generation mode.  Instead of producing power from fuel and air, a solid oxide fuel cell distributedstack in electrolysis mode splits water into hydrogen and oxygen using supplied electricity.  A storage system based on SOFC/SOEC technology will start with stored water, which will be converted to hydrogen during charging by electrolysis in the solid oxide stacks.  The hydrogen is stored as compressed gas in cylinders or underground, creating the ability to produce a virtually limitless supply.  When discharge power solutions.is needed, the stored hydrogen is sent back to the solid oxide stacks, which react it with air to produce power and to regenerate the water, which is stored for the next cycle.

The key aspect of this approach is that the reactant (water) is inexpensive and plentiful.  Long duration storage can be achieved by adding water and hydrogen storage capacity, without the need to add excessive amounts of conventional battery reactants (e.g. Lithium, Cobalt, etc.), which have supply constraints for broad adoption and which present disposal challenges.  Long duration energy storage is going to be required at large scale during time periods ranging from hourly to seasonal in order to manage high penetration of intermittent renewable resources, and this


water/hydrogen based approach of our SOFC/SOEC technology has the potential to be the key enabler of long duration storage.

SOFC power plant design and manufacturing is complementary to our carbonate-based megawatt-scale product line and affords us the opportunity to leverage our field operating history, our existing expertise in power plant design, fuel processing and high volume manufacturing capabilities, and our existing installation and service infrastructure.  Additionally, the target market for storage applications is electric utilities, which is a market in which we are already active.  

We provide comprehensive turn-keyperform SOFC/SOEC research and development at our Danbury, Connecticut headquarters, as well as at our dedicated SOFC/SOEC facility in Calgary, Alberta, Canada.  We are working under a variety of awards from the DOE for development and commercialization of both SOFC and SOEC, and, during fiscal year 2019, we advanced our solid oxide power generation, electrolysis and energy storage applications by executing on our existing DOE contracts.  Our solid oxide development activities are focused on three applications:  power generation, electrolysis, and energy storage (which is a combination of the first two).  During fiscal year 2019, we conducted our first prototype field test of a 250kW natural gas fueled SOFC power plant at the Clearway Energy Center in downtown Pittsburgh, Pennsylvania.  We are currently fabricating an advanced electrolysis system for testing in our Danbury, Connecticut headquarters, and we were recently awarded funding from the DOE to convert the electrolysis system to a reversible storage facility after the electrolysis testing is complete in late 2020.  We believe that energy storage based on reversible solid oxide stacks can be a game changer for long duration energy storage.  

We believe there are significant market opportunities for distributed hydrogen production, carbon capture, solid oxide fuel cell solutions and energy storage that represent potential future revenue opportunities for the Company. The projects described above allow us to leverage third-party resources and funding to accelerate the commercialization and realize the market potential of each of these solutions and virtually eliminate the need to rely on and use rare earth minerals.

SureSource Emissions Profile

Fuel cells are non-combustion devices that directly convert chemical energy (fuel) into electricity, heat and water.  Because fuel cells generate power electrochemically rather than by combusting (burning) fuels, they are more efficient in extracting energy from fuels and produce less CO2 and only trace levels of pollutants compared to combustion-type power generation or traditional power sources used to firm-up intermittent power sources, such as wind and solar.  The following table illustrates the favorable emission profile of our customers,SureSource power plants:

 

 

Emissions (Lbs. Per MWh)

 

 

NOX

 

 

SO2

 

 

PM

 

 

CO2

 

 

CO2

with CHP

Average U.S. Fossil Fuel Plant (1)

 

 

0.48

 

 

 

2.6

 

 

 

0.08

 

 

 

1,533

 

 

NA

Microturbine (60kW) (2)

 

 

0.44

 

 

 

0.008

 

 

 

0.09

 

 

 

1,596

 

 

520 - 680

Small Natural Gas Turbine (3)

 

 

1.15

 

 

 

0.008

 

 

 

0.08

 

 

 

1,494

 

 

520 - 680

SureSource - natural gas (4)

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

940

 

 

520 - 680

SureSource 4000 High Efficiency Plant

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

740

 

 

520 - 680

SureSource - utility scale carbon capture

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

80

 

 

n/a

SureSource  - renewable biogas

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

< 0

 

 

< 0

The high efficiency of our products results in significantly less CO2 per unit of power production compared to the average U.S. fossil fuel power plant, and the carbon emissions are reduced even further when configured for CHP applications or biofuels.  When our power plants are operating on Renewable Biogas, government agencies and regulatory bodies generally classify them as carbon neutral due to the renewable nature of the fuel source. The low CO2 emissions and low criteria pollutants from SureSource power plants have a significant impact on sustainability and air quality because they avoid emissions 24 hours a day.  The high capacity factor of baseload SureSource systems maximizes the impact of their environmental benefits.  The following table shows how the low emissions combined with high capacity factor result in emissions avoidance comparable to or better than intermittent renewable power sources.  While wind and solar renewable power sources may completely avoid these emissions while operating, given their low capacity factors, they avoid fewer emissions than fuel cells only because they operate for fewer hours per day. When wind and solar renewable power sources are not operating, higher emission resources are required to operate, thus diluting the benefits. Additionally, all renewable power sources have life cycle emissions associated with manufacture and disposal.


 

 

Capacity

 

 

Emissions, lb/MWh

 

 

Avoided Emissions, Tons/y per MW

 

 

 

Factor, %

 

 

NOX

 

 

PM10

 

 

CO2

 

 

NOX

 

 

PM10

 

 

CO2

 

Average US Grid (5)

 

 

 

 

 

 

1.10

 

 

0.05

 

 

1501

 

 

 

 

 

 

 

 

 

 

SureSource 3000 with CHP (6)

 

 

90

%

 

0.01

 

 

 

0.00

 

 

738

 

 

4.3

 

 

0.19

 

 

 

3,008

 

SureSource 4000

 

 

90

%

 

0.01

 

 

 

0.00

 

 

778

 

 

4.3

 

 

0.19

 

 

 

2,848

 

SureSource Biogas fuel

 

 

90

%

 

0.01

 

 

 

0.00

 

 

0

 

 

4.3

 

 

0.19

 

 

 

5,917

 

Rooftop Solar (7)

 

 

23

%

 

 

 

 

 

 

 

 

 

 

1.1

 

 

0.05

 

 

 

1,479

 

Utility Scale Solar PV (7)

 

 

29

%

 

 

 

 

 

 

 

 

 

 

1.4

 

 

0.06

 

 

 

1,874

 

Wind (7)

 

 

47

%

 

 

 

 

 

 

 

 

 

 

2.2

 

 

 

0.10

 

 

 

3,057

 

(1)

Updated Greenhouse Gas and Criteria Air Pollutant Emission Factors of the US Electric Generating Units in 2010; Argon National Laboratory September 2013.

(2)

The Regulatory Assistance Project, "Model Regulations for the Output of Specified Air Emissions from Smaller Scale Electric Generation Resources."

(3)

The Regulatory Assistance Project, "Model Regulations for the Output of Specified Air Emissions from Smaller Scale Electric Generation Resources."

(4)

SureSource estimates based on Company specifications.

(5)

Grid emissions rates for NOX and CO2. From EPA eGrid 2016, US Average non-baseload rates. Grid emissions rate for PM10 from ANL report "Updated Greenhouse Gas and Criteria Air Pollutant Emission Factors of the US Electric Generating Units in 2010", 2019 Projection.

(6)

SureSource estimates based on Company specifications.

(7)

Solar and Wind capacity factors are average of range from Lazard LCOE Analysis version 12, November 2018.

Business Strategy

Our business model is based on multiple revenue streams, including power plant and component sales; recurring service revenue, mainly through long-term service agreements; recurring electricity, capacity and renewable attribute sales under PPAs and tariffs for projects we retain in our generation portfolio; and revenue from public and private industry research contracts under Advanced Technologies.

We are a complete solutions provider, controlling the design, manufacturing, sales, installation, operations and maintenance of our patented fuel cell technology under multi-yearlong-term power purchase and service agreements. When principally utilizing long-term PPAs, the end-user of the power or utility hosts the installation and only pays for power as it is delivered, avoiding up-front capital investment. We bothalso develop projects as well asand sell equipment directly to customers, providing either a complete solution of engineering, installing and servicing the fuel cell power plant or selling the power plant equipmentunder an engineering, procurement and providingconstruction (“EPC”) agreement and a long-term maintenance only.  We offer to arrange financing structures that enable power users to benefit fromand service agreement.  In all cases, FuelCell Energy maintains the multitude of advantages of clean onsite power while avoiding an up-front capital investment. Utilizing long-term power purchase agreements (PPAs) or lease structures,recurring service obligation and associated revenues running conterminous with the end-userlife of the power hosts the installation and only pays for power as it is delivered. For projects that we develop, the end user of the power typically enters into a PPA, and we have the option to either identify a project investor to purchase the power plant and assume the PPA, or retain the project and recognize electricity revenue ratably over the term of the PPA.  project.

We target large-scale power users with our megawatt-class installations.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.  Our customer base includes utility companies, municipalities, universities, hospitals, government entities and a variety of industrial and commercial enterprises. Our leading geographic markets aremarket is currently the United States, and South Korea, and we are pursuing expanding opportunities in other countries around the world.


Our value proposition is to enable economic returns with clean, affordable, reliable and resilient fuel cell power plants that supply power where consumed. Our products can also be configured for carbon capture, energy recovery and storage applications.  Our solutions are easy-to-site in populated areas as they are clean, operate quietly and without vibrations, and have only modest space requirements.  Fuel cells use an electrochemical process to convert a fuel source into electricity and heat in a highly efficient process that emits virtually no pollutants as the fuel is not burned, generating power that is almost wholly absent of criteria pollutants such as NOx that causes smog, SOx that contributes to acid rain, and particulate matter that can aggravate asthma.  Locating power generation near the point of use reduces reliance on the transmission grid, leading to enhanced energy security and power reliability.  Utilities can minimize or even avoid the cost of transmission or other infrastructure by adopting distributed generation, which saves their customers the cost of installing and maintaining transmission and also avoids the losses associated with transmitting electricity over great distances.  Our power plants provide electricity priced competitively to grid-delivered electricity in certain high cost regions, and our strategy is to continue to reduce costs, which we believe will lead to wider adoption.

FuelCell Energy was founded as a New York corporation headquartered in Connecticut in 1969 as an applied research organization, providing contract research and development.  The Company went public in 1992 and reincorporated in Delaware in 1999.  We began selling stationary fuel cell power plants commercially in 2003.  Today, we develop turn-key distributed power generation solutions, operating and providing comprehensive service for the life of the power plant.

Business Strategy

Central to our overall business strategy are four main areas of focus: (1) executing on our backlog and new project awards, (2) growing our generation portfolio, (3) competing for and winning new business around the world, and (4) developing and commercializing our carbon capture, distributed hydrogen and long duration energy storage solutions. We plan to continue to grow our generation portfolio in an effort to drive additional recurring revenue and profitability to complement our project sale model. We also intend to expand our domestic U.S. presence with our “Energy as a Service” model, under which we deliver energy to the customer under a PPA, as there are signs of acceleration of the adoption of distributed generation fuel cells owned by utilities in the U.S. under this model.  Lastly, the products under development in our Advanced Technologies group have great market potential, and we expect to commercially deploy these products over the next several years.

Our business model involves full life-cycle management of our projects and fuel cell solutions, from design through operation and maintenance. Our solutions employ a common core fuel cell technology, allowing our common product design to target global marketsmaintenance, including on-siteremoval and utility-scale projects forrecycling. By weight, approximately 93% of the supply, recovery and storageentire power plant can be re-used or recycled at the end of energy.  We selectively utilize strategic business alliances and collaboration agreements for market development, financing and cost reductions.  its useful life.

Our extensive intellectual property portfolio consists of patents, trade secrets and collective experience, which acts as a foundation for expanding and maximizing our solutions portfolio.  Our business model is based on multiple revenue streams, including power plant and component sales; engineering, procurement and construction (“EPC”) revenue; royalty and license revenue; recurring service revenue, including long-term service agreements; recurring electricity sales under PPAs and tariffs for projects we retain in our generation portfolio; and revenue from public and private industry research contracts under Advanced Technologies.  



Market Adoption

We target vertical markets and geographic regions that value clean distributed generation, are located where there are high energy costs, and are aligned with regulatory frameworks that harmonize energy, economic and environmental policies.  that:

1)

Benefit from and value clean distributed generation;

2)

Are located where there are high energy costs, poor grid reliability, and/or challenged transmission distribution lines;

3)

Have a need for distributed hydrogen for transportation or industry; and

4)

Are aligned with regulatory frameworks that harmonize energy, economic and environmental policies.

Our business model addresses all three offocuses on providing these policy areasvertical markets and geographic regions with highly efficient and affordable distributed generation that delivers de-centralized power in a low-carbon, virtually pollutant-free manner. Geographic markets that meet these criteria and where we are already well established include South Korea, the Northeast U.S.Northeastern United States and California.  We have also installed and operatedare operating plants in Europe and Asia, mainly South Korea, in addition to North America. We selectively develop strategic business relationships with some of the leading energy and power generation companies in our target markets to facilitate demand and deploy our projects. While the

The Company has made significant progress with reducing costs and creating markets since the commercialization of our products in 2003, with more than 255 MW of our SureSource technology currently installed and operating. We believe that we face two primary challenges in growingcan accelerate and expand the adoption of our distributed power generation solutions.  These aresolutions through (1) the need to further


reduce reductions in the total cost of ownership, and (2) the continued education and acknowledgment ofregarding the value that our solutions provide.  The business modelprovide, (3) geographic and segment expansion, (4) growing demand for theonsite generation, (5) microgrid expansion, and delivery of electricity for over a century has been central generation, which is large-scale power generation in distant locations away from urban areas with transmission(6) product expansion across biofuels, carbon capture and distribution to the end users.  Distributed generation enhances existing utility models and it is being embraced in an increasing number of markets to improve grid operations.local hydrogen.  

We work with utilities and power generators to demonstrate how our solutions complement central generation by incrementally adding clean power generation when and where needed.  One example of this is a 40 megawatt fuel-cell only solicitation by Long Island Power Authority (“LIPA”) to address load pockets or power needs in specific areas of its service territory.  LIPA operates in an area with high population density, scarce and expensive land, the need for resiliency to ensure power during storms, and vocal citizens that may not welcome new transmission lines in their neighborhoods.  The structure of the program reflected the unique value drivers of fuel cells to cleanly, efficiently and economically supply power where it is needed, which for LIPA is near existing electrical substations.  LIPA awarded the entire 40 MW solicitation to FuelCell Energy through a competitive bidding process after a review of more than 375 MW of proposals from multiple developers.  

Fuel Cell Power Plant Ownership Structures

InHistorically, in the United States, historically customers or developers generallytypically purchased our fuel cell power plants outright.  As the size of our fuel cell projects has grown and the availability of project capital has improved, project structures in the U.S. have transitioned to predominantly PPAs, which is what we refer to as the “Energy as a Service” model.PPAs.  Under a PPA, the utility or end-user of the power commits to purchase power as it is produced for an extended period of time, typically 10 to 2010-to-20 years.  Examples of actual end-userscustomers that have previously entered into PPAs include universities, a pharmaceutical company, hospitals and utilities.  A primary advantage for the end-usercustomer is that it does not need to commit its own capital or own a power generating asset, yet it enjoys the multiple benefits of fuel cell power generation.

Once the PPA is executed and project financing is committed, construction of the fuel cell project can begin.  At or around COD,the Commercial Operation Date, the project may be sold to a project investor or retained by the Company.  If the project is sold, revenue from the product sale is recognized.recognized, and the Company recognizes revenue separately for the long-term maintenance and service agreement over the term of that agreement.  If the project is retained, electricity, salescapacity and/or renewable energy credits are recognized monthly over the term of the PPA. We report the financial performance of retained projects as generation revenue and income.

Our decision to retain certain projects is based in part on the recurring, predictable cash flows these projects can offer to us, the proliferation of power purchase agreementsPPAs in the industry and the potential access to capital.  Retaining PPAs affords the Company the full benefit of future cash flows under the PPAs, which are higher than if we sell the projects.projects, although it requires more upfront capital investment and financing.  As of October 31, 2018,2019, our operating portfolio of retained projects totaled 11.226.1 MW with an additional 83.179.5 MW under development or construction.  The Company plans to continue to grow this portfolio in a balanced manner, while also selling projects to investors when thatselling presents the best value and opportunity for the Company’s capital. In furtherance ofcapital or meets the assetcustomer’s desired ownership “Energy as a Service” model, the Company, through its subsidiary FuelCell Energy Finance, LLC, on October 31, 2018, signed a Membership Interest Purchase Agreement with Dominion Generation, Inc. (“Dominion”) to reacquire the 15 MW Bridgeport fuel cell park project. The Company is currently working to arrange financing to close the transaction with Dominion.structure.

 

Levelized Cost of Energy

Our fuel cell projects deliver power at a rate comparable to pricing from the grid in our targeted markets.  Policy programs that help to support adoption of clean distributed power generation often lead to below-grid pricing.  We measure power costs by calculating the Levelized Cost of Energy (“LCOE”) over the life of the project.  


There are several primary elements to LCOE for our fuel cell projects, including (1) capital cost, (2) operations and maintenance, (3) fuel, and (4) cost of capital.  including:

1)

Capital cost;

2)

Operations and maintenance cost; and

3)

Fuel expense.

Given the level of integration in our business model of manufacturing, installing and operating fuel cell power plants, there are multiple areas and opportunities for cost reductions. We are actively managing and reducing costs in all fourthree LCOE areas as follows:

Capital Cost - Capital costs of our projects include costs to manufacture, install, interconnect, and complete any on-site application requirements such as configuring for a micro-grid

Capital Cost - Capital costs of our projects include costs to source material, manufacture, install, interconnect, finance and complete any on-site application requirements such as configuring for a microgrid and/or heating and cooling applications.  We have reduced the product cost of our megawatt-class power plants by more than 60% from the first commercial installation in 2003. Further cost reductions will primarily be obtained from higher production volumes and engineering efficiency, which are expected to lead to reductions in the per-unit cost of materials purchased, supported by continued engineering, supply chain and manufacturing cost reductions.  Our supply chain organization is actively engaged in strategic initiatives with suppliers to optimize production efficiencies and reduce waste while increasing quality and platform uptime, and lowering overall product/platform costs. Strategic sourcing initiatives are established to ensure adequate production capacity is qualified in advance of production volume scale up. Our industrial engineering, manufacturing and quality operations continue to embrace Lean Six Sigma principles throughout, focusing on continuous improvement, elimination of waste and increases in yields and quality while reducing cost. Larger projects offer scale and the opportunity to consolidate systems and reduce costs. In addition to these cost reduction efforts, our technology roadmap includes plans to increase the output of our power plants, which will add further value for our customers and reduce LCOE. We are always working to obtain the lowest cost financing for our generation projects.


60% from the first commercial installation in 2003 through our ongoing product cost reduction program, which involves every aspect of our business including engineering, procurement and manufacturing.  Further cost reductions will be primarily obtained from higher production volumes which will lead to reductions in the per-unit cost of materials purchased, supported by continued actions with engineering and manufacturing cost reductions.  On-site, our experienced EPC team has substantial experience in working with contractors and local utilities to safely and efficiently execute our projects and we expect continued cost reduction in this area with additional experience and continued transition to multi-MW fuel cell parks. Larger projects offer scale and the opportunity to consolidate systems and reduce costs. In addition to these cost reduction efforts, our technology roadmap includes plans to increase the output of our power plants which will add further value for our customers and reduce LCOE.  

Operations and Maintenance Cost - We– Through secure connections, we remotely monitor, operate, and maintain theour fuel cell power plants to optimize performance and meet or exceed expected operating parameters throughout the plants’ operational life.lives of the plants. Operations and maintenance (“O&M”) is a key driver for power plants to deliver on projected electrical output and revenue.  Many of our service agreements and PPAs include guarantees for system performance levels, including electrical output. Customers benefit from predictable savings and financial returns over the life of the contract, while minimizing risk.  Each model of our SureSource power plants has a design life of 25 to 30 years. The fuel cell modules, currently manufactured with a 5 to 7-year cell design life, go through periodic replacement, while the balance of plant (“BOP”)BOP systems, which consist of conventional mechanical and electrical equipment, are maintained over the plant life. The price for planned periodic fuel cell stack replacements is included in our long-term service agreements.agreements or in the per kWh price of the PPA. We expect to continually drive down the cost of O&M with an expanding fleet, which will leverage our investments in this area.  Additionally, we have completed the development ofare continuing to develop fuel cells that have a longer life,useful lives, which willis intended to reduce O&M costs by increasing our scheduled module replacement period to in excess of seven years.

Fuel - Our fuel cells directly convert chemical energy (fuel) into electricity, heat, water, and in certain configurations, other value streams such as high purity hydrogen.  Our power plants can operate on a variety of existing and readily available fuels, including natural gas, renewable biogas, directed biogas and propane.  The high efficiency of the fuel cell results in low carbon dioxide (“CO2”) emissions when using fossil fuels such as natural gas or propane, and because of our fuel flexibility our systems are essentially carbon neutral when operating on biogas fuels. Our SureSource power plants deliver electrical efficiencies of 47%, for systems targeting CHP applications and 60% efficiency for systems targeting electric-only applications such as grid support and data centers.  In a CHP configuration, our plants can deliver even higher system efficiency, depending on the application.  Considering utilized waste heat in CHP applications, total efficiency of systems using our power plants is typically 60% to 80% and can be as high as 90%.  These efficiencies compare to average US

Fuel Expense - Our fuel cells directly convert chemical energy (fuel) into electricity, heat, water, and, in certain configurations, other value streams such as high purity hydrogen.  Our power plants can operate on a variety of existing and readily available fuels, including natural gas, Renewable Biogas, directed Biogas and propane.  Our SureSource power plants deliver electrical efficiencies of 47% for systems targeting CHP applications and 60% for systems targeting electric-only applications, such as grid support and data centers.  In a CHP configuration, our plants can deliver even higher system efficiency, depending on the application.  Considering utilized waste heat in CHP applications, total efficiency of systems using our power plants is typically 60% to 80% and can be as high as 90%.  These efficiencies compare to average U.S. fossil fuel plant generation efficiency of about 40% with grid line losses.  Increasing electrical efficiency and reducing fuel costs is a key element of our operating cost reduction efforts.

Cost of Capital - Most of our MW-scale projects have historically been financed either by the energy user/off-taker that owns the asset oroperating cost reduction efforts and a project investor that owns the asset and sells energy to the off-taker.  We have responded to an evolving market with greater interest in the “Energy as a Service” PPA approach by end users of the power that prefer to avoid the up-front investment in power generation assets.  Our PPA projects create predictable recurring revenue that is not dependent on weather or the time of the day, investment tax credits, accelerated tax depreciation or other incentives. Credit risk is mitigated by contracting with customers with strong credit. In addition, we offer meaningful system-level output performance guarantees over the life of our projects. As a result, cost of capital for our projects has declined over time, partially due to our operating experience.  With continued execution, we expect to continue to attract project finance capital, and with financial and project performance credibility continuing to improve, we expect to achieve reductions in risk premiums leading to lower financing costs.competitive advantage against traditional combustion-based technologies.

An additionalimportant and differentiating factor that benefits fuel cells when comparing LCOE to other forms of power generation is that our solutions provide delivered electricity that minimizes or even avoids the costs of high voltage and distributed transmission.

Energy can be produced right at the point of use. When comparing LCOE across different forms of power generation, transmission needs toshould be considered in the evaluation.considered.  Power generation far from where the power is used requires transmission, which is a cost to ratepayers,


creates risk of system outages, increases cyber attack risk, and is inefficient due to line losses of power in the transmission process. TransmissionRecent events, including hurricanes along the Gulf


coast and Puerto Rico, wildfires in California, and significant snow and ice storms in the Northeastern U.S., prove that transmission systems are also more vulnerable to storm-related and other interruptions than locally-generated energy.

We believe that ourRecently, California was affected by the utility policy of Public Safety Power Shutoffs (“PSPS”), a preemptive effort by the utility companies to prevent wildfires from being started by electrical equipment during strong business model and strategy, demonstrated projectdry wind conditions. Two plants manufactured and operated by FuelCell Energy remained operational as part of their respective microgrids in areas impacted by PSPS and provided steady, reliable power to the University of California, San Diego and the Santa Rita Jail during a time when over 3 million people were generally affected by PSPS.

Producing power near the point of use also facilitates the development and execution, plant operating performance, and strategic relationships will support accelerated adoption of ourCHP applications, since it is easier to find a user for fuel cell solutions.waste heat in distributed applications.  Using waste heat to avoid burning fuel for thermal applications reduces LCOE (by avoiding fuel cost) and avoids additional carbon emissions and criteria pollutants.

Markets

Vertical MarketsSureSource Emissions Profile

AccessFuel cells are non-combustion devices that directly convert chemical energy (fuel) into electricity, heat and water.  Because fuel cells generate power electrochemically rather than by combusting (burning) fuels, they are more efficient in extracting energy from fuels and produce less CO2 and only trace levels of pollutants compared to clean, affordablecombustion-type power generation or traditional power sources used to firm-up intermittent power sources, such as wind and reliablesolar.  The following table illustrates the favorable emission profile of our SureSource power defines modern lifestyles.  plants:

 

 

Emissions (Lbs. Per MWh)

 

 

NOX

 

 

SO2

 

 

PM

 

 

CO2

 

 

CO2

with CHP

Average U.S. Fossil Fuel Plant (1)

 

 

0.48

 

 

 

2.6

 

 

 

0.08

 

 

 

1,533

 

 

NA

Microturbine (60kW) (2)

 

 

0.44

 

 

 

0.008

 

 

 

0.09

 

 

 

1,596

 

 

520 - 680

Small Natural Gas Turbine (3)

 

 

1.15

 

 

 

0.008

 

 

 

0.08

 

 

 

1,494

 

 

520 - 680

SureSource - natural gas (4)

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

940

 

 

520 - 680

SureSource 4000 High Efficiency Plant

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

740

 

 

520 - 680

SureSource - utility scale carbon capture

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

80

 

 

n/a

SureSource  - renewable biogas

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

< 0

 

 

< 0

The abilityhigh efficiency of our products results in significantly less CO2 per unit of power production compared to providethe average U.S. fossil fuel power cleanlyplant, and efficiently is takingthe carbon emissions are reduced even further when configured for CHP applications or biofuels.  When our power plants are operating on greater importanceRenewable Biogas, government agencies and urgency in many regionsregulatory bodies generally classify them as carbon neutral due to the renewable nature of the world.  Central generationfuel source. The low CO2 emissions and its associated transmission and distribution grid are difficult to site, costly, prone to interruption and generally take many years to permit and build.  Some types of power generation that were widely adopted in the past, such as nuclear power, are no longer welcome in certain regions.  The cost and impact to public health and the environment oflow criteria pollutants and greenhouse gas emissions impact the siting of new power generation.  The attributes offrom SureSource power plants addresshave a significant impact on sustainability and air quality because they avoid emissions 24 hours a day.  The high capacity factor of baseload SureSource systems maximizes the impact of their environmental benefits.  The following table shows how the low emissions combined with high capacity factor result in emissions avoidance comparable to or better than intermittent renewable power sources.  While wind and solar renewable power sources may completely avoid these challenges byemissions while operating, given their low capacity factors, they avoid fewer emissions than fuel cells only because they operate for fewer hours per day. When wind and solar renewable power sources are not operating, higher emission resources are required to operate, thus diluting the benefits. Additionally, all renewable power sources have life cycle emissions associated with manufacture and disposal.


 

 

Capacity

 

 

Emissions, lb/MWh

 

 

Avoided Emissions, Tons/y per MW

 

 

 

Factor, %

 

 

NOX

 

 

PM10

 

 

CO2

 

 

NOX

 

 

PM10

 

 

CO2

 

Average US Grid (5)

 

 

 

 

 

 

1.10

 

 

0.05

 

 

1501

 

 

 

 

 

 

 

 

 

 

SureSource 3000 with CHP (6)

 

 

90

%

 

0.01

 

 

 

0.00

 

 

738

 

 

4.3

 

 

0.19

 

 

 

3,008

 

SureSource 4000

 

 

90

%

 

0.01

 

 

 

0.00

 

 

778

 

 

4.3

 

 

0.19

 

 

 

2,848

 

SureSource Biogas fuel

 

 

90

%

 

0.01

 

 

 

0.00

 

 

0

 

 

4.3

 

 

0.19

 

 

 

5,917

 

Rooftop Solar (7)

 

 

23

%

 

 

 

 

 

 

 

 

 

 

1.1

 

 

0.05

 

 

 

1,479

 

Utility Scale Solar PV (7)

 

 

29

%

 

 

 

 

 

 

 

 

 

 

1.4

 

 

0.06

 

 

 

1,874

 

Wind (7)

 

 

47

%

 

 

 

 

 

 

 

 

 

 

2.2

 

 

 

0.10

 

 

 

3,057

 

(1)

Updated Greenhouse Gas and Criteria Air Pollutant Emission Factors of the US Electric Generating Units in 2010; Argon National Laboratory September 2013.

(2)

The Regulatory Assistance Project, "Model Regulations for the Output of Specified Air Emissions from Smaller Scale Electric Generation Resources."

(3)

The Regulatory Assistance Project, "Model Regulations for the Output of Specified Air Emissions from Smaller Scale Electric Generation Resources."

(4)

SureSource estimates based on Company specifications.

(5)

Grid emissions rates for NOX and CO2. From EPA eGrid 2016, US Average non-baseload rates. Grid emissions rate for PM10 from ANL report "Updated Greenhouse Gas and Criteria Air Pollutant Emission Factors of the US Electric Generating Units in 2010", 2019 Projection.

(6)

SureSource estimates based on Company specifications.

(7)

Solar and Wind capacity factors are average of range from Lazard LCOE Analysis version 12, November 2018.

Business Strategy

Our business model is based on multiple revenue streams, including power plant and component sales; recurring service revenue, mainly through long-term service agreements; recurring electricity, capacity and renewable attribute sales under PPAs and tariffs for projects we retain in our generation portfolio; and revenue from public and private industry research contracts under Advanced Technologies.

We are a complete solutions provider, controlling the design, manufacturing, sales, installation, operations and maintenance of our patented fuel cell technology under long-term power purchase and service agreements. When principally utilizing long-term PPAs, the end-user of the power or utility hosts the installation and only pays for power as it is delivered, avoiding up-front capital investment. We also develop projects and sell equipment directly to customers, providing virtually particulate emission-freea complete solution of engineering, installing and servicing the fuel cell power plant under an engineering, procurement and where desired, thermal energyconstruction (“EPC”) agreement and a long-term maintenance and service agreement.  In all cases, FuelCell Energy maintains the long-term recurring service obligation and associated revenues running conterminous with the life of the project.

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.  Our customer base includes utility companies, municipalities, universities, hospitals, government entities and a variety of industrial and commercial enterprises. Our leading geographic market is currently the United States, and we are pursuing opportunities in other countries around the world.

Our power plants provide electricity priced competitively to grid-delivered electricity in certain regions, and our strategy is to continue to reduce costs, which we believe will lead to wider adoption. Our business model involves full life-cycle management of our projects and fuel cell solutions, from design through operation and maintenance, including removal and recycling. By weight, approximately 93% of the entire power plant can be re-used or recycled at the pointend of use in a highly efficient process that is affordable to consumers.its useful life.

Our extensive intellectual property portfolio consists of patents, trade secrets and collective experience, which acts as a foundation for expanding and maximizing our solutions are installed on both sides of the electric meter, meaning that we serve on-site markets supplying power directly to the end user, as well as utility-scale projects that supply power to the electric grid.  portfolio.  



Market Adoption

We target seven distinctvertical markets including:and geographic regions that:

 

(1)1)

UtilitiesBenefit from and Independent Power Producers,value clean distributed generation;

 

(2)2)

Industrial and Process applications,Are located where there are high energy costs, poor grid reliability, and/or challenged transmission distribution lines;

 

(3)3)

Education and Health care,

(4)

Data Centers and Communication,

(5)

Wastewater treatment,

(6)

Government,Have a need for distributed hydrogen for transportation or industry; and

 

(7)4)

CommercialAre aligned with regulatory frameworks that harmonize energy, economic and Hospitality.environmental policies.

Our business model focuses on providing these vertical markets and geographic regions with highly efficient and affordable distributed generation that delivers de-centralized power in a low-carbon, virtually pollutant-free manner. Geographic markets that meet these criteria and where we are already well established include the Northeastern United States and California.  We have also installed and are operating plants in Europe and Asia, mainly South Korea, in addition to North America.

The UtilitiesCompany has made significant progress with reducing costs and Independentcreating markets since the commercialization of our products in 2003, with more than 255 MW of our SureSource technology currently installed and operating. We believe that we can accelerate and expand the adoption of our distributed power generation solutions through (1) further reductions in the total cost of ownership, (2) continued education regarding the value that our solutions provide, (3) geographic and segment expansion, (4) growing demand for onsite generation, (5) microgrid expansion, and (6) product expansion across biofuels, carbon capture and local hydrogen.  

Fuel Cell Power Producers segment is our largest vertical market with customers that include utilities on the East and West coasts ofPlant Ownership Structures

Historically, in the United States, such as Avangrid Holdings (NYSE: AGR)customers or developers typically purchased our fuel cell power plants outright.  As the size of our fuel cell projects has grown and Long Island Power & Light. In Europe,the availability of project capital has improved, project structures in the U.S. have transitioned to predominantly PPAs.  Under a PPA, the utility customers include E.ON Connecting Energies (DAX: EOAN), oneor end-user of the largest utilitiespower commits to purchase power as it is produced for an extended period of time, typically 10-to-20 years.  Examples of customers that have previously entered into PPAs include universities, a pharmaceutical company, hospitals and utilities.  A primary advantage for the customer is that it does not need to commit its own capital or own a power generating asset, yet it enjoys the benefits of fuel cell power generation.

Once the PPA is executed and project financing is committed, construction of the fuel cell project can begin.  At or around the Commercial Operation Date, the project may be sold to a project investor or retained by the Company.  If the project is sold, revenue from the product sale is recognized, and the Company recognizes revenue separately for the long-term maintenance and service agreement over the term of that agreement.  If the project is retained, electricity, capacity and/or renewable energy credits are recognized monthly over the term of the PPA. We report the financial performance of retained projects as generation revenue and income.

Our decision to retain certain projects is based in part on the recurring, predictable cash flows these projects can offer us, the proliferation of PPAs in the world,industry and Switzerland-based ewz.  In Korea,the potential access to capital.  Retaining PPAs affords the Company the full benefit of future cash flows under the PPAs, which are higher than if we are contractedsell the projects, although it requires more upfront capital investment and financing.  As of October 31, 2019, our operating portfolio of retained projects totaled 26.1 MW with an additional 79.5 MW under development or construction.  The Company plans to operatecontinue to grow this portfolio in a balanced manner, while also selling projects to investors when selling presents the best value and maintain a 20 MW plantopportunity for Korea Southern Power Company (“KOSPO”).the Company’s capital or meets the customer’s desired ownership structure.

Levelized Cost of Energy

Our SureSource power plants are producing power for a variety of industrial, commercial, municipal and government customers, including manufacturing facilities, pharmaceutical processing facilities, universities, healthcare facilities and wastewater treatment facilities.  These institutions desire efficient, ultra-clean continuous power to reduce operating expenses, reduce greenhouse gas emissions and avoid pollutant emissions to meet their sustainability goals.  Combined heat and power fuel cell applications further support economic and sustainability initiatives by minimizing or avoiding the use of combustion based boilers for heat.

Our products are fuel flexible, utilizing clean natural gas and renewable biogas generated by the customer on-site or directed biogas generatedprojects deliver power at a distant location and transported viarate comparable to pricing from the existing common carrier gas pipeline network.  In addition, we have demonstrated other fuel sources including coal syngas and propane.

As intermittent renewable technologies such as wind and solar power are deployed more widely, the need for agrid in our targeted markets.  Policy programs that help to support adoption of clean continuousdistributed power generation that complements and balances these sources becomes greateroften lead to maintain grid stability and consistentbelow-grid pricing.  We measure power supply for on-site applications.  Our installed base includes a numbercosts by calculating the Levelized Cost of locations where our customers use SureSource plants for meeting power needs that complements intermittent wind and/or solar power generation.Energy (“LCOE”) over the life of the project.  


Our fuel cell solutionsThere are well suited for micro-grid applications, either as the sole source of power generation, or integrated with other forms of power generation.  We have fuel cells operating as micro-grids at universities and municipalities, including one university micro-grid owned by Clearway Energy and a municipal-based micro-grid owned by Avangrid.  For the municipal-based system, under normal operation, the fuel cell supplies powerseveral primary elements to the grid.  If the grid is disrupted, the fuel cell plant will automatically disconnect from the grid and power a number of critical municipal buildings. Heat from this fuel cell plant is used by the local high school.

Wastewater treatment facilities, food and beverage processors, and agricultural operations produce biogas as a byproduct of their operations. Disposing of this greenhouse gas can be harmful to the environment if released into the atmosphere or flared. Our SureSource power plants convert this biogas into electricity and heat efficiently and economically. Wastewater facilities with anaerobic digesters are an attractive market for our SureSource solution including the power plant as well as treatment of the biogas. Since our fuel cells operate on the renewable biogas produced by the wastewater treatment process and the heat is used to support daily operations at the wastewater treatment facility, the overall thermal efficiency of these installations is high, supporting economics and sustainability.

We estimate that the addressable distributed generation market and geographies in which we compete for the supply of energy, including distributed hydrogen production, is approximately a $22 billion opportunity, with approximately 40-45% consisting of power plant sales and the remainder representing associated service agreements.  We estimate that the addressable market for the recovery of energy, including our fuel cell carbon capture solution and our gas pipeline application, is approximately $28 billion, assuming only a 1% penetration rate of addressable coal and gas-fired central generation power plant facilities within the geographies where we do business, and only 25% carbon capture at these coal or gas-fired plants.  We believe there are additional market opportunities for capture from industrial thermal sources, such as boilers, in industries like steel and cement production.  The addressable energy storage market is still developing as different technologies are beginning to come to market with different approaches to storage and different storage durations.  We estimate that the addressable market for long duration storage may be in the range of tens of billions of dollars.

Products

Our core fuel cell products offer ultra-clean, highly efficient power generation for customers, including the 1.4 MW SureSource 1500TM, the 2.8 MW SureSource 3000TM, and the 3.7 MW SureSource 4000TM.  The plants are scalable for multi-megawatt utility applications or on-site CHP generation for a broad range of applications.  We provide a comprehensive and complete turn-key fuel cell project that includes project development, EPC services, and O&M, as well as arranging financing structures that enable customers to benefit from the advantages of clean power while avoiding an up-front capital investment.

Our proprietary carbonate fuel cell technology generates electricity directly from a fuel, such as natural gas or renewable biogas, by reforming the fuel inside the fuel cell to produce hydrogen. This internal “one-step” reforming process results in a simpler, more efficient, and cost-effective energy conversion system compared with external reforming fuel cells.  Additionally, natural gas has an established infrastructure and is readily available in our existing and target markets compared to some types of fuel cells that require high purity hydrogen. Our fuel cells operate at approximately 1,100° F. An advantage of high temperature fuel cells is that they do not require the use of precious metal electrodes required by lower temperature fuel cells, such as proton-exchange membrane (“PEM”) fuel cells.  As a result, we are able to use less expensive and readily available industrial metals as catalystsLCOE for our fuel cell components.  

The SureSource product line is a global platform based on carbonate fuel cell technology.  Using a standard design globally enables volume-based cost reduction and optimal resource utilization.  Our power plants utilize a variety of available fuels to produce electricity electrochemically, in a process that is highly efficient, quiet, and due to the avoidance of combustion, produces virtually no particulate pollutants. Thus, our plants generate more power and fewer emissions for a given unit of fuel than combustion-based power generation of a similar size, making them economical and environmentally responsible power generation solutions.  In addition to electricity, our standard configuration produces high quality heat (approximately 700° F), suitable for heating facilities or water, or steam for industrial processes or absorption cooling.  Our system’s efficiencies can reach up to 90%, depending on the application, when configured for CHP.


We market different configurations of the SureSource plants to meet specific market needs for the supply, recovery and storage of energy,projects, including:

Energy Supply

On-Site Power (Behind the Meter):  Customers benefit from improved power reliability and energy security from on-site power that reduces reliance on the electric grid.  Utilization of the high quality heat produced by the fuel cell in a CHP configuration supports economics and sustainability goals by lessening or even avoiding the need for combustion-based boilers for heat and its associated cost, pollutants and carbon emissions.  On-site CHP power projects generally range in size from an individual SureSource 1500 to combining multiple SureSource 3000 or SureSource 4000 power plants for larger on-site projects.  For example, an installation at a pharmaceutical company uses two SureSource 3000 power plants for 5.6 MW of power and heat production while an installation currently contracted for a U.S. Navy base will use two SureSource 4000 power plants for 7.4 MW of power.

Utility Grid Support: The SureSource power plants are scalable, which enables siting multiple fuel cell power plants together in a fuel cell park.  Fuel cell parks enable utilities to add clean and continuous multi-megawatt power generation when and where needed and enhance the resiliency of the electric grid by reducing reliance on large central generation plants and the associated transmission grid.  Consolidating certain steps for multiple plants, such as fuel processing, reduces the cost per megawatt hour for fuel cell parks compared to individual fuel cell power plants.  Fuel cell park examples include a five plant, 14.9 MW fuel cell park in Bridgeport, Connecticut that is supplying the electric grid, and multiple fuel cell parks in South Korea in excess of 10 MW each that supply power to the electric grid and high quality heat to district heating systems.  By producing power near the point of use, our fuel cells help to ease congestion of the electric grid and can also enable the smart grid via distributed generation combined with continuous monitoring and operation by our service organization. Thus, our solutions can avoid or reduce investment in new central generation and transmission infrastructure which is costly, difficult to site and expensive to maintain. Deploying our SureSource power plants throughout a utility service territory can also help utilities comply with government-mandated clean energy regulations and meet air quality standards.  Examples of fuel cells parks located throughout a utility service territory to avoid costly transmission include the three LIPA projects to be built totaling 39.8 MW. Our products can be part of a total power generation solution with our high efficiency products providing continuous power, and can be combined with intermittent power generation, such as solar or wind, or less efficient combustion-based equipment that provides peaking or load following power.

Higher Electrical Efficiency - Multi-Megawatt Applications:  The SureSource 4000 is designed to extract more electrical power from each unit of fuel with electrical efficiency of approximately 60% and targets applications with large load requirements and limited waste heat utilization such as utility/grid support or data centers.  This 3.7 MW plant is configured with a series of three fuel cell modules that operate in sequence, yielding a higher electrical efficiency than the standard SureSource 3000 configuration of two fuel cell modules operating in parallel.  The heat energy and unused hydrogen from two fuel cell modules is supplied to the third module, enhancing overall electrical efficiency.  

Distributed Hydrogen:  The SureSource fuel cells internally reform the fuel source (i.e. natural gas or biogas) to obtain hydrogen.  The SureSource plants can be configured for tri-generation, supplying power, heat and high purity hydrogen.  Power output is modestly reduced to support hydrogen generation, which can then be used for industrial applications such as metal or glass processing, or petrochemical, or transportation applications.  Siting the tri-generation fuel cell plant at a source of biogas, such as a wastewater treatment facility, enables the generation of renewable hydrogen for transportation, an attractive proposition to regulatory and legislative officials and auto companies. We have announced the first commercial MW-scale application of this product configuration at the Port of Long Beach, California which will support Toyota’s logistical support facility.

Micro-grid: The SureSource plants can also be configured as a micro-grid, either independently or with other forms of power generation.  We have multiple examples of our solutions operating within micro-grids, some individually and some with other forms of power generation.


Energy Recovery

 

1)

Gas Pipeline Applications:  SureSource RecoveryTMpower plants are used in natural gas pipeline applications, harnessing energy that is otherwise lost during the natural gas pressure-reduction (“letdown”) process. Also, thermal energy produced as a byproduct of the fuel cell’s operation supports the letdown process, improving the letdown station’s carbon footprint and enhancing the project’s economics. Depending on the specific gas flows and application, the SureSource Recovery configuration is capable of achieving electrical efficiencies of up to 70%.  A 3.4 megawatt system is owned by a subsidiary of Avangrid and operating at a gas letdown station owned by its regulated gas utility subsidiary.Capital cost;

 

2)

Carbon Capture:  The SureSource CaptureTM system separates CO2 from the flue gases of natural gas, biomass or coal-fired power plants or industrial facilities while producing ultra-clean power. Exhaust flue gas from the coal/biomass/gas plant or industrial facility is supplied to the fuel cell, which extractsOperations and purifies the CO2 in the flue gas as part of the fuel cell power generation process.  Carbon capture systems can be implemented in increments, starting with as little as 5% capture with no appreciable change in the cost of powermaintenance cost; and with minimal capital outlay.  Our solution generates a return on capital resulting from the fuel cell's production of electricity rather than an increase in operating expense required by other carbon capture technologies, and can extend the life of existing power plants, enabling low carbon utilization of domestic coal and gas resources.  During 2018, the Company completed the first phase design and engineering of the first carbon capture configured SureSource 3000 power plant, planned to be located at a mixed coal/gas fired power station owned by a subsidiary of Southern Company.  The project was partially funded by the U.S. Department of Energy (“DOE”) and ExxonMobil. The Company is working to secure the funding to move to the second phase of the project, which includes construction of the carbon capture fuel cell plant.

Energy Storage

We are developing our long-duration SureSource StorageTM solution, creating a system that utilizes both SOFC and SOEC technology and using hydrogen as the energy storage medium.  Our solid oxide stacks are capable of alternating between electrolysis and power generation mode.  Instead of producing power from fuel and air, a solid oxide fuel cell stack in electrolysis mode splits water into hydrogen and oxygen using supplied electricity.  Hydrogen is an energy carrier that can be compressed and stored for long durations in storage tubes or underground.  

This allows us to configure efficient and cost effective energy storage solutions where hydrogen is produced from electricity in electrolysis mode and stored until power is needed, at which point the stored hydrogen is used in the same stacks to produce electricity.  Storage capacity is easily expanded by adding additional storage tanks, a low cost approach for storage applications requiring many hours or days of storage capacity.  The need for long duration energy storage behind the meter and on the utility grid will increase as the penetration of intermittent renewable sources on the grid expands.  This solution can be sited adjacent to an electric substation, avoiding the need for transmission.

In summary, our solutions offer many advantages:

Distributed generation: Generating power near the point of use improves power reliability and energy security and lessens the need for costly and difficult-to-site generation and transmission infrastructure, enhancing the resiliency of the grid.

Ultra-clean: Our SureSource solutions produce electricity electrochemically − without combustion − directly from readily available fuels such as natural gas and renewable biogas in a highly efficient process. The virtual absence of pollutants facilitates siting the power plants in regions with clean air permitting regulations and is an important public health benefit.

High efficiency: Fuel cells are the most efficient power generation option in their size class, providing the most power from a given unit of fuel, reducing fuel costs. This high electrical efficiency also reduces carbon emissions compared to less efficient combustion-based power generation.

Combined heat and power: Our power plants provide both electricity and usable high quality heat/steam from the same unit of fuel.  The heat can be used for facility heating and cooling or further enhancing the electrical efficiency of the power plant in a combined cycle configuration. When used in CHP configurations, system efficiencies can potentially reach up to 90%, depending on the application.


 

3)

Reliability / continuous operation: Our SureSource power plants improve power reliability and energy security by lessening reliance on transmission and distribution infrastructure of the electric grid. Unlike solar and wind power, fuel cells are able to operate continuously regardless of weather or time of day.Fuel expense.

Given the level of integration in our business model of manufacturing, installing and operating fuel cell power plants, there are multiple areas and opportunities for cost reductions. We are actively managing and reducing costs in all three LCOE areas as follows:

Capital Cost - Capital costs of our projects include costs to source material, manufacture, install, interconnect, finance and complete any on-site application requirements such as configuring for a microgrid and/or heating and cooling applications.  We have reduced the product cost of our megawatt-class power plants by more than 60% from the first commercial installation in 2003. Further cost reductions will primarily be obtained from higher production volumes and engineering efficiency, which are expected to lead to reductions in the per-unit cost of materials purchased, supported by continued engineering, supply chain and manufacturing cost reductions.  Our supply chain organization is actively engaged in strategic initiatives with suppliers to optimize production efficiencies and reduce waste while increasing quality and platform uptime, and lowering overall product/platform costs. Strategic sourcing initiatives are established to ensure adequate production capacity is qualified in advance of production volume scale up. Our industrial engineering, manufacturing and quality operations continue to embrace Lean Six Sigma principles throughout, focusing on continuous improvement, elimination of waste and increases in yields and quality while reducing cost. Larger projects offer scale and the opportunity to consolidate systems and reduce costs. In addition to these cost reduction efforts, our technology roadmap includes plans to increase the output of our power plants, which will add further value for our customers and reduce LCOE. We are always working to obtain the lowest cost financing for our generation projects.

Operations and Maintenance Cost – Through secure connections, we remotely monitor, operate, and maintain our fuel cell power plants to optimize performance and meet or exceed expected operating parameters throughout the operational lives of the plants. Operations and maintenance (“O&M”) is a key driver for power plants to deliver on projected electrical output and revenue.  Each model of our SureSource power plants has a design life of 25 to 30 years. The fuel cell modules, currently manufactured with a 7-year cell design life, go through periodic replacement, while the BOP systems, which consist of conventional mechanical and electrical equipment, are maintained over the plant life. The price for planned periodic fuel cell stack replacements is included in our long-term service agreements or in the per kWh price of the PPA. We expect to continually drive down the cost of O&M with an expanding fleet, which will leverage our investments in this area.  Additionally, we are continuing to develop fuel cells that have longer useful lives, which is intended to reduce O&M costs by increasing our scheduled module replacement period to in excess of seven years.

Fuel flexibility:Expense - Our SureSourcefuel cells directly convert chemical energy (fuel) into electricity, heat, water, and, in certain configurations, other value streams such as high purity hydrogen.  Our power plants can operate on a variety of existing and readily available fuels, including natural gas, renewable biogas,Renewable Biogas, directed biogasBiogas and propane.

Scalability: Our solutions are scalable, providing a cost-effective solution to adding power incrementally as demand grows, such as multi-megawatt fuel cell parks supporting the electric grid.

Quiet operation: Because they produce power without combustion and contain very few moving parts, our SureSource solutions operate quietly and without vibrations.

Easy to site:  Our SureSource power plants deliver electrical efficiencies of 47% for systems targeting CHP applications and 60% for systems targeting electric-only applications, such as grid support and data centers.  In a CHP configuration, our plants can deliver even higher system efficiency, depending on the application.  Considering utilized waste heat in CHP applications, total efficiency of systems using our power plants is typically 60% to 80% and can be as high as 90%.  These efficiencies compare to average U.S. fossil fuel plant generation efficiency of about 40% with grid line losses.  Increasing electrical efficiency and reducing fuel costs is a key element of our operating cost reduction efforts and a competitive advantage against traditional combustion-based technologies.

An important and differentiating factor that benefits fuel cells when comparing LCOE to other forms of power generation is that our solutions provide delivered electricity that minimizes or even avoids the costs of high voltage and distributed transmission. Energy can be produced right at the point of use. When comparing LCOE across different forms of power generation, transmission should be considered.  Power generation far from where the power is used requires transmission, which is a cost to ratepayers, creates risk of system outages, increases cyber attack risk, and is inefficient due to line losses of power in the transmission process. Recent events, including hurricanes along the Gulf


coast and Puerto Rico, wildfires in California, and significant snow and ice storms in the Northeastern U.S., prove that transmission systems are relatively easymore vulnerable to sitestorm-related and other interruptions than locally-generated energy.  

Recently, California was affected by virtuethe utility policy of Public Safety Power Shutoffs (“PSPS”), a preemptive effort by the utility companies to prevent wildfires from being started by electrical equipment during strong and dry wind conditions. Two plants manufactured and operated by FuelCell Energy remained operational as part of their ultra-clean emissions profile, modest space requirementsrespective microgrids in areas impacted by PSPS and quiet operation.  These characteristics facilitateprovided steady, reliable power to the installationUniversity of California, San Diego and the Santa Rita Jail during a time when over 3 million people were generally affected by PSPS.

Producing power plants in urban locations with scarce and expensive land.  A 10 MWnear the point of use also facilitates the development of CHP applications, since it is easier to find a user for fuel cell park only requires about one acre of land whereas an equivalent size solar array requires upwaste heat in distributed applications.  Using waste heat to seven to ten times as much land, illustrating howavoid burning fuel cell parks are easy to site in high density areas with constrained land resources,for thermal applications reduces LCOE (by avoiding fuel cost) and adjacent to the demand source thereby avoiding costly transmission construction.avoids additional carbon emissions and criteria pollutants.

Markets

SureSource Emissions Profile

Fuel cells are non-combustion devices that directly convert chemical energy (fuel) into electricity, heat and water.  Because fuel cells generate power electrochemically rather than by combusting (burning) fuels, they are more efficient in extracting energy from fuels and produce less CO2 and only trace levels of pollutants compared to combustion-type power generation.generation or traditional power sources used to firm-up intermittent power sources, such as wind and solar.  The following table illustrates the favorable emission profile of our SureSource power plants:

 

 

Emissions (Lbs. Per MWh)

 

Emissions (Lbs. Per MWh)

 

NOX

 

 

SO2

 

 

PM

 

 

CO2

 

 

CO2

with CHP

 

NOX

 

 

SO2

 

 

PM

 

 

CO2

 

 

CO2

with CHP

Average U.S. Fossil Fuel Plant(1)

 

 

0.48

 

 

 

2.6

 

 

 

0.08

 

 

 

1,533

 

 

NA

 

 

0.48

 

 

 

2.6

 

 

 

0.08

 

 

 

1,533

 

 

NA

Microturbine (60 kW)

 

 

0.44

 

 

 

0.008

 

 

 

0.09

 

 

 

1,596

 

 

520 - 680

Microturbine (60kW) (2)

 

 

0.44

 

 

 

0.008

 

 

 

0.09

 

 

 

1,596

 

 

520 - 680

Small Natural Gas Turbine(3)

 

 

1.15

 

 

 

0.008

 

 

 

0.08

 

 

 

1,494

 

 

520 - 680

 

 

1.15

 

 

 

0.008

 

 

 

0.08

 

 

 

1,494

 

 

520 - 680

SureSource - natural gas(4)

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

940

 

 

520 - 680

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

940

 

 

520 - 680

SureSource 4000 High Efficiency Plant

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

740

 

 

520 - 680

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

740

 

 

520 - 680

SureSource - utility scale carbon capture

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

80

 

 

n/a

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

 

80

 

 

n/a

SureSource - renewable biogas

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

< 0

 

 

< 0

 

 

0.01

 

 

 

0.0001

 

 

 

0.00002

 

 

< 0

 

 

< 0

 

For power plants operating on natural gas, higher electrical efficiency results in lower CO2, and also results in less fuel needed per kWh of electricity generated and Btu of heat produced. The high efficiency of our products results in significantly less CO2 per unit of power production compared to the average U.S. fossil fuel power plant, and the carbon emissions are reduced even further when configured for combined heat and power.CHP applications or biofuels.  When our power plants are operating on renewable biogas,Renewable Biogas, government agencies and regulatory bodies generally classify our power plantsthem as carbon neutral due to the renewable nature of the fuel source. The low CO2 emissions and low criteria pollutants from SureSource power plants have a significant impact on sustainability and air quality because they avoid emissions 24 hours a day.  The high capacity factor of baseload SureSource systems maximizes the impact of their environmental benefits.  The following table shows how the low emissions combined with high capacity factor result in emissions avoidance comparable to or better than intermittent renewable power sources.  While wind and solar renewable power sources may completely avoid these emissions while operating, given their low capacity factors, they avoid fewer emissions than fuel cells only because they operate for fewer hours per day. When wind and solar renewable power sources are not operating, higher emission resources are required to operate, thus diluting the benefits. Additionally, all renewable power sources have life cycle emissions associated with manufacture and disposal.


 

 

Capacity

 

 

Emissions, lb/MWh

 

 

Avoided Emissions, Tons/y per MW

 

 

 

Factor, %

 

 

NOX

 

 

PM10

 

 

CO2

 

 

NOX

 

 

PM10

 

 

CO2

 

Average US Grid (5)

 

 

 

 

 

 

1.10

 

 

0.05

 

 

1501

 

 

 

 

 

 

 

 

 

 

SureSource 3000 with CHP (6)

 

 

90

%

 

0.01

 

 

 

0.00

 

 

738

 

 

4.3

 

 

0.19

 

 

 

3,008

 

SureSource 4000

 

 

90

%

 

0.01

 

 

 

0.00

 

 

778

 

 

4.3

 

 

0.19

 

 

 

2,848

 

SureSource Biogas fuel

 

 

90

%

 

0.01

 

 

 

0.00

 

 

0

 

 

4.3

 

 

0.19

 

 

 

5,917

 

Rooftop Solar (7)

 

 

23

%

 

 

 

 

 

 

 

 

 

 

1.1

 

 

0.05

 

 

 

1,479

 

Utility Scale Solar PV (7)

 

 

29

%

 

 

 

 

 

 

 

 

 

 

1.4

 

 

0.06

 

 

 

1,874

 

Wind (7)

 

 

47

%

 

 

 

 

 

 

 

 

 

 

2.2

 

 

 

0.10

 

 

 

3,057

 

(1)

Updated Greenhouse Gas and Criteria Air Pollutant Emission Factors of the US Electric Generating Units in 2010; Argon National Laboratory September 2013.

(2)

The Regulatory Assistance Project, "Model Regulations for the Output of Specified Air Emissions from Smaller Scale Electric Generation Resources."

(3)

The Regulatory Assistance Project, "Model Regulations for the Output of Specified Air Emissions from Smaller Scale Electric Generation Resources."

(4)

SureSource estimates based on Company specifications.

(5)

Grid emissions rates for NOX and CO2. From EPA eGrid 2016, US Average non-baseload rates. Grid emissions rate for PM10 from ANL report "Updated Greenhouse Gas and Criteria Air Pollutant Emission Factors of the US Electric Generating Units in 2010", 2019 Projection.

(6)

SureSource estimates based on Company specifications.

(7)

Solar and Wind capacity factors are average of range from Lazard LCOE Analysis version 12, November 2018.

High electrical efficiency reduces customers' exposureBusiness Strategy

Our business model is based on multiple revenue streams, including power plant and component sales; recurring service revenue, mainly through long-term service agreements; recurring electricity, capacity and renewable attribute sales under PPAs and tariffs for projects we retain in our generation portfolio; and revenue from public and private industry research contracts under Advanced Technologies.

We are a complete solutions provider, controlling the design, manufacturing, sales, installation, operations and maintenance of our patented fuel cell technology under long-term power purchase and service agreements. When principally utilizing long-term PPAs, the end-user of the power or utility hosts the installation and only pays for power as it is delivered, avoiding up-front capital investment. We also develop projects and sell equipment directly to volatilecustomers, providing a complete solution of engineering, installing and servicing the fuel costs, minimizes operating costs,cell power plant under an engineering, procurement and provides maximum electrical output fromconstruction (“EPC”) agreement and a finite fuel source. long-term maintenance and service agreement.  In all cases, FuelCell Energy maintains the long-term recurring service obligation and associated revenues running conterminous with the life of the project.

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.  Our customer base includes utility companies, municipalities, universities, hospitals, government entities and a variety of industrial and commercial enterprises. Our leading geographic market is currently the United States, and we are pursuing opportunities in other countries around the world.

Our power plants achieveprovide electricity priced competitively to grid-delivered electricity in certain regions, and our strategy is to continue to reduce costs, which we believe will lead to wider adoption. Our business model involves full life-cycle management of our projects and fuel cell solutions, from design through operation and maintenance, including removal and recycling. By weight, approximately 93% of the entire power plant can be re-used or recycled at the end of its useful life.

Our extensive intellectual property portfolio consists of patents, trade secrets and collective experience, which acts as a foundation for expanding and maximizing our solutions portfolio.  



Market Adoption

We target vertical markets and geographic regions that:

1)

Benefit from and value clean distributed generation;

2)

Are located where there are high energy costs, poor grid reliability, and/or challenged transmission distribution lines;

3)

Have a need for distributed hydrogen for transportation or industry; and

4)

Are aligned with regulatory frameworks that harmonize energy, economic and environmental policies.

Our business model focuses on providing these vertical markets and geographic regions with highly efficient and affordable distributed generation that delivers de-centralized power in a low-carbon, virtually pollutant-free manner. Geographic markets that meet these criteria and where we are already well established include the Northeastern United States and California.  We have also installed and are operating plants in Europe and Asia, mainly South Korea, in addition to North America.

The Company has made significant progress with reducing costs and creating markets since the commercialization of our products in 2003, with more than 255 MW of our SureSource technology currently installed and operating. We believe that we can accelerate and expand the adoption of our distributed power generation solutions through (1) further reductions in the total cost of ownership, (2) continued education regarding the value that our solutions provide, (3) geographic and segment expansion, (4) growing demand for onsite generation, (5) microgrid expansion, and (6) product expansion across biofuels, carbon capture and local hydrogen.  

Fuel Cell Power Plant Ownership Structures

Historically, in the United States, customers or developers typically purchased our fuel cell power plants outright.  As the size of our fuel cell projects has grown and the availability of project capital has improved, project structures in the U.S. have transitioned to predominantly PPAs.  Under a PPA, the utility or end-user of the power commits to purchase power as it is produced for an extended period of time, typically 10-to-20 years.  Examples of customers that have previously entered into PPAs include universities, a pharmaceutical company, hospitals and utilities.  A primary advantage for the customer is that it does not need to commit its own capital or own a power generating asset, yet it enjoys the benefits of fuel cell power generation.

Once the PPA is executed and project financing is committed, construction of the fuel cell project can begin.  At or around the Commercial Operation Date, the project may be sold to a project investor or retained by the Company.  If the project is sold, revenue from the product sale is recognized, and the Company recognizes revenue separately for the long-term maintenance and service agreement over the term of that agreement.  If the project is retained, electricity, capacity and/or renewable energy credits are recognized monthly over the term of the PPA. We report the financial performance of retained projects as generation revenue and income.

Our decision to retain certain projects is based in part on the recurring, predictable cash flows these projects can offer us, the proliferation of PPAs in the industry and the potential access to capital.  Retaining PPAs affords the Company the full benefit of future cash flows under the PPAs, which are higher than if we sell the projects, although it requires more upfront capital investment and financing.  As of October 31, 2019, our operating portfolio of retained projects totaled 26.1 MW with an additional 79.5 MW under development or construction.  The Company plans to continue to grow this portfolio in a balanced manner, while also selling projects to investors when selling presents the best value and opportunity for the Company’s capital or meets the customer’s desired ownership structure.

Levelized Cost of Energy

Our fuel cell projects deliver power at a rate comparable to pricing from the grid in our targeted markets.  Policy programs that help to support adoption of clean distributed power generation often lead to below-grid pricing.  We measure power costs by calculating the Levelized Cost of Energy (“LCOE”) over the life of the project.  


There are several primary elements to LCOE for our fuel cell projects, including:

1)

Capital cost;

2)

Operations and maintenance cost; and

3)

Fuel expense.

Given the level of integration in our business model of manufacturing, installing and operating fuel cell power plants, there are multiple areas and opportunities for cost reductions. We are actively managing and reducing costs in all three LCOE areas as follows:

Capital Cost - Capital costs of our projects include costs to source material, manufacture, install, interconnect, finance and complete any on-site application requirements such as configuring for a microgrid and/or heating and cooling applications.  We have reduced the product cost of our megawatt-class power plants by more than 60% from the first commercial installation in 2003. Further cost reductions will primarily be obtained from higher production volumes and engineering efficiency, which are expected to lead to reductions in the per-unit cost of materials purchased, supported by continued engineering, supply chain and manufacturing cost reductions.  Our supply chain organization is actively engaged in strategic initiatives with suppliers to optimize production efficiencies and reduce waste while increasing quality and platform uptime, and lowering overall product/platform costs. Strategic sourcing initiatives are established to ensure adequate production capacity is qualified in advance of production volume scale up. Our industrial engineering, manufacturing and quality operations continue to embrace Lean Six Sigma principles throughout, focusing on continuous improvement, elimination of waste and increases in yields and quality while reducing cost. Larger projects offer scale and the opportunity to consolidate systems and reduce costs. In addition to these cost reduction efforts, our technology roadmap includes plans to increase the output of our power plants, which will add further value for our customers and reduce LCOE. We are always working to obtain the lowest cost financing for our generation projects.

Operations and Maintenance Cost – Through secure connections, we remotely monitor, operate, and maintain our fuel cell power plants to optimize performance and meet or exceed expected operating parameters throughout the operational lives of the plants. Operations and maintenance (“O&M”) is a key driver for power plants to deliver on projected electrical output and revenue.  Each model of our SureSource power plants has a design life of 25 to 30 years. The fuel cell modules, currently manufactured with a 7-year cell design life, go through periodic replacement, while the BOP systems, which consist of conventional mechanical and electrical equipment, are maintained over the plant life. The price for planned periodic fuel cell stack replacements is included in our long-term service agreements or in the per kWh price of the PPA. We expect to continually drive down the cost of O&M with an expanding fleet, which will leverage our investments in this area.  Additionally, we are continuing to develop fuel cells that have longer useful lives, which is intended to reduce O&M costs by increasing our scheduled module replacement period to in excess of seven years.

Fuel Expense - Our fuel cells directly convert chemical energy (fuel) into electricity, heat, water, and, in certain configurations, other value streams such as high purity hydrogen.  Our power plants can operate on a variety of existing and readily available fuels, including natural gas, Renewable Biogas, directed Biogas and propane.  Our SureSource power plants deliver electrical efficiencies of 47% tofor systems targeting CHP applications and 60% or higher depending onfor systems targeting electric-only applications, such as grid support and data centers.  In a CHP configuration, location, and application, andour plants can deliver even higher totalsystem efficiency, in a CHP configuration, depending on the application.  This representsConsidering utilized waste heat in CHP applications, total efficiency of systems using our power plants is typically 60% to 80% and can be as high as 90%.  These efficiencies compare to average U.S. fossil fuel plant generation efficiency of about 40% with grid line losses.  Increasing electrical efficiency and reducing fuel costs is a key element of our operating cost reduction efforts and a competitive advantage against traditional combustion-based technologies.

An important and differentiating factor that benefits fuel cells when comparing LCOE to other forms of power generation is that our solutions provide delivered efficiencyelectricity that minimizes or even avoids the costs of high voltage and distributed transmission. Energy can be produced right at the point of use. When comparing LCOE across different forms of power generation, transmission should be considered.  Power generation far from where the power is used requires transmission, which is a cost to ratepayers, creates risk of system outages, increases cyber attack risk, and is inefficient due to line losses of power in the transmission process. Recent events, including hurricanes along the Gulf


coast and Puerto Rico, wildfires in California, and significant snow and ice storms in the Northeastern U.S., prove that transmission systems are more vulnerable to storm-related and other interruptions than locally-generated energy.  

Recently, California was affected by the utility policy of Public Safety Power Shutoffs (“PSPS”), a preemptive effort by the utility companies to prevent wildfires from being started by electrical equipment during strong and dry wind conditions. Two plants manufactured and operated by FuelCell Energy remained operational as our distributed solutions generatepart of their respective microgrids in areas impacted by PSPS and provided steady, reliable power to the University of California, San Diego and the Santa Rita Jail during a time when over 3 million people were generally affected by PSPS.

Producing power near the point of use also facilitates the development of CHP applications, since it is easier to find a user for fuel cell waste heat in distributed applications.  Using waste heat to avoid burning fuel for thermal applications reduces LCOE (by avoiding fuel cost) and avoids additional carbon emissions and criteria pollutants.

Markets

Vertical Markets

Access to clean, affordable and reliable power has transformed how most of the line losses inherentworld lives today. The ability to provide power cleanly and efficiently is taking on greater importance and urgency in transmission.many regions of the world. FuelCell Energy’s products and services are specifically designed to deliver such clean, efficient power globally.  

Central generation and its associated transmission requirements and distribution grid are difficult to site, costly, prone to interruption and generally take many years to permit and build.  Some types of power generation that were widely adopted in the past, such as nuclear and coal power, are no longer welcome in certain regions of the world.  The electric gridcost and impact to public health and the environment of pollutants and greenhouse gas emissions impact the siting of new power generation.  The attributes of SureSource power plants address these challenges by providing virtually particulate-free baseload power and, where desired, thermal energy at the point of use in a highly-efficient process that is affordable to consumers.

We target distinct markets, including:

Utilities and independent power producers;

Industrial and process applications;

Education and health care;

Data centers and communication;

Wastewater treatment;

Government;

Commercial and hospitality; and

Microgrids.

The utilities and independent power producers market is our largest vertical market with customers that include utilities on the East and West coasts of the United States, such as Avangrid Holdings, Long Island Power & Light, Southern California Edison and Pacific Gas & Electric. In Europe, utility customers include E.ON Connecting Energies, one of the largest utilities in the world, and Switzerland-based ewz.  In South Korea, we are contracted to operate and maintain a 20 MW plant for Korea Southern Power Company (“KOSPO”).

Our SureSource power plants are producing power for a variety of industrial, commercial, municipal and government customers, including manufacturing facilities, pharmaceutical processing facilities, universities, healthcare facilities and wastewater treatment facilities.  These institutions desire efficient, clean and continuous power to reduce operating expenses, reduce greenhouse gas emissions and avoid pollutant emissions to meet their sustainability goals, while boosting resiliency and limiting dependence on the distribution grid.  CHP applications further support economic and sustainability initiatives by minimizing or avoiding the use of combustion-based boilers for heat.  Our SureSource power plants are unique in their ability to run on biofuels. With the growing market for anaerobic digestion (the production of Biogas from the breakdown of biodegradable materials in the absence of oxygen) and increasingly stringent regulations regarding air quality, we see a growing market opportunity that is only approximately 35% electricallyperfectly suited for our fuel


cell design. SureSource power plants operating on Renewable Biogas are an especially compelling value proposition as they convert a waste product into clean electricity and heat, while eliminating flaring, which addresses certain economic and sustainability challenges faced by our customers. Biogas is generated by the decay of organic material (i.e., biomass). This decaying organic material releases methane, or Biogas. As a harmful greenhouse gas, Biogas cannot be released directly into the atmosphere. Flaring creates pollutants and wastes this potential fuel source. Capturing and using Biogas as a fuel addresses these challenges and provides a carbon-neutral renewable fuel source. Our patented, proprietary clean-up skid, SureSource TreatmentTM, provides an economical and reliable system for treating Biogas for use on-site at the Biogas production facility.

Wastewater treatment facilities, food and beverage processors and agricultural operations produce Biogas as a byproduct of their operations. Disposing of this greenhouse gas can be harmful to the environment if released into the atmosphere or flared. Our SureSource power plants convert this Biogas into electricity and heat efficiently and economically. Wastewater facilities with anaerobic digesters are an attractive market for our SureSource solution including the power plant as well as treatment of the Biogas. Many wastewater treatment plants currently flare Biogas produced in the anaerobic digestion process, emitting NOx, SOx and particulates into the atmosphere, which does not meet many air quality regulations. Since our fuel cells operate on the Renewable Biogas produced by the wastewater treatment process and the heat is used to support daily operations at the wastewater treatment facility, the overall thermal efficiency of these installations is high, supporting economics and sustainability. In addition, the fuel cell does not emit the harmful NOx, SOx and particulates that come out of a flare. On-site Biogas projects are more efficient and typically does not support CHP configurations.more economical than Directed Biogas projects because less gas processing is required compared to the processing needed to get the on-site gas to pipeline quality.  The unique chemistry of carbonate fuel cells allows them to use low Btu on-site Biogas with no reduction in output or efficiency compared to operation on natural gas.  We have developed proprietary Biogas cleanup and contaminant monitoring equipment which, combined with the inherent suitability of the carbonate fuel cell chemistry, gives us an advantage in on-site Biogas applications.  Our SureSource 1500 and SureSource 3000 power plants are the only systems certified to CARB emissions standards under the Distributed Generation Certification Program for operation with on-site Biogas.

Our fuel cell solutions are also well suited for microgrid applications, either as the sole source of power generation or integrated with other forms of power generation.  We have fuel cells operating as microgrids at universities and municipalities, including one university microgrid owned by Clearway Energy and a municipal-based microgrid owned by Avangrid.  For the municipal-based system, under normal operation, the fuel cell supplies power to the grid.  If the grid is disrupted, the fuel cell plant will automatically disconnect from the grid and power a number of critical municipal buildings. Heat from this municipal-based fuel cell plant is used by the local high school. As mentioned above, our fuel cell-based microgrids have continued operating during PSPS events in California.

Manufacturing and Service Facilities

We design and manufacture the core SureSource fuel cell components that are stacked on top of each other to build a fuel cell stack.  For MW-size power plants, four fuel cell stacks are combined to build a fuel cell module.  To complete the power plant, the fuel cell module or modules are combined with the BOP.  The mechanical BOP processes the


incoming fuel such as natural gas or renewable biogas and includes various fuel handling and processing equipment such as pipes and blowers. The electrical BOP processes the power generated for use by the customer and includes electrical interface equipment such as an inverter.  The BOP components are either purchased directly from suppliers or the manufacturing is outsourced based on our designs and specifications.  This strategy allows us to leverage our manufacturing capacity, focusing on the critical aspects of the power plant where we have specialized knowledge, expertise and possess extensive intellectual property.  BOP components are shipped directly to a project site and are then assembled with the fuel cell module into a complete power plant.

We operate a 167,000 square-foot manufacturing facility in Torrington, Connecticut where we produce the individual cell packages and assemble the fuel cell modules. This facility also houses our global service center. It is expected that, in early fiscal year 2019, ourOur completed modules will beare conditioned in Torrington as well, and shipped directly to customer sites, rather than first being shipped to our Danbury, Connecticut location for conditioning as in the past. This recent relocation of conditioning activities to the Torrington, Connecticut factory location improves the cost and efficiency of the final manufacturing process.sites.  Annual capacity (module manufacturing, final assembly, testing and conditioning) is 100 MW per year with full utilization under the Torrington facility’s current configuration.configuration when being fully utilized.  The Torrington facility is sized to accommodate eventual annual production capacity of 200 MW per year.

The expansion of the Torrington facility has enabled the consolidation of warehousing and service facilities, which has resulted in reduced leasing expenses.  The additional space is also expected to lead to additional manufacturing efficiencies by providing the needed space to re-configure the manufacturing lines without interrupting production.  As demand supports, a second phase will be undertaken to add manufacturing equipment to increase annual capacity to 200 MW.  

We design and manufacture the core SureSource fuel cell components that are stacked on top of each other to build a fuel cell stack.  For megawatt-scale power plants, four fuel cell stacks are combined to build a fuel cell module.  To complete the power plant, the fuel cell module or modules are combined with the BOP.  The State of Connecticut had previously extended two low interest long term loansmechanical BOP processes the incoming fuel such as natural gas or Renewable Biogas and includes various fuel handling and processing equipment such as pipes and blowers. The electrical BOP processes the power generated for use by the customer and includes electrical interface equipment such as an inverter.  The BOP components are either purchased directly from suppliers or the manufacturing is outsourced based on our designs and specifications.  This strategy allows us to us (one for each


leverage our manufacturing capacity, focusing on the critical aspects of the two phases)power plant where we have specialized knowledge and upexpertise and possess extensive intellectual property.  BOP components are shipped directly to $10.0 million of tax credits.  Each loan was anticipated to be $10.0 million,a project site and are then assembled with an interest rate of 2.0% andthe fuel cell module into a term of 15 years.  Originally, up to 50% of the principal was forgivable if certain job creation and retention targets are met.  We previously received the proceeds of the first $10 million loan to support the first phase of the expansion and have received extensions from the State of Connecticut to meet the required job targets.complete power plant.

The Torrington production and service facility and the Danbury corporate headquarters and research and development facility are ISO 9001:2015 and ISO 14001:2015 certified and our Field Service Operationsoperation (which maintains the installed fleet of our plants) is ISO 9001:2015 certified, reinforcing the tenets of the FuelCell Energy Quality Management SystemEnergy’s quality management system and our core values of continual improvement and commitment to quality, environmental stewardship, and customer satisfaction. Sustainability is promoted throughout our organization. We manufacture SureSource Products and manage them through end-of-life using environmentally friendly business processes and practices, certified to ISO 14001:2015. We continually improve how we plan and execute across the entire product life cycle. We strive for “cradle-to-cradle” sustainable business practices, incorporating sustainability in our corporate culture. We utilize “Design for Environment” principles in the design, manufacture, installation and servicing of our power plants. “Design for Environment” principles aim to reduce the overall human health and environmental stewardship.impact of a product, process or service, when such impacts are considered across the product’s lifecycle. We maintain a chain of custody and responsibility of our SureSource products throughout the product life cycle. When our plants reach the end of their useful lives, we can refurbish and re-use certain parts and then recycle most of what we cannot re-use. By weight, approximately 93% of the entire power plant can be re-used or recycled at the end of its useful life.

We have a manufacturing and service facility in Taufkirchen, Germany that has the capability to perform final module assembly for up to 20 MW per year of sub-megawatt fuel cell power plants forto service the remaining sub-megawatt fuel cell power plantsplant demand in the European market. Our European service activities are also operated out of this location. Our operations in Europe are certified under both ISO 9001:2015 and ISO 14001:2015.

We have a research and development facility in Calgary, Alberta, Canada that is focused on the engineering and development of the Company’s SOFC and SOEC technology.

Raw Materials and Supplier Relationships

We use various commercially available raw materials and components to construct a fuel cell module, including nickel and stainless steel, which are key inputs toin our manufacturing process. Our fuel cell stack raw materials are sourced from multiple vendors and are not considered precious metals.  We have a global integrated supply chain.  While we manufacture the fuel cell module in our Torrington facility, the electrical and mechanical BOPs are assembled by and procured from several suppliers. All of our suppliers must undergo a stringent and rigorous qualification process. We continually evaluate and qualify new suppliers as we diversify our supplier base in our pursuit of lower costs and consistent quality. We purchase mechanical and electrical BOP componentrycomponents from third party vendors, based on our own proprietary designs.

Engineering, Procurement and Construction (“EPC”)

We provide customers with complete turn-key solutions, including the development, engineering, procurement, construction, interconnection and operations for our fuel cell projects.  From an EPC standpoint, we have an extensive history of safe and timely delivery of turn-key projects.  We have developed relationships with many design firms and licensed general contractors and have a repeatable, safe, and efficient execution philosophy that has been successfully demonstrated in numerous jurisdictions, both domestically and abroad, all with an exemplary safety record.  The ability to rapidly and safely execute installations minimizes high costhigh-cost construction period financing and can assist customers in certain situations when the commercial operating dateCommercial Operations Date is time sensitive.


Services and Warranty Agreements

We offer a comprehensive portfolio of services, including engineering, project management and installation, and long-term operating and maintenance programs, including trained technicians that remotely monitor and operate our plants around the world, 24 hours a day and 365 days a year.  We directly employ field technicians to service the power plants and maintain service centers near our customers to ensuresupport the high availabilityAvailability of our plants.  

For all operating fuel cell plants not under a PPA, the customers purchase long-term service agreements, some of which have terms of up to 20 years. Pricing for service contracts is based upon the value of service assurance and the markets in which we compete and includes all future maintenance and fuel cell module exchanges.  Each model of our SureSource power plants has a design life of 25 to 3025-to-30 years. The fuel cell modules, with legacy modules having a 5 to5-year cell design life and current production modules having a 7-year cell design life, go through periodic replacement, while the BOP systems, which consist of conventional mechanical and electrical equipment, are maintained over the plant life.life of the plant.

Under the typical provisions of both our service agreements and PPAs, we provide services to monitor, operate and maintain power plants to meet specified performance levels. Operations and maintenance is a key driver for power plants to deliver their projected revenue and cash flows.  Many of our PPAs and service agreements include guarantees for system performance, including electrical output and heat rate. Should the power plant not meet the minimum performance levels, we may be required to replace the fuel cell module with a new or used replacement module and/or pay performance penalties.  The service aspects of our business model provide a recurring and predictable revenue stream for the Company.  We have committed future production for scheduled fuel cell module exchanges under service agreements and PPAs through the year 2038.  The pricing structure of the service agreements incorporates these scheduled fuel cell module exchanges and the committed nature of this production facilitates our production planning. Many of our PPAs and service agreements include guarantees for system performance, including electrical output and heat rate. Should the power plant not meet the minimum performance levels, we may be required to replace the fuel cell module with a new or used replacement module and/or pay performance penalties.  Our goal is to optimize the power plants to meet expected operating parameters throughout their contracted service term.

In addition to our service agreements, we provide a warranty for our products against manufacturing or performance defects for a specific period of time against manufacturing or performance defects.time. The warranty term in the U.S. is typically 15 months after shipment or 12 months after acceptance of our products.  We accrue for estimated future warranty costs based on historical experience.

License Agreements and Royalty Income; Relationship with POSCO Energy

We have historicallyLicense Agreement with ExxonMobil Research and Engineering Company

EMRE and FuelCell Energy began working together in 2016 under an initial Joint Development Agreement with a focus on better understanding the fundamental science behind carbonate fuel cells for use in advanced applications and specifically how to increase efficiency in separating and concentrating carbon dioxide from the exhaust of natural gas-fueled power generation.

In June 2019, we entered into a license agreement with EMRE, a wholly-owned subsidiary of ExxonMobil Corporation, to facilitate the further development of our SureSource CaptureTM product (the “EMRE License Agreement”). Pursuant to the EMRE License Agreement, the Company granted EMRE and its affiliates a non-exclusive, worldwide, fully-paid, perpetual, irrevocable, non-transferable license and right to use our patents, data, know-how, improvements, equipment designs, methods, processes and the like 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, in exchange for a $10 million payment. Such right and license is sublicenseable to third parties performing work for or with EMRE or its affiliates, but shall not otherwise be sublicenseable.

The EMRE License Agreement facilitated the execution of a new joint development agreement with EMRE, effective October 31, 2019 and executed in fiscal year 2020, pursuant to which we will continue exclusive research and development efforts with EMRE to evaluate and develop new and/or improved carbonate fuel cells to reduce carbon dioxide emissions from industrial and power sources, in exchange for (a) payment of (i) an exclusivity and technology access fee of $5.0 million, (ii) up to $45.0 million for research and development efforts, and (iii) milestone-based payments of up to $10.0 million after certain technological milestones are met, and (b) certain licenses.  As a result of the execution of the EMRE License Agreement in fiscal year 2020, the associated revenue and backlog will be accounted for in fiscal year 2020.



License Agreements with POSCO Energy

From approximately 2007 through 2015, we relied on POSCO Energy Co., Ltd. (“POSCO Energy”) to develop and grow the South Korean and Asian markets for our products and services.  

We record license fees and are entitled to receive royalty income from POSCO Energy related to manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012.  The Cell Technology Transfer Agreement ("CTTA"), executed in October 2012, provides POSCO Energy with the technology rights to manufacture, sell, distribute and service our SureSource power plants300, SureSource 1500 and SureSource 3000 fuel cell technology in South Korea and the right to sell power plants throughout Asia. POSCO Energy built a cell manufacturing facility in Pohang, South Korea which became operational in late 2015. Annual production capability is 100 MW and the building is sized to accommodate up to 200 MW of annual production.

In October 2016, the Company and POSCO Energy extended the terms of the 2007 and 2009 licensemanufacturing and technology transfer agreements to be consistent with the term of the CTTA, which expires on October 31, 2027.   The CTTA requires POSCO Energy to pay us a 3.0% royalty on POSCO Energy net product sales, as well as a royalty on scheduled fuel cell module replacements under service agreements for modules that were built by POSCO Energy and installed at plants in Asia under the terms of long termlong-term service agreements between POSCO Energy and its customers. While the aforementioned manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012 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.

In March 2017, we entered into a memorandum of understanding (“MOU”) with POSCO Energy to permit us to directly develop the Asian fuel cell business, including the right for us to sell SureSource solutions in South Korea and the broader Asian market. In June 2018, POSCO Energy advised us in writing that it was terminating the MOU effective July 15, 2018.  Pursuant to the terms of the MOU, notwithstanding its termination, we will continue to execute on sales commitments in Asia secured in writing prior to July 15, 2018. POSCO Energy has ceased communications with us.   2018, including the 20 MW power plant installed for KOSPO.

On or about November 2, 2018, POSCO Energy served FuelCell Energy with an arbitration demand, initiating a proceeding to resolve various outstanding amounts between the companies. The parties amicably resolved the arbitration proceeding in July 2019. Since that date, we have made numerous attempts to engage with POSCO Energy to address the need for deployment of carbonate fuel cell technology in the Asian market in accordance with the requirements of the manufacturing and technology transfer agreements, our understanding of the desire of the South Korean government to advance fuel cell and hydrogen technology, and the needs of the Asian market, but have made little progress to date.

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 aforementioned manufacturing and technology transfer agreements to KFC, but retained distribution rights, including trademarks, and severed its own liability under the aforementioned manufacturing and technology transfer agreements. We believe that these actions are all in material breach of the terms of the CTTA and other manufacturing and technology transfer agreements and are effectively a misappropriation of the Company’s intellectual property. We have made counterclaimsformally objected to POSCO Energy’s spin-off, and believe we have valid defensesPOSCO Energy has posted a bond to secure any liabilities to FuelCell Energy arising out of the claims made by POSCO Energy. The Company does not currently expect the results of this arbitration to have a material adverse effect on the Company.  


spin-off. In light of recent developmentsthe situation with POSCO Energy, we are evaluating all of our options with respect to our relationship and agreements with POSCO Energy.

Advanced Technologies Programs (Third Party Funded Research and Development)

We undertake both privately-funded and public research and development to expandEnergy, including trade related matters, POSCO Energy’s material breach of its obligations under the markets for our power plants, reduce costs, and expand our technology portfolio in complementary high-temperature fuel cell systems. This research builds on our expertiseCTTA and the versatilitymanufacturing and technology transfer agreements, and the misappropriation of our fuel cell power plants and contributes to the development of potentially new end markets for our commercial product solution portfolio. Our power plants can be configured to provide a number of value streams including clean electricity, high quality usable heat, hydrogen suitable for vehicle fueling or industrial purposes as well as a configuration to concentrate CO2 from coal, biomass and natural gas fired power plants and industrial applications.  Our Advanced Technologies Programs are focused on commercializing solutions within three strategic areas: (1) carbon capture for emissions reduction and power generation; (2) distributed hydrogen production, compression, and recovery; and (3) SOFC/SOEC for stationary power generation and energy storage. The revenue and associated costs from government and third party sponsored research and development is classified as “Advanced Technologies contract revenues” and “Cost of Advanced Technologies contract revenues,” respectively, in our consolidated financial statements.intellectual property.

We have historically worked on technology development with various U.S. government departments and agencies, including the Department of Energy (DOE), the Department of Defense (DOD), the Environmental Protection Agency (EPA), the Defense Advanced Research Projects Agency (DARPA), the Office of Naval Research (ONR), and the National Aeronautics and Space Administration (NASA). Government funding, principally from the DOE, provided 8%, 9% and 8% of our revenue for the fiscal years ended October 31, 2018, 2017, and 2016, respectively.

Significant commercialization programs on which we are currently working include:

Carbon Capture – Power generation and industrial applications are the source of two-thirds of the world’s carbon emissions. Coal and natural gas are abundant, low cost resources that are widely used to generate electricity in developed and developing countries, but burning these fuels, as well as burning biomass, results in the emission of criteria pollutants and CO2.  Cost effective and efficient carbon capture from power generation and industrial applications globally represents a large market because it could enable clean use of all available fuels. Our carbonate fuel cell technology separates and concentrates CO2 as a side reaction during the power generation process. Capturing CO2 as a side reaction while generating additional valuable power is an approach that could be more cost effective than other systems which are being considered for carbon capture.

We announced a five year agreement with ExxonMobil (NYSE: XOM) in 2016 to pursue research and development of fuel cell carbon capture for central generation gas-fired power plants. Research and development under that agreement has progressed and continues to progress at an accelerated pace. In 2018, we completed the design and engineering work for the installation of a megawatt-class carbon capture fuel cell power plant at a mixed coal/gas-fired power station owned by Alabama Power, a subsidiary of Southern Company.  This project was supported by an award from the DOE and ExxonMobil. The Company has been working to secure funding for the second phase of the project, which would include construction of the carbon capture fuel cell power plant.

Distributed Hydrogen Production, Compression, and Recovery - On-site or distributed hydrogen generation, produced cleanly, represents an attractive market.  Our high temperature fuel cells generate electricity directly from a fuel by reforming the fuel inside the fuel cell to supply hydrogen for the electrical generation process.  Gas separation technology can be added to capture hydrogen that is not used by the electrical generation process, and we term this configuration SureSource Hydrogen. This value-added proposition may be compelling for industrial users of hydrogen and transportation applications, further summarized as follows:

Fueling Applications:  We previously announced a renewable hydrogen generation project under a hydrogen power purchase agreement with Toyota (NYSE: TM).  The multi-megawatt SureSource Hydrogen plant will be located at the Port of Long Beach, California and will use renewable directed biogas for fuel.  Toyota will purchase the hydrogen output of approximately 1,200 kg per day to fuel its fuel cell cars that arrive at the Port from overseas as well as fuel a Class 8 fuel cell truck located at the Port.  Toyota will also purchase a portion of the renewable electricity generated by the fuel cell, with the remainder of the electricity to be sold to the local utility under the California BioMAT program.


We previously demonstrated renewable hydrogen generation under a three year project at the Orange County Wastewater Treatment Facility in Irvine, California, utilizing renewable biogas to supply hydrogen for use in fuel cell vehicle fueling and to produce clean renewable electricity.  The demonstration was performed under a sub-contract to Air Products (NYSE: APD), with funding provided by the DOE, California Air Resources Board, South Coast Air Quality Management District, Orange County Sanitation District, and Southern California Gas Company.

SOFC/SOEC Development and Commercialization: We are working towards commercialization of solid oxide fuel cell technology to target long-duration storage applications utilizing hydrogen as an energy carrier and storage medium.  SOFC power plant design and manufacturing is complementary to our carbonate technology-based MW scale product line and affords us the opportunity to leverage our field operating history, existing expertise in power plant design, fuel processing and high volume manufacturing capabilities, and our existing installation and service infrastructure.  Additionally, the target market for storage applications is electric utilities, which is a market in which we are already active.  

We perform SOFC/SOEC research and development at our Danbury facility as well as at our dedicated SOFC/SOEC facility in Calgary, Canada.  We are working under a variety of awards from the DOE for development and commercialization of both SOFC and SOEC.  We are currently installing a demonstration SOFC power plant at the Clearway Center in Pittsburgh, Pennsylvania.

We believe there are significant market opportunities for distributed hydrogen production, carbon capture, solid oxide fuel cell solutions and energy storage. The demonstration projects described above are steps on the commercialization road map as we leverage third-party resources and funding to accelerate the commercialization and realize the market potential for each of these solutions.

Company Funded Research and Development

In addition to research and development performed under research contracts, including as described in Advanced Technology Programs, we also fund our own research and development projects including extending module life, increasingactivities to support the power output of our modulescommercial fleet with product enhancements and reducing the cost of our products.  Current initiatives include increasing the net power output of the fuel cell stacks to 375 kW from 350 kW.  We also recentlyimprovements. During fiscal year 2018, we launched our seven-year life stacks, which extended our stack life from five years to seven years. Greater power output and improved longevity are expected to lead to improved gross margin profitability on a per-unit basis for each power plant sold and improved profitability of service contracts, which willare expected to support expanding gross margins for the Company.


In addition to output and life enhancements, we designed and introduced the 3.7 megawattMW SureSource 4000 configuration with increased electrical efficiency, and we continually invest in cost reduction and improving the performance, quality and serviceability of our plants. These efforts continuallyare intended to improve our value proposition.

Company-funded research and development is included in Research and development expenses (operating expenses) in our consolidated financial statements.  The total research and development expenditures in the consolidated statement of operations, including third party and Company-funded expenditures, are as follows:

 

 

Years Ended October 31,

 

 

Years Ended October 31,

 

 

2018

 

 

2017

 

 

2016

 

(dollars in thousands)

 

2019

 

 

2018

 

 

2017

 

Cost of Advanced Technologies contract revenues

 

$

10,360

 

 

$

12,728

 

 

$

11,879

 

 

$

12,884

 

 

$

10,360

 

 

$

12,728

 

Research and development expenses

 

 

22,817

 

 

 

20,398

 

 

 

20,846

 

 

 

13,786

 

 

 

22,817

 

 

 

20,398

 

Total research and development

 

$

33,177

 

 

$

33,126

 

 

$

32,725

 

 

$

26,670

 

 

$

33,177

 

 

$

33,126

 

 


BacklogBacklog

 

TheBacklog represents definitive agreements executed by the Company had a contract backlog totaling approximately $1.2 billion as of October 31, 2018 compared to $554.2 million as of October 31, 2017. As of October 31, 2018 and 2017, backlog included approximately $316.0 million and $182.3 million, respectively, of service agreements.  Generationour customers.

Contract backlog as of October 31, 2019 and 2018 and 2017 was $839.5 million and $296.3 million, respectively.  consisted of the following (in thousands):

 

 

2019

 

 

2018

 

Commercial:

 

 

 

 

 

 

 

 

Product

 

$

 

 

$

1

 

Service (a)

 

 

169,371

 

 

 

251,650

 

Generation

 

 

1,114,366

 

 

 

839,483

 

License (b)

 

 

22,931

 

 

 

 

Total Commercial

 

$

1,306,668

 

 

$

1,091,134

 

 

 

 

 

 

 

 

 

 

Advanced Technologies

 

 

 

 

 

 

 

 

Funded

 

$

11,758

 

 

$

15,934

 

Unfunded

 

 

220

 

 

 

16,449

 

Total Advanced Technologies

 

$

11,978

 

 

$

32,383

 

 

 

 

 

 

 

 

 

 

Total Contract Backlog

 

$

1,318,646

 

 

$

1,123,517

 

(a)

In July 2018, we contracted to operate and maintain a 20 MW plant for Korea Southern Power Company (“KOSPO”). This contract was originally included in backlog as a twenty year contract, which reflected the total potential term of the contract. Under the terms of the contract, KOPSO has a renewal option in year ten. Thus, in conjunction with the adoption of Accounting Standards Codification Topic 606, “Revenue from Contracts with Customers,” which was adopted and implemented by the Company on November 1, 2018, service backlog was reduced by $64.3 million in fiscal year 2018 and fiscal year 2019 compared to the amounts previously disclosed. Should KOSPO exercise its renewal option, service backlog will be adjusted accordingly.  

(b)

License backlog was not included prior to the adoption of Accounting Standards Update (“ASU”) 2014-09, “Revenue from Contracts with Customers,” which was implemented by the Company on November 1, 2018.

Service and generation backlog as of October 31, 20182019 had ana weighted average term of approximately 1918 years, weightedwith weighting based on dollar backlog and utility service contracts of up to twenty20 years in duration.  As of October 31, 2018, product sales backlog totaled approximately $1.0 thousand compared to $31.3 million as of October 31, 2017.  As of October 31, 2018, Advanced Technologies contracts backlog totaled $32.4 million, of which $15.9 million was funded and $16.5 million was unfunded, compared to $44.3 million as of October 31, 2017, of which $24.5 million was funded and $19.8 million was unfunded.duration at inception.  Generally, our government research and development contracts are subject to the risk of termination at the convenience of the contracting agency.

Our backlog amount outstanding is not indicative of amounts to be earned in the upcoming fiscal year.  The specific elements of backlog may vary in terms of timing and revenue recognition from less than one year to up to twenty20 years.  In addition, the

The Company may choose to sell or retain operating power plants on the balance sheet, rather than selling them, thus creating variability in timing of revenue recognition.  Accordingly, the timing and the nature of our business makes it difficult to predict what portion of our backlog will be filled in the next fiscal year.

 

Backlog represents definitive agreements executed by the Company and our customers. As of October 31, 2018, we also had project awards totaling between $600.0 million and $1.0 billion, depending on whether the projects are sold or retained as part of our generation portfolio.  Project awards referenced by the Company are notifications that the Company has been selected, typically through a competitive bidding process, to enter into definitive agreements. These awards have been publicly disclosed.  Negotiations are in process and if successfully completed, project awards will become backlog. 


Fuel Cell TechnologiesTechnologies

Fuel cell technologies are classified according to the electrolyte used by each fuel cell type. Our SureSource technology utilizes a carbonate electrolyte. Carbonate-based fuel cells are well-suited for megawatt-class applications, offering a number of advantages over other types of fuel cells in the markets we are pursuing. our target markets.

These advantages include carbonate fuel cells'include:

The ability of Carbonate Fuel Cells to generate electricity directly from readily available fuels such as natural gas or renewable biogas, lowerRenewable Biogas;

Lower raw material costs as the high temperature of the fuel cell enables the use of commodity metals rather than precious metals, and high-qualitymetals;

Scalability to leverage on-site components to reduce cost;

High-quality heat suitable for CHP applications. applications; and

The ability to perform advanced applications, including carbon capture and hydrogen production to provide fuel for fuel cell vehicles.

We are also actively developing SOFC technology, as discussed in the prior “Advanced Technologies Programs” section.  Other fuel cell types that may be used for commercial applications include phosphoric acid and PEM.


The following table illustrates the four principal types of fuel cells, highlighting typical market applications, industry estimates of the electrical efficiency, expected capacity range, and versatility for applications in addition to power generation:

 

System Size Range

MW- Class

 

Sub-MW- Class

 

Micro CHP

 

Mobile

System Size Range

Carbonate (CFC)

 

Carbonate (CFC)

Solid Oxide (SOFC)

Phosphoric Acid (PAFC)

 

PEM / SOFC

 

Polymer Electrolyte Membrane (PEM)

Plant size

1.4 MW - 3.7 MW Plus

 

250 kW – 400 kW

up to 300 kW

up to 440 kW

 

< 10 kW

 

5 - 100 kW

Typical Application

Utilities, Universities, Commercial & Industrial

 

Universities, Commercial & Industrial

Commercial Buildings & “Big-Box” Retail Stores

Commercial Buildings & Grocery Stores

 

Residential and Small Commercial

 

Transportation

Fuel

Natural gas, On-site or Directed Biogas, Others

 

Natural gas, On-Site or Directed Biogas, Others

Natural Gas

Natural Gas

 

Natural Gas

 

Hydrogen

Advantages

High Efficiency, Scalable, Fuel Flexible & CHP

 

High Efficiency, Fuel Flexible & CHP

High Efficiency

CHP

 

Load Following & CHP

 

Load Following & Low Temperature

Electrical efficiency

43%-47-47% to 60%

 

43% - 47%

41% - 65%

40% - 42%

 

25% - 35%

 

25% - 35%

Combined Heat & Power (CHP)

Yes, Steam & Chilling

 

Yes, Hot Water

Depends on Technology Used

Limited:  Hot Water, Chilling

 

Suitable for Facility Heating

 

No

Carbon Capture

Yes

 

No

No

No

 

No

 

No

Distributed Hydrogen

Yes

 

No

Yes

No

 

No

 

No

Reversible for Storage

No

 

No

Yes

No

 

No

 

No

 

Competition

Our SureSource power plants compete in the marketplace for stationary distributed generation. In addition to different types of stationary fuel cells, some other technologies that compete in this marketplace include micro-turbines and reciprocating gas engines.

Several companies in the U.S. are engaged in fuel cell development, although we are the only domestic company engaged in manufacturing and deployment of stationary carbonate fuel cells.Carbonate Fuel Cells. Other emerging fuel cell technologies (and the companies developing them) include small or portable PEM fuel cells (Ballard Power Systems, Plug Power, and increasing activity by numerous automotive companies including Toyota, Hyundai, Honda and GM), stationary phosphoric acid fuel cells (Doosan), stationary solid oxide fuel cells (Bloom Energy), and small residential solid oxide fuel cells (Ceres Power Holdings and Ceramic Fuel Cells Ltd.).  Each of these competitors with stationary fuel cell applications has the potential to capture market share in our target markets.

Other than fuel cell developers, we may compete with companies such as Caterpillar, Cummins, Wartsilla,Wartsila, MTU Friedrichshafen GmbH (MTU), and Detroit Diesel, which manufacture more mature combustion-based distributed power


generation equipment, including various engines and turbines, and have well-establishedestablished manufacturing and distribution operations along with product operating and cost features. Competition on larger MW projects may also come from gas turbine companies like General Electric, Caterpillar Solar Turbines and Kawasaki.

We also compete against the electric grid, which is readily available to prospective customers.  The electric grid is supplied by traditional centralized power plants, including coal, gas and nuclear, with transmission lines used to transport the electricity to the point of use.


Our stationary fuel cell power plants also compete against large scale solar and wind technologies, although we can complement the unreliable intermittent nature of solar and wind intermittency with the continuous, reliable power output of the fuel cells.  Solar and wind require specific geographies and weather profiles, and require transmission for utility-scale applications, as well asan energy storage solution to provide continuous power output, and a significant amount of land compared to our fuel cell power plants, making it difficult to site MW-classmegawatt-class solar and wind projects in urban areas, unlike our solutions.

We believe that only carbonate Solar and wind applications are typically favored in markets which have a preference for zero-carbon resources. While fuel cells are suitable foremit negligible amounts of NOx, SOx and particulates, fuel cells do emit a small amount of carbon dioxide. The carbon dioxide emissions of a fuel cell are only a fraction of the carbon capture applications, sodioxide emissions of traditional combustion generators. We are working to educate policy makers in our fuel celltarget markets of the clean profile of our technology and the benefits of baseload power to complement zero carbon capture solution does not compete against fuel cells from manufacturers utilizing other fuel cell technologies.intermittent resources.

Our distributed hydrogen solution competes against traditional centralized hydrogen generation as well as electrolyzers used for distributed applications.  Hydrogen is typically generated at a central location in large quantities by combustion-based steam reforming and then distributed to end users by diesel truck.  Besides utilizing tri-generation SureSource plants for distributed hydrogen, electrolyzers can be used that are in essence, reverse fuel cells.  Electrolyzers take electricity and convert it to hydrogen.  The hydrogen can be used as it is generated, compressed and stored, or injected into the natural gas pipeline. Companies using fuel cell-based electrolyzer technology for transportation applications include NEL and Hydrogenics Corporation.

Hydrogen is an energy carrier and energy storage utilizing hydrogen is a growing market opportunity that we are pursuing with our SOFC/SOEC technology.  Companies using PEM-based fuel cell electrolyzer technology for storage include Hydrogenics Corporation and ITM Power PLC.

 

Regulatory and Legislative SupportEnvironment

Distributed generation addresses certain power generation issues that central generation does not and legal, government and regulatory policy can impact deployment of distributed generation. The policies that affect our products are not always the same as those imposed on our competitors, and while some policies can make our products less competitive, others may provide an advantage. Certain utility policies may also pose barriers to our installation or interconnection with the utility grid, such as backup, standby or departing load charges that make installation of our products not economically attractive for our customers. Regulatory and legislative support encompasses policy, incentive programs, and defined sustainability initiatives such as Renewable Portfolio Standards (“RPS”).

Various states and municipalities in the U.S. have adopted programs for which our products qualify, including programs supporting self-generation, clean air power generation, combined heat and power applications, carbon reduction, grid resiliency / micro-gridsmicrogrids and utility ownership of fuel cell projects.

The majority of states in the U.S. have enacted legislation adopting Clean Energy Standards (“CES”) or RPS mechanisms. Under these standards, regulated utilities and other load serving entities are required to procure a specified percentage of their total electricity sales to end-user customers from eligible resources. CES and RPS legislation and implementing regulations vary significantly from state to state, particularly with respect to the percentage of renewable energy required to achieve the state’s mandate, the definition of eligible clean and renewable energy resources, and the extent to which renewable energy credits (certificates representing the generation of renewable energy) qualify for CES or RPS compliance. Fuel cells using biogasBiogas qualify as renewable power generation technology in all of the CES and RPS states in the U.S., and tensome states (Connecticut, Delaware, Indiana, New York, Ohio, Oklahoma, Pennsylvania, New Hampshire, West Virginia and Maine) and Puerto Rico specify that fuel cells operating on natural gas are also eligible for these initiatives in recognition of the high efficiency and low pollutants of fuel cells.  Massachusetts has also promulgated regulations that will qualify certain fuel cells under its Alternative Portfolio Standard.Other states are moving away from generation utilizing fossil fuels in favor of zero carbon resources.

 

In February 2018, the U.S. Congress reinstated the 30% Investment Tax Credit (“ITC”) for fuel cells and also extended and significantly expanded the existing Carbon Oxide Sequestration Credit. The ITC phases down to 26% in 2020 and


22% by 2022 and is set to expire in 2023. The reinstatement of the ITC for fuel cells provided equal access to tax incentives for U.S. fuel cell manufacturers when compared with other clean energy solutions. We believe that the reinstatement of the ITC will help to facilitate market expansion and product deployment by enhancing our competitiveness on projects and encouraging project financing.

Internationally, South Korea has an RPS to promote clean energy, reduce carbon emissions, and develop local manufacturing of clean energy generation products to accelerate economic growth. The RPS is designed to increase new and renewable power generation to 10% of total power generation by 2024 from 2% when the RPS began in 2012.  Eighteen of the largest power generators are obligated to achieve the RPS requirements in their generation or purchase offsetting renewable energy certificates.  Financial penalties are levied by the government for non-compliance.  European governments are supportive of hydrogen-based generation and efficient CHP applications, and some European governments such as Germany, the UK and the Netherlands, provide incentives in the form of tax incentives, grants and waivers of regulatory fees for such installations.


Government Regulation

Our Company and its products are subject to various federal, provincial, state and local laws and regulations relating to, among other things, land use, safe working conditions, handling and disposal of hazardous and potentially hazardous substances and emissions of pollutants into the atmosphere. Negligible emissions of SOx and NOx from our power plants are substantially lower than conventional combustion-based generating stations, and are far below existing and proposed regulatory limits. The primary emissions from our power plants, assuming no cogeneration application, are humid flue gas that is discharged at temperatures of 700-800° F, water that is discharged at temperatures of 10-20° F above ambient air temperatures, and CO2 in per kW hour amounts that are much less than conventional fossil fuel central generation power plants due to the high efficiency of fuel cells. The discharge of water from our power plants requires permits that depend on whether the water is to be discharged into a storm drain or into the local wastewater system.

We are also subject to federal, state, provincial and/or local regulation with respect to, among other things, emissions and siting. In addition, utility companies and several states in the U.S. have created and adopted, or are in the process of creating and adopting, interconnection regulations covering both technical and financial requirements for interconnection of fuel cell power plants to utility grids. Our power plants are designed to meet all applicable laws, regulations and industry standards for use in international markets in which we operate.  Our SureSource solutions are CARB 2007 certified, and our SureSource 1500 and SureSource 3000, when operating on biogas, isBiogas, are certified for the CARB 2013 biogas standards.standard.

We are committed to providing a safe and healthy environment for our employees, and we are dedicated to seeing that safety and health hazards are adequately addressed through appropriate work practices, training and procedures.  All of our employees must observe the proper safety rules and environmental practices in work situations, consistent with our work practices, training and procedures, and consistent with all applicable health, safety and environmental laws and regulations.

Proprietary Rights and Licensed Technology

Our intellectual property consists of patents, trade secrets and institutional knowledge and know how that we believe is a competitive advantage and represents a significant barrier to entry for potential competitors.  Our Company was founded in 1969 as an applied research company and began focusing on carbonate fuel cellsCarbonate Fuel Cells in the 1980s, with our first fully commercializedfully-commercialized SureSource power plant sold in 2003. Over this time, we have gained extensive experience in designing, manufacturing, operating and maintaining fuel cell power plants.  This experience cannot be easily or quickly replicated and, combined with our trade secrets, proprietary processes and patents, safeguards our intellectual property rights.

As of October 31, 2018,2019, our Company, excluding its subsidiaries, had 9395 patents in the U.S. and 137153 patents in other jurisdictions covering our fuel cell technology (in certain cases covering the same technology in multiple jurisdictions), with patents directed to various aspects of our SureSource technology, SOFC technology, PEM fuel cell technology, and applications thereof. As of October 31, 2018,2019, we also had 5462 patent applications pending in the U.S. and 125112 pending in other jurisdictions.  Our U.S. patents will expire between 20192020 and 2036,2037, and the current average remaining life of our U.S. patents is approximately 9.08.4 years.

Our subsidiary, Versa Power Systems, Ltd., as of October 31, 2018,2019, had 3633 U.S. patents and 7696 international patents covering the SOFC technology (in certain cases covering the same technology in multiple jurisdictions), with an average remaining U.S. patent life of approximately 6.35.5 years.  As of October 31, 2018,2019, Versa Power Systems, Ltd. also had three1 pending U.S. patent applicationsapplication and 1411 patent applications pending in other jurisdictions.  In addition, as of


October 31, 2018,2019, our subsidiary, FuelCell Energy Solutions, GmbH, had license rights to two2 U.S. patents and seven 7patents outside the U.S. for carbonate fuel cell technology licensed from Fraunhofer IKTS.

No

Five patents expired in 2018 that would have any material impact on our current or anticipated operations.  Three patents are expiring in 2019, but none of these expirations, areindividually or in the aggregate, is expected to have any material impact on our current or anticipated operations.  As has historically been the case, we are continually innovating and have a significant number of invention disclosures that we are reviewing that may result in additional patent applications.


Certain of our U.S. patents are the result of government-funded research and development programs, including our DOE programs. U.S. patents we own that resulted from government-funded research are subject to the government potentially exercising “march-in” rights. We believe that the likelihood of the U.S. government exercising these rights is remote and would only occur if we ceased our commercialization efforts and there was a compelling national need to use the patents.

Significant Customers and Information about Geographic Areas

We contract with a concentrated number of customers for the sale of our products and for research and development contracts.development. For the years ended October 31, 2019, 2018 2017 and 2016,2017, our top customers, EMRE, Dominion Bridgeport Fuel Cell, LLC, Connecticut Power and Light, the DOE, Pfizer Inc., POSCO Energy, Hanyang Industrial Development Co., Ltd, Clearway Energy (formerly NRG Yield, Inc.), and AEP Onsite Partners, LLC, the U.S. Department of Energy, ExxonMobil, POSCO Energy, Dominion Bridgeport Fuel Cell, LLC and Avangrid Holdings accounted for an aggregate of 84%80%, 78%86% and 75%79%, respectively, of our total annual consolidated revenue. Revenue percentage by major customer for the last three fiscal years is as follows:

 

 

 

Years Ended October 31,

 

 

 

2018

 

 

2017

 

 

2016

 

Hanyang Industrial Development Co. Ltd

 

 

35

%

 

 

40

%

 

 

%

Clearway Energy (formerly NRG Yield, Inc.)

 

 

15

%

 

 

 

 

 

 

AEP Onsite Partners, LLC

 

 

10

%

 

 

 

 

 

 

U.S. Department of Energy

 

 

8

%

 

 

9

%

 

 

8

%

ExxonMobil

 

 

6

%

 

 

9

%

 

 

3

%

POSCO Energy

 

 

5

%

 

 

6

%

 

 

48

%

Dominion Bridgeport Fuel Cell, LLC

 

 

3

%

 

 

11

%

 

 

6

%

Avangrid Holdings (through its various subsidiaries)

 

 

2

%

 

 

3

%

 

 

10

%

Total

 

 

84

%

 

 

78

%

 

 

75

%

 

 

Years Ended October 31,

 

 

 

2019

 

 

2018

 

 

2017

 

ExxonMobil Research and Engineering Company (EMRE)

 

 

40

%

 

 

6

%

 

 

9

%

Dominion Bridgeport Fuel Cell, LLC (a)

 

 

13

%

 

 

3

%

 

 

11

%

Connecticut Light and Power (a)

 

 

11

%

 

 

%

 

 

%

U.S. Department of Energy (DOE)

 

 

6

%

 

 

8

%

 

 

9

%

Pfizer, Inc.

 

 

6

%

 

 

4

%

 

 

4

%

POSCO Energy

 

 

3

%

 

 

5

%

 

 

6

%

Clearway Energy (formerly NRG Yield, Inc.)

 

 

1

%

 

 

15

%

 

 

%

Hanyang Industrial Development Co., Ltd.

 

 

%

 

 

35

%

 

 

40

%

AEP Onsite Partners, LLC

 

 

%

 

 

10

%

 

 

%

Total

 

 

80

%

 

 

86

%

 

 

79

%

(a)

Dominion Bridgeport Fuel Cell, LLC was acquired by the Company on May 9, 2019.  As a result of this acquisition, revenue is now (subsequent to the acquisition) recognized under the related PPA for electricity sales to Connecticut Light and Power.    

 

See Item 7 – “Management's Discussion and Analysis of Financial Condition and Results of Operations” and Item 8 – “Consolidated Financial Statements and Supplementary Data” for further information regarding our revenue and revenue recognition policies.

We have marketing and manufacturing operations both within and outside the United States. We source raw materials and BOP components from a diverse global supply chain.  In 2018,2019, the foreign country with the greatest concentration risk was South Korea, accounting for 41%4% of our consolidated net sales.  The Company is entitled to receive royalties from POSCO Energy on the sale of power plants and module replacements related to service of fuel cell power plants in Asia.Asia, and the Company received approximately $0.4 million in such royalties during the fiscal year ended October 31, 2019 as part of a net settlement of the arbitration brought by POSCO Energy.  As part of our strategic plan, we are in the process of diversifying our sales mix from both a customer specific and geographic perspective. See Item 1A: Risk Factors - “We are substantially dependent on a concentrated number of customers and the loss of any one of these customers could adversely affect our business, financial condition and results of operations,” “We depend on strategic relationships with third parties, and the terms and enforceability of many of these relationships are not certain,” and “Recent developmentsThe situation with POSCO Energy mayhas limited and continues to limit our efforts to access the South Korean and Asian markets and could expose us to costs of arbitration or litigation proceedings.”


The international nature of our operations subjects us to a number of risks, including fluctuations in exchange rates, adverse changes in foreign laws or regulatory requirements and tariffs, taxes, and other trade restrictions. See Item 1A: Risk Factors – “We are subject to risks inherent in international operations.” See also Note 1516. “Segment Information,” to the consolidated financial statements in Part II, Item 8, “Consolidated Financial Statements and Supplementary Data” of this Annual Report on Form 10-K for information about our net sales by geographic region for the years ended October 31, 2019, 2018, 2017, and 2016.2017. See also Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” for other information about our operations and activities in various geographic regions.


SustainabilitySustainability

FuelCell Energy’s ultra-clean, efficient and reliable fuel cell power plants help our customers achieve their sustainability goals. These highly efficient and environmentally friendly products support the “Triple Bottom Line” concept of sustainability, consisting of environmental, social and economic considerations. In October 2018, we were certified ISO 14001:2015 compliant, having demonstrated the establishment of and adherence to an environmental management system standard.  FuelCell Energy is the only fuel cell manufacturer to have received this certification.

Product efficiency

The electrical efficiency of our carbonate fuel cell solutions ranges from approximately 47% to 60% depending on the configuration.  When configured for CHP, our system efficiencies can potentially reach up to 90%, depending on the application. This compares favorably to the average efficiency of the U.S. electrical grid of about 40%.  Our solutions deliver this high electrical efficiency where the power is used, avoiding transmission.  Transmission line losses average about 5% for the U.S. grid, which represents inefficiency and is a hidden cost to ratepayers.  In a combined heat and power configuration, total thermal efficiency of our fuel cell solutions can potentially be up to 90% depending on the application.

Energy management

We utilize our fuel cells to provide a portion of the electricity used at our corporate headquarters and at our North American manufacturing facility.

Other examples of energy management include routing excess heat from production processes throughout the manufacturing facility to reduce both heating costs and associated emissions, utilizing the power produced by fuel cells undergoing R&D at our facilities for a portion of the power needs of the facilities, and installation of high efficiency lighting at our North American manufacturing facility and corporate headquarters.

We have expanded our manufacturing facility in Torrington and consolidated other locations, reducing transportation emissions and transportation costs, incorporating energy efficient building standards and reducing leasing costs.  We are relocating fuel cell module conditioning to Torrington from our Danbury facility, which will further reduce transportation emissions and costs. We recognize that there is more to be done and we are utilizing cross-functional teams to identify and evaluate additional areas for improvement.

Product end-of-life management

We continue to incorporate sustainability best practices into our corporate culture, andas well as into the design, manufacture, installation and servicing of our fuel cell power plants.  For example, atwhen our plants reach the end-of-lifeend of our power plants,their useful lives, we can refurbish and re-use certain parts of the power plant and we are able tothen recycle most of what we cannot re-use.  Some of the parts in the fuel cell module can be re-furbished, such as end plates, while the individual fuel cell components are sent to a smelter for recycling. The BOP has an operating life of twenty to twenty-five20-to-25 years, at which time metals such as steel and copper are reclaimed for scrap value.  By weight, approximately 93% of the entire power plant is eithercan be re-used or recycled.recycled at the end of its useful life.

Our manufacturing process has a very low carbon footprint, utilizing an assembly oriented production strategy.  While we continue to enhance and adopt sustainable business practices, we recognize this is an ongoing effort with more to be accomplished, such as further reducing the direct and indirect aspects of our carbon footprint.

Workforce Health & Safety

We work to continually improve what we feel is a robust safety program.  This is demonstrated by an improving safety trend over each of the past 5 years.  We have never had a workplace fatality at any of our facilities or power plant installations.


Sustainability also incorporates social risks and human rights, and we will not knowingly support or do business with suppliers that treat workers improperly or unlawfully, including, without limitation, those that engage in child labor, human trafficking, slavery or other unlawful or morally reprehensible employment practices.  We are continuing to implement comprehensive monitoring of our global supply chain to eliminate social risks and ensure respect for human rights. We contractually ensure that all qualified domestic suppliers in our supply chain comply with the Fair Labor Standards Act of 1938, as amended.  


Materials sourcing

Materials sourcing

Assuring the absence of conflict minerals in our power plants is a continuing initiative.  Our fuel cells, including the fuel cell components and completed fuel cell module, do not utilize any 3TG minerals (i.e., tin, tungsten, tantalum and gold) that are classified as conflict minerals.  We do utilize componentry in the BOP such as computer circuit boards that utilize trace amounts of 3TG minerals. For perspective, total shipments in fiscal year 20172018 weighed approximately 3.02.8 million pounds, of which 2.58.0 pounds, or 0.000084%0.000291%, represented 3TG minerals, so the presence of these minerals is minimal.  Our conflict mineral disclosure filed with the Securities and Exchange Commission (“SEC”) on Form SD contains specific information on the actions we are taking to avoid the use of conflict minerals.

Associates

As of October 31, 2018,2019, we had 489301 full-time associates, of whom 210119 were located at the Torrington manufacturing plant, 242145 were located at the Danbury, Connecticut facility or other field offices within the U.S., and 37 were located abroad.  We did not have any part-time associates. None of our U.S. associates are represented by a labor union or covered by a collective bargaining agreement.  We believe our relations with our associates are good.

Available Information

Our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K, and all amendments to those reports are made available free of charge through the Investor Relations section of the Company’s website (http://www.fuelcellenergy.com) as soon as practicable after such material is electronically filed with, or furnished to, the SEC. Material contained on our website is not incorporated by reference in this report. Our executive offices are located at 3 Great Pasture Road, Danbury, CT 06810. The public may also read and copy any materials that we file with the SEC at the SEC’s Public Reference Room at 100 F Street, NE, Washington, D.C. 20549. The public may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website that contains reports and other information regarding issuers that file electronically with the SEC located at http://www.sec.gov.


Information about our Executive Officers of the Registrant

 

NAME

 

AGE

 

PRINCIPAL OCCUPATION

Arthur A. BottoneJason B. Few

President, Chief Executive Officer and Chief ExecutiveCommercial Officer

 

58

53

 

Mr. Bottone joined FuelCell Energy in February 2010 as Senior Vice President and Chief Commercial Officer andFew was promoted toappointed President and Chief Executive Officer in February 2011.August 2019 and Chief Commercial Officer in September 2019 and has served as a director since 2018. Mr. Bottone's focus is to accelerate and diversify global revenue growth to achieve profitability by capitalizing on heightened global demand for clean and renewable energy.  Mr. Bottone has broad experience inFew chairs the power generation field, including traditional central generation and alternative energy.Executive Committee of the Board of Directors (the “Board”). Prior to joining FuelCell Energy, Mr. Bottone spent 25 years at Ingersoll Rand, a diversified global industrial company, includingFew served as President of Sustayn Analytics LLC, a cloud-based software waste and recycling optimization company, since 2018, and as the Founder and Senior Managing Partner of BJF Partners LLC, a privately held strategic consulting firm, since 2016. Mr. Few has over 30 years of experience increasing enterprise value for Global Fortune 500 and privately-held technology, telecommunications, technology and energy firms. He has overseen transformational opportunities across the technology and industrial energy sectors, in roles including Founder and Senior Managing Partner of BJF Partners, LLC; President and Chief Executive Officer of Continuum Energy, Systems business.an energy products and services company, from 2013-2016; various roles including Executive Vice President and Chief Customer Officer of NRG Energy, Inc., an integrated energy company, from 2011 to 2012; and from 2008 to 2009, Vice President, Smart Energy and from 2009 to 2012, President of Reliant Energy, a retail electricity provider. Mr. Bottone's qualifications include extensive global business development, technology commercialization, power generation project developmentFew also has served as well as acquisition and integration experience.a Senior Advisor to Verve Industrial Protection, an industrial cybersecurity software company, since 2016.

Mr. BottoneFew was elected to the board of Marathon Oil (NYSE: MRO) effective April 1, 2019, and is a member of Marathon Oil’s Audit and Finance and Corporate Governance and Nominating Committees.

Mr. Few received an undergraduate degreehis Bachelor’s Degree in Mechanical EngineeringComputer Systems in Business from Georgia InstituteOhio University, and a MBA from Northwestern University’s J.L. Kellogg Graduate School of Technology in 1983, and received a Certificate of Professional Development from The Wharton School, University of Pennsylvania in 2004.Management.

 

 

 

 

 

Michael S. Bishop

SeniorExecutive Vice President, Chief Financial Officer and Treasurer

 

50

51

 

Mr. Bishop was appointed SeniorExecutive Vice President in June 2019 and has served as the Company’s Chief Financial Officer and Treasurer insince June 2011.  Mr. Bishop previously served as Senior Vice President of the Company from June 2011 to June 2019. He has more than 20 years of experience in financial operations and management with public high growth technology companies with a focus on capital raising, project finance, debt/treasury management, investor relations, strategic planning, internal controls, and organizational development. Since joining the Company in 2003, Mr. Bishop has held a succession of financial leadership roles, including Assistant Controller, Corporate Controller and Vice President and Controller. Prior to joining FuelCell Energy,the Company, Mr. Bishop held finance and accounting positions at TranSwitch Corporation, Cyberian Outpost, Inc. and United Technologies, Inc. He is a certified public accountant and began his professional career at McGladrey and Pullen, LLP.LLP (now RSM US LLP). Mr. Bishop also served four years in the United States Marine Corps.

Mr. Bishop received a Bachelor of Science in Accounting from Boston University in 1993 and a MBA from the University of Connecticut in 1999.Connecticut.

 

 

 

 

 


NAME

 

AGE

 

PRINCIPAL OCCUPATION

Anthony F. Rauseo

Senior Vice President, Chief Operating Officer

59

Mr. Rauseo was appointed Chief Operating Officer in July 2010. In this position, Mr. Rauseo has responsibility for closely integrating the manufacturing operations with the supply chain, product development and quality initiatives. Mr. Rauseo is an organizational leader with a strong record of achievement in product development, business development, manufacturing, operations, and customer support. Mr. Rauseo joined the Company in 2005 as Vice President of Engineering and Chief Engineer. Prior to joining Fuel Cell Energy, Mr. Rauseo held a variety of key management positions in manufacturing, quality and engineering, including five years with CiDRA Corporation. Prior to joining CiDRA, Mr. Rauseo was with Pratt and Whitney for 17 years where he held various leadership positions in product development, production and customer support of aircraft turbines.

Mr. Rauseo received a Bachelor of Science in Mechanical Engineering from Rutgers University in 1983 and received a Masters of Science in Mechanical Engineering from Rensselaer Polytechnic Institute in 1987.

Jennifer D. Arasimowicz, Esq.

SeniorExecutive Vice President, General Counsel, Chief Administrative Officer and Corporate Secretary

 

46

47

 

Ms. Arasimowicz was appointed SeniorChief Administrative Officer in September 2019 and has served as Executive Vice President since June 2019, General Counsel since April 2017 and Corporate Secretary insince April 2017. In thisher current position (and in her prior positions), Ms. Arasimowicz, a licensed attorney in Connecticut, New York and Massachusetts, is (and was) the chief legal, officercompliance and chief complianceadministrative officer of the Company, having responsibility for oversight of all of the Company’s legal and government affairs, and providing leadership in all aspects of the Company’s business, including compliance, corporate governance and board activities.  Ms. Arasimowicz joined the Company in 2012 as Associate Counsel and was promoted to Vice President in 2014.2014, to General Counsel and Corporate Secretary in 2017 and to Senior Vice President also in 2017. Ms. Arasimowicz also previously served as Interim President from June 2019 to August 2019 and as Chief Commercial Officer from June 2019 to September 2019. Prior to joining the Company, Ms. Arasimowicz served as General Counsel of Total Energy Corporation, a New York based diversified energy products and service company providing a broad range of specialized services to utilities and industrial companies.  Previously, Ms. Arasimowicz was a partner at Shipman & Goodwin in Hartford, Connecticut, chairing the Utility Law Practice Group and began her legal career as an associate at Murtha Cullina.Cullina, LLP.  

 

Ms. Arasimowicz earned her Juris Doctor at Boston University School of Law and holds a bachelor’sBachelor’s degree in English from Boston University.

 

Michael Lisowski

Executive Vice President, Chief Operating Officer

49

Mr. Lisowski was appointed Executive Vice President and Chief Operating Officer in June 2019.  Mr. Lisowski has served as the Company’s Vice President of Global Operations since 2018, and, from 2001 to 2018, held various other positions within the Company, including Vice President of Supply Chain from 2010 to 2018. Mr. Lisowski is a senior global operations leader with 26 years of progressive operations experience in technology-driven businesses. In his position as the Company’s Chief Operating Officer (and in his prior position as the Company’s Vice President of Global Operations), Mr. Lisowski is (and was) responsible for the Supply Chain, Manufacturing, Quality, Project Management, Environmental Health and Safety, and Plant Engineering functions of the Company. Additionally, Mr. Lisowski and his team are responsible for the development and qualification of strategic suppliers for critical direct materials, as well as procurement of capital equipment in support of operations.

Mr. Lisowski earned his Bachelor’s Degree in Communications and Business Administration at Western New England University and a Master’s Degree in Management, Global Supply Chain Integrations from Rensselaer Polytechnic Institute.


ItemNAME

AGE

PRINCIPAL OCCUPATION

Anthony Leo

Executive Vice President, Chief Technology Officer

62

Mr. Leo was appointed Executive Vice President and Chief Technology Officer in June 2019 and, prior to that, served as Vice President of Applications and Advanced Technologies since 2014.  From 1978 to 2014, Mr. Leo has held various other positions with the Company, including Vice President of Application Engineering and Advanced Technology Development, Vice President of Applications and OEM Engineering, and Vice President of Product Engineering. Mr. Leo has held key leadership roles in the Company’s research, development, and commercialization of stationary fuel cell power plants for more than 30 years. In his current position and in his position as the Company’s Vice President of Applications and Advanced Technologies, Mr. Leo is and has been responsible for Applications and Advanced Technology Development. In Mr. Leo’s other positions with the Company, he has been responsible for managing advanced research and development of rechargeable batteries and fuel cells, managing the first large-scale demonstration stationary fuel cell project, and establishing the Product Engineering Group.

Mr. Leo earned his Bachelor of Science Degree in Chemical Engineering from Rensselaer Polytechnic Institute and is currently serving on the U.S. Department of Energy Hydrogen and Fuel Cell Technical Advisory Committee.

ITEM 1A.

RISK FACTORS

You should carefully consider the following risk factors before making an investment decision.  If any of the following risks actually occur, our business, financial condition, or results of operations could be materially and adversely affected.  In such cases, the trading price of our common stock could decline, and you may lose all or part of your investment.

If we do not meet the continued listing standards of The Nasdaq Global Market, our common stock could be delisted from trading, which could limit investors’ ability to make transactions in our common stock, subject us to additional trading restrictions, and trigger repurchase rights under the Amended Certificate of Designation for our 5% Series B Cumulative Convertible Perpetual Preferred Stock.

Our common stock is listed on The Nasdaq Global Market (FCEL), which imposes continued listing requirements with respect to listed securities. The Company has previously received notices from The Nasdaq Stock Market (“Nasdaq”), most recently on July 18, 2019, stating that we were not in compliance with Nasdaq Listing Rule 5450(a)(1) because the closing bid price of our common stock was below the required minimum of $1.00 per share for the previous 30 consecutive business days. In accordance with Nasdaq Listing Rules, we had a period of 180 calendar days, or until January 14, 2020, to regain compliance with the minimum bid price requirement. On January 13, 2020, we received a notice from Nasdaq confirming that we had regained compliance with the minimum bid price requirement as the closing bid price of our common stock was above the required minimum of $1.00 per share for at least ten consecutive business days from December 26, 2019 to January 10, 2020. However, if we are not able to demonstrate compliance with the minimum bid price requirement in the future, if we fail to meet other continued listing requirements, or if we are otherwise not eligible for continued listing on Nasdaq, we may receive additional notices, and, if we are unable to regain compliance within the prescribed timeframe, our common stock will be subject to delisting. Such delisting could adversely affect the market price and liquidity of our common stock and reduce our ability to raise additional capital.

Additionally, if the Company’s common stock is delisted from trading on Nasdaq and is not approved for trading or quoted on any other U.S. securities exchange or other established over-the-counter trading market in the United States (a “Fundamental Change”), then, pursuant to the Amended Certificate of Designation for the 5% Series B Cumulative Convertible Perpetual Preferred Stock (“Series B Preferred Stock”) dated March 14, 2005, each holder of the Series B Preferred Stock has the right, at its option, to require us to purchase all or a portion of such holder’s shares of Series B Preferred Stock on the date that is 45 days after the date of the Company’s notice of such Fundamental Change for


an amount equal to the sum of 100% of the liquidation preference (which is $1,000 per share) of the shares of Series B Preferred Stock to be repurchased, plus any accrued and unpaid dividends to, but excluding the Fundamental Change purchase date. Under Delaware law, we may repurchase shares of the Series B Preferred Stock only if our total assets would be greater than the sum of our total liabilities plus, unless our Certificate of Incorporation, as amended, permits otherwise, the amount needed, if we were to be dissolved at the time of the repurchase, to satisfy the preferential rights, upon dissolution, of stockholders whose preferential rights on dissolution are superior to the holders of shares of the Series B Preferred Stock.

We have a limited number of shares of common stock available for issuance, which limits our ability to raise capital.

We have historically relied on the equity markets to raise capital to fund our business and operations. As of October 31, 2019, we had only 31,391,316 shares of common stock available for issuance, of which 30,274,072 shares were reserved for issuance under various convertible securities, options, and warrants, under our stock purchase and incentive plans, and under our at-the-market sales plan.  As of January 14, 2020, we had 14,034,001 shares of common stock available for issuance, of which 10,290,934 shares were reserved for issuance under various convertible securities, options, and warrants, under our stock purchase and incentive plans, and under our at-the-market sales plan.  At the April 4, 2019 annual meeting of stockholders, our stockholders did not approve our request to increase the number of shares of common stock that we are authorized to issue from 225,000,000 shares to 335,000,000 shares. The limited number of shares available for issuance limits our ability to raise capital in the equity markets and satisfy obligations with shares instead of cash, which could adversely impact our ability to fund our business and operations.

We have incurred losses and anticipate continued losses and negative cash flow.

We have transitioned from a research and development company to a commercial products manufacturer, services provider and developer. We have not been profitable since our year ended October 31, 1997. We expect to continue to incur net losses and generate negative cash flows until we can produce sufficient revenues and margins to cover our costs. We may never become profitable. Even if we do achieve profitability, we may be unable to sustain or increase our profitability in the future. For the reasons discussed in more detail below, there are uncertainties associated with our achieving and sustaining profitability. We have, from time to time, sought financing in the public markets in order to fund operations and will continue to do so. Our future ability to obtain such financing could be impaired by a variety of factors, including, but not limited to, the price of our common stock, our lack of authorized, unreserved and unissued shares, and general market conditions.

Our cost reduction strategy may not succeed or may be significantly delayed, which may result in our inability to deliver improved margins.

Our cost reduction strategy is based on the assumption that increases in production will result in economies of scale. In addition, our cost reduction strategy relies on advancements in our manufacturing process, global competitive sourcing, engineering design, reducing the cost of capital and technology improvements (including stack life and projected power output). Failure to achieve our cost reduction targets could have a material adverse effect on our results of operations and financial condition.

Our workforce reduction may cause undesirable consequences and our results of operations may be harmed.

On April 12, 2019, we undertook a reorganization, which included a workforce reduction of 30%, or 135 employees. This workforce reduction may yield unintended consequences, such as attrition beyond our intended reduction in workforce and reduced employee morale, which may cause our employees who were not affected by the reduction in workforce to seek alternate employment. Additional attrition could impede our ability to meet our operational goals, which could have a material adverse effect on our financial performance. In addition, as a result of the reductions in our workforce, we may face an increased risk of employment litigation. Furthermore, employees whose positions were eliminated or those who determine to seek alternate employment may seek employment with our competitors. Although all our employees are required to sign a confidentiality agreement with us at the time of hire, we cannot assure you that the confidential nature of our proprietary information will be maintained in the course of such future employment. We cannot assure you that we will not undertake additional workforce reduction activities, that any of our efforts will be successful, or that we will be able to realize the cost savings and other anticipated benefits from our previous or any future workforce reduction plans. In addition, if we continue to reduce our workforce, it may adversely impact our ability to respond rapidly to any new product, growth or revenue opportunities and to execute on our backlog and business plans. Additionally, our recent reduction in workforce may make it more difficult to recruit and retain new hires as our business grows.


We have debt outstanding and may incur additional debt in the future, which may adversely affect our financial condition and future financial results.

Our total consolidated indebtedness was $87.9$106.3 million as of October 31, 2018.2019. This includes approximately $46.1$81.2 million of debt at our project finance subsidiaries and $41.8$25.1 million of debt at the corporate level. The majority of our debt is long-term with $17.6$21.9 million due within twelve months as of October 31, 2018. We also had, as of2019.

On October 31, 2018, approximately $402019, we (and certain of our subsidiaries as guarantors) entered into a Credit Agreement (the “Orion Credit Agreement”) with Orion Energy Partners Investment Agent, LLC, as Administrative Agent and Collateral Agent (the “Agent”), and its affiliates, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., and Orion Energy Credit Opportunities Fund II PV, L.P., as lenders, regarding a $200.0 million senior secured credit facility (the “Orion Facility”), structured as a delayed draw term loan, to be provided by the lenders.  In conjunction with the closing of borrowing capacity under a revolving construction and term project financing facility under whichthe Orion Facility, on October 31, 2019, we drew down approximately $5.75$14.5 million (the “Initial Funding”) to fully repay debt outstanding to NRG Energy, Inc. (“NRG”) and Generate Lending, LLC (“Generate”) and to fund dividends paid to the holders of the Company’s 5% Series B Cumulative Convertible Perpetual Preferred Stock (“Series B Preferred Stock”) on or before November 15, 2019.  The balance of the Initial Funding was used primarily to pay third party costs and expenses associated with closing on the Orion Facility.

As provided for in December 2018, which must be repaidthe Orion Credit Agreement, on November 22, 2019, we made a second draw (the “Second Funding”) of $65.5 million funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Co-Invest, L.P. (collectively, the earlier“Orion Lenders”), such that the total fundings under the Orion Facility as of commercial operation of our 2.8November 22, 2019 were equal to $80.0 million.   Proceeds from the Second Funding were used to repay outstanding third party debt with respect to certain Company projects, including the construction loan from Fifth Third Bank on the Groton Project and the loan from Webster Bank on the CCSU Project, as well as to fund remaining going forward construction costs and anticipated capital expenditures relating to certain projects, including the Groton Project, a 7.4 MW project for the CMEEC located on the U.S. Navy submarine base in Groton, Connecticut, the Long Island Power Authority (“LIPA”) Yaphank Solid Waste Management Project (a 7.4 MW project), and the Tulare BioMAT project in California or March 31, 2019. No further draws on this facility are permitted and the facility expires on March 31, 2019. On December 21, 2018, we entered into a $100 million construction loan agreement with Generate Lending, LLC and made an initial draw of $10 million. (a 2.8 MW project). 

Our ability to make scheduled payments of the principal and interest or to refinance our indebtednessand other required repayments depends on our future performance, which is subject to economic, financial, competitive and other factors beyond our control. Our business may not generate cash flow from operations in the future sufficient to service our debt and make necessary capital expenditures.  In addition, the Agent and the lenders under the Orion Credit Agreement have broad approval rights over our ability to draw and allocate funds from the Orion Facility.  If we are unable to generate such cash flow, we may be required to adopt one or more alternatives, such as selling assets, restructuring operations, restructuring debt or obtaining additional equity capital on terms that may be onerous or dilutive.

It is also possible that we may incur additional indebtedness in the future in the ordinary course of business. If new debt is added to current debt levels, the risks described above could intensify.

Our debt agreements contain customary representations and warranties, affirmative and negative covenants, and events of default that entitle the lenders to cause our indebtedness under such debt agreements to become immediately due and payable. In addition, our Loan and Security Agreement with Hercules Capital, Inc., as amended (the “Loan and Security Agreement”), contains a financial covenant whereby we

We are required to maintain an unrestricted cash balanceeffective internal control over financial reporting. Our management previously identified a material weakness in accounts subjectour internal control over financial reporting. If we are unable to an accountremediate the material weakness or other control agreementdeficiencies are identified in favorthe future, we may not be able to report our financial results accurately, prevent fraud or file our periodic reports in a timely manner, which may adversely affect investor confidence in our company and, as a result, the value of Hercules Capital, Inc. of 75%our common stock.

We are required, pursuant to Section 404 of the outstanding loan balance plusSarbanes-Oxley Act, to furnish a report by management on, among other things, the amounteffectiveness of accounts payableour internal control over financial reporting. Complying with Section 404 requires a rigorous compliance program as well as adequate time and resources. We may not paid within 90 daysbe able to complete our internal control evaluation, testing and any required remediation in a timely fashion. Additionally, if we identify one or more material weaknesses in our internal control over financial reporting, we will not be able to assert that our internal controls are effective. A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis. 


We previously disclosed in our Form 10-Qs for the invoice date. In connection withquarters ended April 30, 2019 and July 31, 2019 that we did not have resources to sufficiently address asset impairments on a timely basis or the third amendmentaccounting considerations and disclosures related to our amended credit facilities. As a result, we concluded that there was a material weakness in internal control over financial reporting, as we did not maintain effective controls over the Loanaccounting for and Security Agreementdisclosures in March 2018, we drew a term loan advance of $13.1 million, which resulted in an aggregate amount of outstanding term loan advances of $25.0 millionthe consolidated financial statements related to asset impairments and credit facilities. This control deficiency has not been remediated as of October 31, 2018. As2019 and we further identified that we did not have resources to sufficiently address certain other non-routine transactions and disclosures. This material weakness resulted in material misstatements that were corrected in the consolidated financial statements prior to issuance. 

Subsequent to the evaluation made in connection with filing our Form 10-Q for the quarter ended April 30, 2019, our management, with the oversight of October 31, 2018, the outstanding loan balanceAudit and Finance Committee of our Board of Directors, began the process of remediating the material weakness. Progress to date includes engagement of a third party resource to help evaluate the accounting and disclosure for significant matters each quarter. Management also plans to add additional experienced accounting staff. In addition, under the Loanoversight of the Audit and Security Agreement was $25.3 million, including accretionFinance Committee, management will continue to review and make necessary changes to the overall design of an end-of-term payment.  our internal control environment to improve the overall effectiveness of internal control over financial reporting.


We have made progress in accordance with our remediation plan and our goal is to remediate this material weakness in fiscal year 2020. However, the material weakness will not be considered remediated until the applicable controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively. We are committed to continuing to improve our internal control processes and will continue to review, optimize and enhance our financial reporting controls and procedures, however, there can be no assurance that this will occur within 2020

We cannot be certain that these measures will successfully remediate the material weakness or that other material weaknesses and control deficiencies will not be discovered in the future. If our efforts are not successful or other material weaknesses are identified in the future, or if we are not able to comply with the requirements of Section 404 in a timely manner, our reported financial results could be materially misstated and we could be subject to investigations or sanctions by regulatory authorities, which would require additional financial and management resources, and the value of our common stock could decline. 

To the extent we identify future weaknesses or deficiencies, there could be material misstatements in our consolidated financial statements and we could fail to meet our financial reporting obligations. As a result, our ability to obtain additional financing, or obtain additional financing on favorable terms, could be materially and adversely affected which, in turn, could materially and adversely affect our business, our financial condition and the value of our common stock. If we are unable to assert that our internal control over financial reporting is effective in the future, investor confidence in the accuracy and completeness of our financial reports could be further eroded, which would have a material adverse effect on the price of our common stock.

Our products compete with products using other energy sources, and if the prices of the alternative sources are lower than energy sources used by our products or attributes of other energy sources are favored over our products, sales of our products will be adversely affected.

Our power plants can operate on a variety of fuels including natural gas, renewable biogas,Renewable Biogas, directed biogasBiogas and propane. If these fuels are not readily available or if their prices increase such that electricity produced by our products costs more than electricity provided by other generation sources, our products would be less economically attractive to potential customers. In addition, we have no control over the prices of several types of competitive energy sources such as solar, wind, oil, gas or coal or local utility electricity costs. Significant decreases (or short term increases) in the price of these technologies or fuels or prices for grid delivered prices for electricity could also have a material adverse effect on our business because other generation sources could be more economically attractive to consumers than our products. Additionally, in certain markets, consumers and regulators have expressed a preference for zero-carbon resources over fueled resources. Sales of our products could be adversely affected in these markets.  


Financial markets worldwide have experienced heightened volatility and instability which may have a material adverse impact on theour Company, our customers and our suppliers.

Financial market volatility can affect the debt, equity and project finance markets. This may impact the amount of financing available to all companies, including companies with substantially greater resources, better credit ratings and more successful operating histories than ours. It is impossible to predict future financial market volatility and instability and the impact on theour Company, and it may have a materially adverse effect on us for a number of reasons, such as:

The long term nature of our sales cycle can require long lead times between application design, order booking and product fulfillment. For such sales, we often require substantial cash down payments in advance of delivery. For our generation business, we must invest substantial amounts in application design, manufacture, installation, commissioning and operation, which amounts are returned through energy sales over long periods of time. Our growth strategy assumes that financing will be available for the Companyus to finance working capital or for our customers to provide down payments and to pay for our products. Financial market issues may delay, cancel or restrict the construction budgets and funds available to the Companyus or our customers for the deployment of our products and services.

Projects using our products are, in part, financed by equity investors interested in tax benefits, as well as by the commercial and governmental debt markets. The significant volatility in the U.S. and international stock markets causes significant uncertainty and may result in an increase in the return required by investors in relation to the risk of such projects.

If we, our customers or our suppliers cannot obtain financing under favorable terms, our business may be negatively impacted.

Our contracted projects may not convert to revenue, and our project pipeline may not convert to contracts, which may have a material adverse effect on our revenue and cash flow.

Some of the project awards we receive and orders we accept from customers require certain conditions or contingencies (such as permitting, interconnection or financing) to be satisfied, some of which are outside of our control. The time periods from receipt of an award to execution of a contract, or receipt of a contract to installation may vary widely and are determined by a number of factors, including the terms of the award, the terms of the customer contract and the customer’s site requirements. These same or similar conditions and contingencies may be required by financiers in order to draw on financing to complete a project. If these conditions or contingencies are not satisfied, or changes in laws affecting project awards occur, project awards may not convert to contracts, and installations may be delayed or canceled. This could have an adverse impact on our revenue and cash flow and our ability to complete construction of a project.

We have signed product sales contracts, engineering, procurement and construction contracts (“EPC”)(EPC), power purchase agreements (“PPAs”)(PPAs) and long-term service agreements with customers subject to contractual, technology and operating risks as well as market conditions that may affect our operating results.

We apply the percentagetransfer of completioncontrol over time revenue recognition method under Accounting Standards Codification  Topic 606: Revenue from Contracts with Customer to certain product sales contracts which are subject to estimates. On a quarterly basis, we perform a review process to help ensure that total estimated contract costs include estimates of costs to complete that are based on the most recent available information. The percentageamount of costs incurred on a cumulative to date basis as a function of estimated costs at completion for the customer contracts based on this cost analysis is then applied to the total customer contract valuesconsideration to determine the totalcumulative revenue tothat should be recognized to date.


In certain instances, we have executed PPAs with the end-user of the power or site host of the fuel cell power plant. We may then sell the PPA to a project investor or retain the project and collect revenue from the sale of power over the term of the PPA, recognizing electricity revenue as power is generated and sold.


We have contracted under long-term service agreements with certain customers to provide service on our products over terms up to 20 years. Under the provisions of these contracts, we provide services to maintain, monitor, and repair customer power plants to meet minimum operating levels. Pricing for service contracts is based upon estimates of future costs including future module replacements. While we have conducted tests to determine the overall life of our products, we have not run certain of our products over their projected useful life prior to large-scalelarge scale commercialization. As a result, we cannot be sure that ourthese products will last to their expected useful life, which could result in warranty claims, performance penalties, maintenance and module replacement costs in excess of our estimates and losses on service contracts.

Our ability to proceed with projects under development and complete construction of projects on schedule and within budget may be adversely affected by escalating costs for materials, tariffs, labor and regulatory compliance, inability to obtain necessary permits, interconnections or other approvals on acceptable terms or on schedule and by other factors. If any development project or construction is not completed, is delayed or is subject to cost overruns, we could become obligated to make delay or termination payments or become obligated for other damages under contracts, experience diminished returns or write off all or a portion of our investmentcapitalized costs in the project. Each of these events could have an adverse effect on our business, financial condition, results of operations and prospects.

Our growing generation portfolio of operatingproject assets exposes us to operational risks and commodity market volatility.

We have a growing portfolio of generationproject assets sellingused to generate and sell power under PPAs and utility tariff programs that exposes us to operational risks and uncertainties, including, among other things, lost revenues due to prolonged outages, replacement equipment costs, risks associated with facility start-up operations, failures in the availability or acquisition of fuel, the impact of severe adverse weather conditions, natural disasters, terrorist attacks, risks of property damage or injury from energized equipment, availability of adequate water resources and ability to intake and discharge water, use of new or unproven technology, fuel commodity price risk and fluctuating market prices, and lack of alternative available fuel sources.

We extend product warranties, which could affect our operating results.

We provide for a warranty of our products for a specific period of time against manufacturing or performance defects. We accrue for warranty costs based on historical warranty claim experience,experience; however, actual future warranty expenses may be greater than we have assumed in our estimates. As a result, operating results could be negatively impacted should there be product manufacturing or performance defects in excess of our estimates.

Our products are complex and could contain defects and may not operate at expected performance levels which could impact sales and market adoption of our products or result in claims against us.

We develop complex and evolving products and we continue to advance the capabilities of our fuel cell stacks and are now producing stacks in the United States with a net rated power output of 350 kilowatts and an expected seven yearseven-year life.

We are still gaining field operating experience with respect to our products, and despite experience gained from our growing installed base and testing performed by us, our customers and our suppliers, issues may be found in existing or new products. This could result in a delay in recognition or loss of revenues, loss of market share or failure to achieve broad market acceptance. The occurrence of defects could also cause us to incur significant warranty, support and repair costs, could divert the attention of our engineering personnel from our product development efforts, and could harm our relationships with our customers. The occurrence of these problems could result in the delay or loss of market acceptance of our products and would likely harm our business. Defects or performance problems with our products could result in financial or other damages to our customers. From time to time, we have been involved in disputes regarding product warranty issues. Although we seek to limit our liability, a product liability claim brought against us, even if unsuccessful, would likely be time consuming, could be costly to defend, and may hurt our


reputation in the marketplace. Our customers could also seek and obtain damages from us for their losses. We have accrued liabilities for potential damages related to performance problems,problems; however, actual results may be different than the assumptions used in our accrual calculations.


We currently face and will continue to face significant competition.

We compete on the basis of our products’ reliability, efficiency, environmental considerations and cost. Technological advances in alternative energy products or improvements in the electric grid or other sources of power generation, or other fuel cell technologies may negatively affect the development or sale of some or all of our products or make our products non-competitive or obsolete prior to or after commercialization. Other companies, some of which have substantially greater resources than ours, are currently engaged in the development of products and technologies that are similar to, or may be competitive with, our products and technologies.

Several companies in the U.S. are engaged in fuel cell development, although we are the only domestic company engaged in manufacturing and deployment of stationary carbonate fuel cells. Other emerging fuel cell technologies (and the companies developing them) include small or portable proton-exchange membrane (“PEM”) fuel cells (Ballard Power Systems, Plug Power, and increasing activity by numerous automotive companies including Toyota, Hyundai, Honda and GM), stationary phosphoric acid fuel cells (Doosan), stationary solid oxide fuel cells (Bloom Energy), and small residential solid oxide fuel cells (Ceres Power Holdings and Ceramic Fuel Cells Ltd.). Each of these competitors has the potential to capture market share in our target markets. There are also other potential fuel cell competitors internationally that could capture market share.

Other than fuel cell developers, we must also compete with companies that manufacture more mature combustion-based distributed power equipment, including various engines and turbines, and have well-established manufacturing, distribution, operating and cost features. Electrical efficiency of these products can be competitive with our SureSource power plants in certain applications. Significant competition may also come from gas turbine companies and large scale solar and wind technologies.

We derive significant revenue from contracts awarded through competitive bidding processes involving substantial costs and risks. Due to this competitive pressure, we may be unable to grow revenue and achieve profitability.

We expect a significant portion of the business that we will seek in the foreseeable future will be awarded through competitive bidding against other fuel cell technologies and other forms of power generation. The competitive bidding process involves substantial costs and a number of risks, including the significant cost and managerial time to prepare bids and proposals for contracts that may not be awarded to us and our failure to accurately estimate the resources and costs that will be required to fulfill any contract we win. In addition, following a contract award, we may encounter significant expense, delay or contract modifications as a result of our competitors protesting or challenging contracts awarded to us in competitive bidding. In addition, multi-award contracts require that we make sustained post-award efforts to obtain task orders under the contract. We may not be able to obtain task orders or recognize revenue under these multi-award contracts. Our failure to compete effectively in this procurement environment could adversely affect our revenue and/or profitability.

Unanticipated increases or decreases in business growth may result in adverse financial consequences for us.

If our business grows more quickly than we anticipate, our existing and planned manufacturing facilities may become inadequate and we may need to seek out new or additional space, at considerable cost to us. If our business does not grow as quickly as we expect, our existing and planned manufacturing facilities would, in part, represent excess capacity for which we may not recover the cost. In that circumstance, our revenues may be inadequate to support our committed costs and our planned growth, and our gross margins and business strategy would be adversely affected.


Our plans are dependent on market acceptance of our products.

Our plans are dependent upon market acceptance of, as well as enhancements to, our products. Fuel cell systems represent an emerging market, and we cannot be sure that potential customers will accept fuel cells as a replacement for traditional power sources or non-fuel based power sources. As is typical in a rapidly evolving industry, demand and market acceptance for recently introduced products and services are subject to a high level of uncertainty and risk. Since the distributed generation market is still evolving, it is difficult to predict with certainty the size of the market and its growth rate. The development of a market for our products may be affected by many factors that are out of our control, including:

the cost competitiveness of our fuel cell products including availability and output expectations and total cost of ownership;

the future costs of natural gas and other fuels used by our fuel cell products;

customer reluctance to try a new product;

the market for distributed generation and government policies that affect that market;

local permitting and environmental requirements;

customer preference for non-fuel based technologies; and

the emergence of newer, more competitive technologies and products.

If a sufficient market fails to develop or develops more slowly than we anticipate, we may be unable to recover the losses we will have incurred in the development of our products and may never achieve profitability.

As we continue to expand markets for our products, we intend to continue offering power production guarantees and other terms and conditions relating to our products that will be acceptable to the marketplace, and continue to develop a service organization that will aid in servicing our products and obtain self-regulatory certifications, if available, with respect to our products. Failure to achieve any of these objectives may also slow the development of a sufficient market for our products and, therefore, have a material adverse effect on our results of operations and financial condition.

We are substantially dependent on a concentrated number of customers and the loss of any one of these customers could adversely affect our business, financial condition and results of operations.

We contract with a concentrated number of customers for the sale of products and for research and development contracts. There can be no assurance that we will continue to achieve the current level of sales of our products to our largest customers. Even though our customer base is expected to increase and our revenue streams to diversify, a substantial portion of net revenues could continue to depend on sales to a limited number of customers. Our agreements with these customers may be canceled if we fail to meet certain product specifications or research and development milestones or materially breach the agreements, or if our customers materially breach the agreements, and our customers may seek to renegotiate the terms of current agreements or renewals. The loss of, or a reduction in sales to, one or more of our larger customers could have a material adverse effect on our business, financial condition and results of operations.

Recent developments with POSCO Energy may limit our efforts to access the South Korean and Asian markets and could expose us to costs of arbitration or litigation proceedings.

We have historically relied on POSCO Energy to develop and grow the South Korean and Asian markets for our products and services. We entered into manufacturing and technology transfer agreements with POSCO Energy in 2007, 2009 and 2012, each of which expires on October 31, 2027. The Cell Technology Transfer Agreement (“CTTA”) provides POSCO Energy with the technology rights to manufacture SureSource power plants in South Korea and the right to sell power plants throughout Asia. The CTTA requires POSCO Energy to pay to the Company a 3.0% royalty on POSCO Energy net product sales, as well as a royalty on scheduled fuel cell module replacements under service agreements for modules that were built by POSCO Energy and installed at plants in Asia under the terms of long term service agreements between POSCO Energy and its customers. In March 2017, we entered into a memorandum of understanding (“MOU”) with POSCO Energy to permit us to directly develop the Asian fuel cell business, including the right for us to sell SureSource solutions in South Korea and the broader Asian market. In June 2018, POSCO


Energy advised us in writing that it was terminating the MOU effective July 15, 2018.  Pursuant to the terms of the MOU, notwithstanding its termination, we will continue to execute on sales commitments in Asia secured in writing prior to July 15, 2018. POSCO Energy has ceased communications with us.

On or about November 2, 2018, POSCO Energy served FuelCell Energy with an arbitration demand, initiating a proceeding to resolve various outstanding amounts between the companies. Although the Company has made counterclaims and believes it has valid defenses, we cannot predict the outcome of this or any other proceeding.

In light of recent developments with POSCO Energy, FuelCell Energy is evaluating all of its options with respect to its relationship and agreements with POSCO Energy.  We cannot predict the outcome of any future discussions with POSCO Energy, if they occur, the future status or scope of our relationship with POSCO Energy, whether our relationship with POSCO Energy will continue in the future, or whether we will become involved in additional mediations, arbitrations, litigation or other proceedings with POSCO Energy, what the costs of any such proceedings will be or the effect of such proceedings on the market. Any such proceedings could result in significant expense to us and adversely affect our business and financial condition and reputation in the market, whether or not such proceedings are resolved in our favor. If our relationship with POSCO Energy ends, or continues on terms that are less favorable to us, or remains unresolved, our efforts to access the South Korean and Asian markets, which are complex markets, may not be successful or may be limited, hindered or delayed.

If our goodwill and other intangible assets, long-lived assets, inventory or project assets become impaired, we may be required to record a significant charge to earnings.

We may be required to record a significant charge to operations in our financial statements should we determine that our goodwill, other intangible assets (i.e., in process research and development (“IPR&D”)), other long-lived assets (i.e., property, plant and equipment)equipment and definite-lived intangible assets), inventory, or project assets are impaired. Such a charge might have a significant impact on our reported financial positioncondition and results of operations. We recorded a charge during the year ended October 31, 2019 for a specific construction in process asset related to automation equipment for use in manufacturing with a carrying value of $2.8 million, which was impaired due to uncertainty as to whether the asset will be completed as a result of our liquidity position and continued low level of production rates.


As required by accounting rules, we review our goodwill for impairment at least annually as of July 31 or more frequently if facts and circumstances indicate that it is more likely than not that the fair value of a reporting unit that has goodwill is less than its carrying value. Factors that may be considered a change in circumstances indicating that the carrying value of our goodwill might not be recoverable include a significant decline in projections of future cash flows and lower future growth rates in our industry. We review IPR&D for impairment on an annual basis as of July 31 or more frequently if facts and circumstances indicate the fair value is less than the carrying value. If the technology has been determined to be abandoned or not recoverable, we would be required to impair the asset. We review inventory, long-lived assets and project assets for impairment whenever events or changes in circumstances indicate the carrying amount may not be recoverable. We consider a project commercially viable and recoverable if it is anticipated to be sellable for a profit, or generates positive cash flows, once it is either fully developed or fully constructed. If our projects are not considered commercially viable, we would be required to impair the respective project assets.

We have risks associated with high levels of inventory.

The amount of total inventory as of October 31, 2019 and October 31, 2018 was $56.7 million ($2.2 million of which was classified as long-term inventory) and 2017$54.5 million (none of which was $53.6 million and $74.5 million,classified as long-term inventory), respectively, which includes work in process inventory totaling $29.1$31.2 million and $54.4$29.1 million, respectively. We previously reduced our production rate and have been operating at a lower level for a period of time in order to deploy inventory to new projects and mitigate future increases in inventory. We recently announced that we are beginning to increase our production rate to prior levels.  There is no guarantee, however, that we will be successful in deploying our existing inventory or the new inventory generated by increased production. In addition, there are risks that our inventory could lose some or all of its value due to technological obsolescence, shifts in market demand or other unexpected changes in industry conditions and circumstances. If we are unable to deploy our current inventory or new inventory consistent with our business plan, we may be required to sell it at a loss, abandon it or recycle it into different products. These actions would result in a significant charge to earnings. Such a charge might have a significant impact on our financial positioncondition and results of operations.


Our advanced technologies contracts are subject to the risk of termination by the contracting party and we may not realize the full amounts allocated under thesome contracts due to the lack of Congressional appropriations.

A portion of our fuel cell revenues has been derived from long-term cooperative agreements and other contracts with the U.S. Department of Energy and other U.S. government agencies. These agreements are important to the continued development of our technology and our products. We also contract with private sector companies under certain advanced technologies contracts to develop strategically important and complementary offerings.

Generally, our government research and development contracts are subject to the risk of termination at the convenience of the contracting agency. Furthermore, these contracts, irrespective of the amounts allocated by the contracting agency, are subject to annual Congressional appropriations and the results of government or agency sponsored reviews and audits of our cost reduction projections and efforts. We can only receive funds under these contracts ultimately made available to us annually by Congress as a result of the appropriations process. Accordingly, we cannot be sure whether we will receive the full amounts awarded under our government research and development or other contracts. Failure to receive the full amounts under any of our government research and development contracts could materially and adversely affect our business prospects, results of operations and financial condition.

Our privately funded advanced technologies contracts are subject to termination at the convenience of the contracting party and contain certain milestones and deliverables. Accordingly, we cannot be sure whether we will receive the full amounts contracted for under privately funded advanced technologies contracts. Termination of these contracts or failure to receive the full amounts under any of these contracts could materially and adversely affect our business prospects, results of operations and financial condition.

A negative government audit could result in an adverse adjustment of our revenue and costs and could result in civil and criminal penalties.

Government agencies, such as the Defense Contract Audit Agency, routinely audit and investigate government contractors. These agencies review a contractor’s performance under its contracts, cost structure, and compliance with applicable laws, regulations, and standards. If the agencies determine through these audits or reviews that we improperly allocated costs to specific contracts, they will not reimburse us for these costs. Therefore, an audit could result in adjustments to our revenue and costs.


Further, although we have internal controls in place to oversee our government contracts, no assurance can be given that these controls are sufficient to prevent isolated violations of applicable laws, regulations and standards. If the agencies determine that we or one of our subcontractors engaged in improper conduct, we may be subject to civil or criminal penalties and administrative sanctions, payments, fines, and suspension or prohibition from doing business with the government, any of which could materially affect our results of operations and financial condition.

The U.S. government has certain rights relating to our intellectual property, including the right to restrict or take title to certain patents.patents.

Multiple U.S. patents that we own have resulted from government-funded research and are subject to the risk of exercise of “march-in” rights by the government. March-in rights refer to the right of the U.S. government or a government agency to exercise its non-exclusive, royalty-free, irrevocable worldwide license to any technology developed under contracts funded by the government if the contractor fails to continue to develop the technology. These “march-in” rights permit the U.S. government to take title to these patents and license the patented technology to third parties if the contractor fails to utilize the patents.

 

Our future success and growth is dependent on our market strategy.

We cannot assure you that we will enter into business relationships that are consistent with, or sufficient to support, our commercialization plans and our growth strategy or that these relationships will be on terms favorable to us. Even if we enter into these types of relationships, we cannot assure you that the business associates with whom we form relationships will focus adequate resources on selling our products or will be successful in selling them. Some of these arrangements have required or will require that we grant exclusive rights to certain companies in defined territories. These exclusive arrangements could result in our being unable to enter into other arrangements at a time when the business associate with whom we form a relationship is not successful in selling our products or has reduced its commitment to marketing our products. In addition, future arrangements may also include the issuance of equity and/or warrants to purchase our equity, which may have an adverse effect on our stock price and would dilute our existing stockholders. To the extent we enter into partnerships or other business relationships, the failure of these partners or other business associates to assist us with the deployment of our products may adversely affect our results of operations and financial condition.


We depend on third party suppliers for the development and supply of key raw materials and components for our products.

We use various raw materials and components to construct a fuel cell module, including nickel and stainless steel which are critical to our manufacturing process. We also rely on third-party suppliers for the balance-of-plant components in our products. Suppliers must undergo a qualification process, which takes four to twelve months. We continually evaluate new suppliers, and we are currently qualifying several new suppliers. There are a limited number of suppliers for some of the key components of our products. A supplier’s failure to develop and supply components in a timely manner or to supply components that meet our quality, quantity or cost requirements or our technical specifications, or our inability to obtain alternative sources of these components on a timely basis or on terms acceptable to us, could each harm our ability to manufacture our SureSource products. In addition, to the extent the processes that our suppliers use to manufacture components are proprietary, we may be unable to obtain comparable components from alternative suppliers.

Due to our prior constrained liquidity, we previously delayed certain payments to third parties, including our suppliers, to conserve cash. Management entered into forbearance agreements and payment arrangements with certain suppliers. However, suppliers whose payments were delayed may take action against us, including, but not limited to, filing litigation, arbitration or other proceedings against us.

We do not know whether we will be able to maintain long-term supply relationships with our critical suppliers, or secure new long-term supply relationships, or whether such relationships will be on terms that will allow us to achieve our objectives. Our business prospects, results of operations and financial condition could be harmed if we fail to secure long-term relationships with entities that will supply the required components for our SureSource products.


We depend on our intellectual property, and our failure to protect that intellectual property could adversely affect our future growth and success.

Failure to protect our existing intellectual property rights may result in the loss of our exclusivity or the right to use our technologies. If we do not adequately ensure our freedom to use certain technology, we may have to pay others for rights to use their intellectual property, pay damages for infringement or misappropriation, or be enjoined from using such intellectual property. We rely on patent, trade secret, trademark and copyright law to protect our intellectual property. In addition, we

We have licensed our carbonate fuel cell manufacturing intellectual property to POSCO Energy through a series of manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012, which agreements expire on October 31, 2027, and have provided POSCO Energy with the exclusive right to manufacture, sell, distribute and service our SureSource 300, SureSource 1500 and SureSource 3000 fuel cell technology in Asia. In addition, effective as of June 11, 2019, we entered into the EMRE License Agreement, pursuant to which we agreed, subject to the terms of the EMRE License Agreement, to grant EMRE and its affiliates a non-exclusive, worldwide, fully paid, perpetual, irrevocable, non-transferrable license and right to use our patents, data, know-how, improvements, equipment designs, methods, processes and the like 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. Such right and license is sublicensable to third parties performing work for or with EMRE or its affiliates, but shall not otherwise be sublicensable. We depend on POSCO Energy and EMRE to also protect our intellectual property rights as licensed.

As of October 31, 2018,2019, we, excluding our subsidiaries, had 9395 U.S. patents and 137153 patents in other jurisdictions covering our fuel cell technology (in certain cases covering the same technology in multiple jurisdictions), with patents directed to various aspects of our SureSource technology, SOFCsolid oxide fuel cell (“SOFC”) technology, PEM fuel cell technology and applications thereof. As of October 31, 2018,2019, we also had 5462 patent applications pending in the U.S. and 125112 patent applications pending in other jurisdictions. Our U.S. patents will expire between 20192020 and 2036,2037, and the current average remaining life of our U.S. patents is approximately 9.08.4 years. Our subsidiary, Versa Power Systems, Ltd., as of October 31, 2018,2019, had 3633 U.S. patents and 7696 international patents covering the SOFC technology (in certain cases covering the same technology in multiple jurisdictions), with an average remaining U.S. patent life of approximately 6.35.5 years. As of October 31, 2018,2019, Versa Power Systems, Ltd. also had three1 pending U.S. patent applicationsapplication and 1411 patent applications pending in other jurisdictions. In addition, as of October 31, 2018,2019, our subsidiary, FuelCell Energy Solutions, GmbH, had license rights to two2 U.S. patents and seven7 patents outside the U.S. for carbonate fuel cell technology licensed from Fraunhofer IKTS.

Some of our intellectual property is not covered by any patent or patent application and includes trade secrets and other know-how that is not able to be patented, particularly as it relates to our manufacturing processes and engineering design. In addition, some of our intellectual property includes technologies and processes that may be similar to the patented technologies and processes of third parties. If we are found to be infringing third-party patents, we do not know whether we will be able to obtain licenses to use such patents on acceptable terms, if at all. Our patent position is subject to complex factual and legal issues that may give rise to uncertainty as to the validity, scope, and enforceability of a particular patent.

We cannot assure you that any of the U.S. or international patents owned by us or other patents that third parties license to us will not be invalidated, circumvented, challenged, rendered unenforceable or licensed to others, or that any of our pending or future patent applications will be issued with the breadth of claim coverage sought by us, if issued at all. In addition, effective patent, trademark, copyright and trade secret protection may be unavailable, limited or not applied for in certain foreign countries.


We also seek to protect our proprietary intellectual property, including intellectual property that may not be patented or able to be patented, in part by confidentiality agreements and, if applicable, inventors’ rights agreements with our subcontractors, vendors, suppliers, consultants, strategic business associates and employees. We cannot assure you that these agreements will not be breached, that we will have adequate remedies for any breach or that such persons or institutions will not assert rights to intellectual property arising out of these relationships. Certain of our intellectual property has been licensed to us on a non-exclusive basis from third parties that may also license such intellectual property to others, including our competitors. If our licensors are found to be infringing third-party patents, we do not know whether we will be able to obtain licenses to use the intellectual property licensed to us on acceptable terms, if at all.


If necessary or desirable, we may seek extensions of existing licenses or further licenses under the patents or other intellectual property rights of others. However, we can give no assurances that we will obtain such extensions or further licenses or that the terms of any offered licenses will be acceptable to us. The failure to obtain a license from a third party for intellectual property that we use at present could cause us to incur substantial liabilities, and to suspend the manufacture or shipment of products or our use of processes requiring the use of that intellectual property.

While we are not currently engaged in any intellectual property litigation, we could become subject to lawsuits in which it is alleged that we have infringed the intellectual property rights of others or commence lawsuits against others who we believe are infringing our rights or violating their agreements to protect our intellectual property. Our involvement in intellectual property litigation could result in significant expense to us, adversely affecting the development of sales of the challenged product or intellectual property and diverting the efforts of our technical and management personnel, whether or not that litigation is resolved in our favor.

Our future success will depend on our ability to attract and retain qualified management, technical, and other personnel.

Our future success is substantially dependent on the continued services and performance of our executive officers and other key management, engineering, scientific, manufacturing and operating personnel, particularly Arthur Bottone, our Chief Executive Officer.personnel. The loss of the services of any executive officer, including Mr. Bottone, or other key management, engineering, scientific, manufacturing and operating personnel could materially adversely affect our business. Our ability to achieve our commercialization plans and to increase production at our manufacturing facility in the future will also depend on our ability to attract and retain additional qualified management, technical, manufacturing and operating personnel. Recruiting personnel for the fuel cell industry is competitive. We do not know whether we will be able to attract or retain additional qualified management, technical, manufacturing and operating personnel. Our inability to attract and retain additional qualified management, technical, manufacturing and operating personnel, or the departure of key employees, could materially and adversely affect our development, commercialization and manufacturing plans and, therefore, our business prospects, results of operations and financial condition. In addition, our inability to attract and retain sufficient management, technical, manufacturing and operating personnel to quickly increase production at our manufacturing facility when and if needed to meet increased demand may adversely impact our ability to respond rapidly to any new product, growth or revenue opportunities.

Our inability to attract and retain sufficient qualified management, may be unable to manage rapid growth effectively.

Our fiscal year 2019 plan calls for an increase to our annual production rate.  We may further rapidly expand our facilitiestechnical, engineering, research, and manufacturing capabilities, accelerate the commercializationpersonnel to staff our third party research contracts may result in our inability to complete such contracts or terminations of our productssuch contracts, which may adversely impact financial conditions and enter a period of rapid growth, which will place a significant strain on our senior management team and our financial and other resources. Any expansion may expose us to increased competition, greater overhead, marketing and support costs and other risks associated with the commercialization of a new product. We would need to obtain sufficient backlog in order to maintain the use of the expanded capacity. Our ability to manage rapid growth effectively will require us to continue to secure adequate sources of capital and financing, improve our operations, improve our financial and management information systems and train, motivate and manage our employees. Difficulties in effectively managing issues presented by such a rapid expansion could harm our business prospects, results of operations and financial condition.operations.


We may be affected by environmental and other governmental regulation.

We are subject to various federal, state and local laws and regulations relating to, among other things, land use, safe working conditions, handling and disposal of hazardous and potentially hazardous substances and emissions of carbon dioxide and pollutants into the atmosphere. In addition, it is possible that industry-specific laws and regulations will be adopted covering matters such as transmission scheduling, distribution, emissions, and the characteristics and quality of our products, including installation and servicing. These regulations could limit the growth in the use of carbonate fuel cell products, decrease the acceptance of fuel cells as a commercial product and increase our costs and, therefore, the price of our products. Accordingly, compliance with existing or future laws and regulations could have a material adverse effect on our business prospects, results of operations and financial condition.

Utility companies may resist the adoption of distributed generation and could impose customer fees or interconnection requirements on our customers that could make our products less desirable.

Investor-owned utilities may resist adoption of distributed generation fuel cell plants as such plants are disruptive to the utility business model that primarily utilizes large central generation power plants and associated transmission and distribution. On-site distributed generation that is on the customer-side of the electric meter competes with the utility. Distributed generation on the utility-side of the meter generally has power output that is significantly less than central generation power plants and may be perceived by the utility as too small to materially impact its business, limiting its interest. Additionally, perceived technology risk may limit utility interest in stationary fuel cell power plants.

Utility companies commonly charge fees to larger, industrial customers for disconnecting from the electric grid or for having the capacity to use power from the electric grid for back up purposes. These fees could increase the cost to our customers of using our SureSource products and could make our products less desirable, thereby harming our business prospects, results of operations and financial condition.


We could be liable for environmental damages resulting from our research, development or manufacturing operations.

Our business exposes us to the risk of harmful substances escaping into the environment, resulting in personal injury or loss of life, damage to or destruction of property, and natural resource damage. Depending on the nature of the claim, our current insurance policies may not adequately reimburse us for costs incurred in settling environmental damage claims, and in some instances, we may not be reimbursed at all. Our business is subject to numerous federal, state, and local laws and regulations that govern environmental protection and human health and safety. We believe that our businesses are operating in compliance in all material respects with applicable environmental laws,laws; however, these laws and regulations have changed frequently in the past and it is reasonable to expect additional and more stringent changes in the future.

Our operations may not comply with future laws and regulations and we may be required to make significant unanticipated capital and operating expenditures. If we fail to comply with applicable environmental laws and regulations, governmental authorities may seek to impose fines and penalties on us or to revoke or deny the issuance or renewal of operating permits and private parties may seek damages from us. Under those circumstances, we might be required to curtail or cease operations, conduct site remediation or other corrective action, or pay substantial damage claims.

Our products use inherently dangerous, flammable fuels, operate at high temperatures and use corrosive carbonate material, each of which could subject our business to product liability claims.

Our business exposes us to potential product liability claims that are inherent in products that use hydrogen. Our products utilize fuels such as natural gas and convert these fuels internally to hydrogen that is used by our products to generate electricity. The fuels we use are combustible and may be toxic. In addition, our SureSource products operate at high temperatures and use corrosive carbonate material, which could expose us to potential liability claims. Although we have incorporated a robust design and redundant safety features in our power plants, have established comprehensive safety, maintenance, and training programs, follow third-party certification protocols, codes and standards, and do not store natural gas or hydrogen at our power plants, we cannot guarantee that there will not be accidents. Any accidents involving our products or other hydrogen-using products could materially impede widespread market acceptance and demand for our products. In addition, we might be held responsible for damages beyond the scope of our insurance coverage. We also cannot predict whether we will be able to maintain adequate insurance coverage on acceptable terms.


We are subject to risks inherent in international operations.

Since we market our products both inside and outside the U.S., our success depends in part on our ability to secure international customers and our ability to manufacture products that meet foreign regulatory and commercial requirements in target markets. Sales to customers located outside the U.S. accounts for a significant portion of our consolidated revenue. Sales to customers in South Korea represent the majority of our international sales. We have limited experience developing and manufacturing our products to comply with the commercial and legal requirements of international markets. In addition, we are subject to tariff regulations and requirements for export licenses, particularly with respect to the export of some of our technologies. We face numerous challenges in our international expansion, including unexpected changes in regulatory requirements and other geopolitical risks, fluctuations in currency exchange rates, longer accounts receivable requirements and collections, greater bonding and security requirements, difficulties in managing international operations, potentially adverse tax consequences, restrictions on repatriation of earnings and the burdens of complying with a wide variety of international laws. Any of these factors could adversely affect our results of operations and financial condition.

We source raw materials and parts for our products on a global basis, which subjects us to a number of potential risks, including the impact of export duties and quotas, trade protection measures imposed by the U.S. and other countries including tariffs, potential for labor unrest, changing global and regional economic conditions and current and changing regulatory environments. Changes to these factors may have an adverse effect on our ability to source raw materials and parts in line with our current cost structure.


Although our reporting currency is the U.S. dollar, we conduct our business and incur costs in the local currency of most countries in which we operate. As a result, we are subject to currency translation and transaction risk. Changes in exchange rates between foreign currencies and the U.S. dollar could affect our net sales and cost of sales and could result in exchange gains or losses. We cannot accurately predict the impact of future exchange rate fluctuations on our results of operations.

We could also expand our business into new and emerging markets, many of which have an uncertain regulatory environment relating to currency policy. Conducting business in such markets could cause our exposure to changes in exchange rates to increase, due to the relatively high volatility associated with emerging market currencies and potentially longer payment terms for our proceeds. Our ability to hedge foreign currency exposure is dependent on our credit profile with financial institutions that are willing and able to do business with us. Deterioration in our credit position or a significant tightening of the credit market conditions could limit our ability to hedge our foreign currency exposure;exposure and, therefore, result in exchange gains or losses.

Exports of certain of our products are subject to various export control regulations and may require a license or permission from the U.S. Department of State, the U.S. Department of Energy or other agencies.

As an exporter, we must comply with various laws and regulations relating to the export of products, services and technology from the U.S. and other countries having jurisdiction over our operations. We are subject to export control laws and regulations, including the International Traffic in Arms Regulation, (“ITAR”), the Export Administration Regulation, (“EAR”), and the Specially Designated Nationals and Blocked Persons List, which generally prohibit U.S. companies and their intermediaries from exporting certain products, importing materials or supplies, or otherwise doing business with restricted countries, businesses or individuals, and require companies to maintain certain policies and procedures to ensure compliance. We are also subject to the Foreign Corrupt Practices Act which prohibits improper payments to foreign governments and their officials by U.S. and other business entities. Under these laws and regulations, U.S. companies may be held liable for their actions and actions taken by their strategic or local partners or representatives. If we, or our intermediaries, fail to comply with the requirements of these laws and regulations, or similar laws of other countries, governmental authorities in the United States or elsewhere, as applicable, could seek to impose civil and/or criminal penalties, which could damage our reputation and have a material adverse effect on our business, financial condition and results of operations.

We are also subject to registration under the U.S. State Department’s Directorate of Defense Trade Controls (“DDTC”). Due to the nature of certain of our products and technology, we must obtain licenses or authorizations from various U.S. government agencies such as DDTC or DOE,the U.S. Department of Energy, before we are permitted to sell such products or license such technology outside of the U.S. We can give no assurance that we will continue to be successful in


obtaining the necessary licenses or authorizations or that certain sales will not be prevented or delayed. Any significant impairment of our ability to sell products or license technology outside of the U.S. could negatively impact our results of operations, financial condition or liquidity.

We depend on strategic relationships with third parties, and the terms and enforceability of many of these relationships are not certain.

We have entered into strategic relationships with third parties for the design, product development, sale and service of our existing products and products under development, some of which may not have been documented by a definitive agreement and others of which may require renewal. The terms and conditions of many of these relationships allow for termination by the third parties. Termination or expiration of any of these relationships could adversely affect our ability to design, develop and distribute these products to the marketplace. We cannot assure you that we will be able to successfully negotiate and execute definitive agreements or renewals with any of these third parties, and failure to do so may effectively terminate the relevant relationship.

If we fail to maintain an effective system of internal controls, we may not be able to accurately report our financial results or prevent fraud, which could harm our brand and operating results.


Effective internal controls are necessary for us to provide reliable and accurate financial reports and effectively prevent fraud. We have devoted significant resources and time to comply with the internal control over financial reporting requirements of the Sarbanes-Oxley Act of 2002. In addition, Section 404 under the Sarbanes-Oxley Act of 2002 requires that we assess, and that our auditors attest to, the design and operating effectiveness of our controls over financial reporting. Our compliance with the annual internal control report requirement for each fiscal year will depend on the effectiveness of our financial reporting and data systems and controls. Inferior internal controls could cause investors to lose confidence in our reported financial information, which could have a negative effect on the trading price of our stock and our access to capital.

We are increasingly dependent on information technology, and disruptions, failures or security breaches of our information technology infrastructure could have a material adverse effect on our operations. In addition, increased information technology security threats and more sophisticated computer crime pose a risk to our systems, networks, products and services.

We rely on information technology networks and systems, including the Internet, to process, transmit and store electronic and financial information and to manage a variety of business processes and activities, including communication with power plants owned by us or our customers and production, manufacturing, financial, logistics, sales, marketing and administrative functions. Additionally, we collect and store data that is sensitive to us and to third parties. Operating these information technology networks and systems and processing and maintaining this data, in a secure manner, are critical to our business operations and strategy. We depend on our information technology infrastructure to communicate internally and externally with employees, customers, suppliers and others. We also use information technology networks and systems to comply with regulatory, legal and tax requirements and to operate our fuel cell power plants. These information technology systems, many of which are managed by third parties or used in connection with shared service centers, may be susceptible to damage, disruptions or shutdowns due to failures during the process of upgrading or replacing software, databases or components thereof, power outages, hardware failures, computer viruses, attacks by computer hackers or other cybersecurity risks, telecommunication failures, user errors, natural disasters, terrorist attacks or other catastrophic events. If any of our significant information technology systems suffer severe damage, disruption or shutdown, and our disaster recovery and business continuity plans do not effectively resolve the issues in a timely manner, our product sales, financial condition and results of operations may be materially and adversely affected, and we could experience delays in reporting our financial results, or our fuel cell power plant operations may be disrupted, exposing us to performance penalties under our contracts with customers.

In addition, information technology security threats  from user error to cybersecurity attacks designed to gain unauthorized access to our systems, networks and data  are increasing in frequency and sophistication. Cybersecurity attacks may range from random attempts to coordinated and targeted attacks, including sophisticated computer crime and advanced persistent threats. These threats pose a risk to the security of our systems and networks and the confidentiality, availability and integrity of our data. Cybersecurity attacks could also include attacks targeting customer data or the security, integrity and/or reliability of the hardware and software installed in our products. We


have experienced, and may continue to experience in the future, cybersecurity attacks that have resulted in unauthorized parties gaining access to our information technology systems and networks and, we could in one instance, gaining control of the future experience similar attacks.information technology system at one of our power plants. However, to date, no cybersecurity attack has resulted in any material loss of data, interrupted our day-to-day operations or had a material impact on our financial condition, results of operations or liquidity. While we actively manage information technology security risks within our control, there can be no assurance that such actions will be sufficient to mitigate all potential risks to our systems, networks and data. In addition to the direct potential financial risk as we continue to build, own and operate generation assets, other potential consequences of a material cybersecurity attack include reputational damage, litigation with third parties, disruption to systems, unauthorized release of confidential or otherwise protected information, corruption of data, diminution in the value of our investment in research, development and engineering, and increased cybersecurity protection and remediation costs, which in turn could adversely affect our competitiveness, results of operations and financial condition. The amount of insurance coverage we maintain may be inadequate to cover claims or liabilities relating to a cybersecurity attack.

 

Litigation could expose us to significant costs and adversely affect our business, financial condition, and results of operations.

We are, or may become, party to various lawsuits and claims arising in the ordinary course of business, which may include lawsuits or claims relating to commercial liability, product recalls, product liability, product claims, employment matters, environmental matters, breach of contract, or other aspects of our business. Litigation is inherently unpredictable, and although we may believe we have meaningful defenses in these matters, we may incur judgments or enter into settlements of claims that could have a material adverse effect on our business, financial condition, and results of operations. The costs of responding to or defending litigation may be significant and may divert the attention of management away from our strategic objectives. There may also be adverse publicity associated with litigation that may decrease customer confidence in our business, regardless of whether the allegations are valid or whether we are ultimately found liable. As a result, litigation may have a material adverse effect on our business, financial condition, and results of operations.


Our results of operations could vary as a result of changes to our accounting policies or the methods, estimates and judgments we use in applying our accounting policies.

The methods, estimates and judgments we use in applying our accounting policies have a significant impact on our results of operations. Such methods, estimates and judgments are, by their nature, subject to substantial risks, uncertainties and assumptions, and factors may arise over time that could lead us to reevaluate our methods, estimates and judgments.

In future periods, management will continue to reevaluate its estimates for contract margins, service agreements, loss accruals, warranty, performance guarantees, liquidated damages and inventory valuation allowances. Changes in those estimates and judgments could significantly affect our results of operations and financial condition. We will also adopt changes required by the Financial Accounting Standards Board and the Securities and Exchange Commission (“SEC”).SEC.

Our stock price has been and could remain volatile.

The market price for our common stock has been and may continue to be volatile and subject to extreme price and volume fluctuations in response to market and other factors, including the following, some of which are beyond our control:

failure to meet commercialization milestones;

failure to win contracts through competitive bidding processes;

the loss of a major customer;customer or a contract;

variations in our quarterly operating results from the expectations of securities analysts or investors;

downward revisions in securities analysts’ estimates or changes in general market conditions;

changes in the securities analysts that cover us or failure to regularly publish reports;


announcements of technological innovations or new products or services by us or our competitors;

announcements of technological innovations or new products or services by us or our competitors;

announcements by us or our competitors of significant acquisitions, strategic partnerships, joint ventures or capital commitments;

additions or departures of key personnel;

investor perception of our industry or our prospects;

insider selling or buying;

demand for our common stock;

dilution from issuances of common stock;

general market trends or preferences for non-fueled resources;

general technological or economic trends; and

changes in United States or foreign political environment and the passage of laws, including, tax, environmental or other laws, affecting the product development business.

In the past, following periods of volatility in the market price of their stock, many companies have been the subject of securities class action litigation. If we became involved in securities class action litigation in the future, it could result in substantial costs and diversion of management’s attention and resources and could harm our stock price, business prospects, results of operations and financial condition.


Provisions of Delaware and Connecticut law and of our certificate of incorporation and by-laws and our outstanding securities may make a takeover more difficult.

Provisions in our certificateCertificate of incorporationIncorporation, as amended (“Certificate of Incorporation”), and by-lawsAmended and Restated By-Laws (“By-Laws”) and in Delaware and Connecticut corporate law may make it difficult and expensive for a third-party to pursue a tender offer, change in control or takeover attempt that is opposed by our management and board of directors. In addition, certain provisions of FCE FuelCell Energy Ltd.’s (“FCE Ltd.”) the Class A Cumulative Redeemable Exchangeable Preferred Shares (“Seriesissued by FCE FuelCell Energy Ltd. (the “Series 1 Preferred Shares”), and our 5% Series B Cumulative Convertible Perpetual Preferred Stock (“Series B Preferred Stock” and such shares, the “Series B Preferred Shares”), our Series C Convertible Preferred Stock (“Series C Preferred Stock” and such shares, the “Series C Preferred Shares”), and our Series D Convertible Preferred Stock (“Series D Preferred Stock” and such shares, the “Series D Preferred Shares”)Shares could make it more difficult or more expensive for a third party to acquire us. Public stockholders who might desire to participate in such a transaction may not have an opportunity to do so. These anti-takeover provisions could substantially impede the ability of public stockholders to benefit from a change in control or change in our management and board of directors.

Our amended and restated by-lawsBy-Laws provide that the Court of Chancery of the State of Delaware is the exclusive forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a judicial forum deemed favorable by the stockholder for disputes with us or our directors, officers or employees.

Our amended and restated by-lawsBy-Laws provide that the Court of Chancery of the State of Delaware is the exclusive forum for any derivative action or proceeding brought on our behalf, any action asserting a breach of fiduciary duty, any action asserting a claim against us arising pursuant to the Delaware General Corporation Law, our certificateCertificate of incorporationIncorporation or our amended and restated by-laws,By-Laws, any action to interpret, apply, enforce, or determine the validity of our certificateCertificate of incorporationIncorporation or amended and restated by-laws,By-Laws, or any action asserting a claim against us that is governed by the internal affairs doctrine. The choice of forum provision may limit a stockholdersstockholder’s ability to bring a claim in a judicial forum that the stockholder finds favorable for disputes against us or our directors, officers or other employees, which may discourage such lawsuits against us and our directors, officers and other employees. Alternatively, if a court were to find the choice of forum provision contained in our amended and restated by-lawsBy-Laws to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could adversely affect our business and financial condition.


The implementation of our business plan and strategy will require additional capital.

The implementation of our business plan and strategy requires additional capital.capital to fund operations as well as investment by us in project assets. If we are unable to raise additional capital in the amounts required, or at all, we will not be able to successfully implement our business plan and strategy. There can be no guarantee that we will be able to raise such additional capital at the times required or in the amounts required for the implementation of our business plan and strategy. In addition, the recent change to a more capital-intensive business model increases the risks of our being able to successfully implement our plans, if we do not raise additional capital in the amounts required. If we are unable to raise additional capital, our business, operations and prospects could be materially and adversely affected.

We will need to raise additional capital, and such capital may not be available on acceptable terms, if at all. If we do raise additional capital utilizing equity, existing stockholders will suffer dilution. If we do not raise additional capital, our business could fail or be materially and adversely affected.

We will need to raise additional funds in debt and equity financings, and these funds may not be available to us when we need them or on acceptable terms, if at all. Such additional financings could be significant. If we raise additional funds through further issuances of our common stock, or securities convertible or exchangeable into shares of our common stock, into the public market, including shares of our common stock issued upon exercise of options or warrants, youholders of our common stock could suffer significant dilution, and any new equity securities we issue could have rights, preferences and privileges superior to those of our then-existing capital stock. Any debt financing secured by us in the future could involve restrictive covenants relating to our capital raising activities and other financial and operational matters, which may make it more difficult for us to obtain additional capital and to pursue business opportunities. If we cannot raise additional funds when we need them, our business and prospects could fail or be materially and adversely affected. In addition, if additional funds are not secured in the future, we will have to modify, reduce, defer or eliminate parts of our present and anticipated future projects.


Future sales of substantial amounts of our common stock could affect the market price of our common stock.

Future sales of substantial amounts of our common stock, or securities convertible or exchangeable into shares of our common stock, into the public market, including shares of our common stock issued upon exercise of options or warrants, or perceptions that those sales could occur, could adversely affect the prevailing market price of our common stock and our ability to raise capital in the future.

We may be subject to actions for rescission or damages or other penalties in connection with certain sales of shares of our common stock in the open market.

Between August 2005 and April 2017, we sold shares of our common stock pursuant to a series of at-the-market“at-the-market” sales plans. The shares sold pursuant to these sales plans represented a portion of the shares registered by us pursuant to shelf registration statements we filed with the SEC during this time period. While we reported the actual shares sold and proceeds, net of fees, of sales made during each fiscal quarter pursuant to the sales plans in our annual and quarterly reports on Forms 10-K and 10-Q, we did not file or deliver prospectus supplements at the time of or prior to making these sales. Accordingly, these sales may not have been in compliance with applicable federal and/or state securities laws, and the purchasers of such shares may have rescission rights or claims for damages. In addition, to the extent that these sales were not in compliance with applicable federal and/or state securities laws, we may be subject to penalties imposed by the SEC and/or state securities agencies. We have reported these sales to the SEC, and in response to our report, the SEC has opened an informal investigation of these sales. If purchasers successfully seek rescission and/or damages, and/or the SEC and/or state securities agencies impose financial penalties on us which are not covered by insurance, we may not have sufficient resources to make the necessary payments, and any such claims, damages or penalties could have a material adverse effect on our stock price, business prospects, results of operations, and financial condition. Although we believe we would have defenses to such claims or actions if brought, we are unable to predict the likelihood of any claims or actions being brought against us, or the amount of any damages or financial penalties which could be sought against us, or the extent to which any such financial exposure would be covered by insurance.  However, we believe the likelihood of any claims or actions being brought against us is remote.

The situation with POSCO Energy has limited and continues to limit our efforts to access the South Korean and Asian markets and could expose us to costs of arbitration or litigation proceedings.

From approximately 2007 through 2015, we relied on POSCO Energy to develop and grow the South Korean and Asian markets for our products and services. We entered into manufacturing and technology transfer agreements with POSCO Energy in 2007, 2009 and 2012, each of which expires on October 31, 2027. The Cell Technology Transfer Agreement (“CTTA”) provides POSCO Energy with the technology rights to manufacture, sell, distribute and service our SureSource 300, SureSource 1500 and SureSource 3000 fuel cell technology in Asia. The CTTA requires POSCO Energy to pay to us a 3.0% royalty on POSCO Energy net product sales, as well as a royalty on scheduled fuel cell module replacements under service agreements for modules that were built by POSCO Energy and installed at plants in Asia under the terms of long-term service agreements between POSCO Energy and its customers. While the aforementioned manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012 remain in effect, due to certain action and inactions of POSCO Energy, we have not realized any material revenues, royalties or new projects developed by POSCO Energy since 2016.

In March 2017, we entered into a memorandum of understanding (“MOU”) with POSCO Energy to permit us to directly develop the Asian fuel cell business, including the right for us to sell SureSource solutions in South Korea and the broader Asian market.  In June 2018, POSCO Energy advised us in writing that it was terminating the MOU effective July 15, 2018.  Pursuant to the terms of the MOU, notwithstanding its termination, we will continue to execute on sales commitments in Asia secured in writing prior to July 15, 2018, including the 20 MW power plant installed for KOSPO.

On or about November 2, 2018, POSCO Energy served FuelCell Energy with an arbitration demand, initiating a proceeding to resolve various outstanding amounts between the companies. The parties amicably resolved the arbitration proceeding in July 2019. Since that date, we have made numerous attempts to engage with POSCO Energy to address the need for deployment of carbonate fuel cell technology in the Asian market in accordance with the requirements of the manufacturing and technology transfer agreements, our understanding of the desire of the South Korean government to advance fuel cell and hydrogen technology, and the needs of the Asian market, but have made little progress to date.


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 aforementioned manufacturing and technology transfer agreements to KFC, but retained distribution rights, including trademarks, and severed its own liability under the aforementioned manufacturing and technology transfer agreements. We believe that these actions are all in material breach of the terms of the CTTA and other manufacturing and technology transfer agreements and are effectively a misappropriation of the Company’s intellectual property. We have formally objected to POSCO Energy’s spin-off, and POSCO Energy has posted a bond to secure any liabilities to FuelCell Energy arising out of the spin-off. In light of the situation with POSCO Energy, we are evaluating all of our options with respect to our relationship and agreements with POSCO Energy, including trade related matters, POSCO Energy’s material breach of its obligations under the CTTA and the manufacturing and technology transfer agreements, and the misappropriation of our intellectual property.  

We cannot predict the outcome of any future discussions with, or actions or legal proceedings against, POSCO Energy or KFC, if they occur, the future status or scope of our relationship with POSCO Energy or KFC, whether our relationship with POSCO Energy or KFC will continue in the future, whether we will become involved in additional mediations, arbitrations, litigation or other proceedings with POSCO Energy or KFC, what the costs of any such proceedings will be or the effect of such proceedings on the market. Any such proceedings could result in significant expense to us and adversely affect our business and financial condition and reputation in the market, whether or not such proceedings are resolved in our favor. If our relationship with POSCO Energy or KFC ends, or continues on terms that are less favorable to us, or remains unresolved, our efforts to access the South Korean and Asian markets, which are complex markets, may not be successful or may be limited, hindered or delayed.

The rights of the Series 1 Preferred Shares and theour Series B Preferred Stock could negatively impact our cash flows and the rights of our Series B Preferred Stock could dilute the ownership interest of our stockholders.

The terms of the Series 1 Preferred Shares issued by FCE FuelCell Energy Ltd. (“FCE Ltd.”) provide rights to the holder, Enbridge Inc. (“Enbridge”), which could negatively impact us.

The provisions of the Series 1 Preferred Shares, as such will be amended pursuant to a letter agreement entered into by the Company, FCE Ltd. and Enbridge on January 20, 2020, require that FCE Ltd. make annual payments totaling Cdn. $1,250,000, including (i) annual dividend payments of Cdn. $500,000 and (ii) annual return of capital payments of Cdn. $750,000. These$750,000, with such payments will endto be made on a quarterly basis through December 31, 2020. Additional2021. Commencing on January 1, 2020, dividends accrue at an annual rate of 15% on cumulative unpaid dividends at a 1.25% quarterly rate, compounded quarterly, until payment thereof. On December 31, 2020, the amount of allprincipal redemption price with respect to the Series 1 Preferred Shares and any accrued and unpaid dividends on the Series 1 Preferred Shares. The aggregate amount of all accrued and unpaid dividends to be paid on the Series 1 Preferred Shares ofon or before December 31, 2021 is expected to be Cdn. $21.1$26.5 million and the balance of the principal redemption price of Cdn. $4.4 million mustto be paid on or before December 31, 2021 with respect to the holdersall of the Series 1 Preferred Shares.Shares is expected to be Cdn. $3.5 million. In connection with the letter agreement, the Company entered into the Second Amendment to the Orion Credit Agreement (the “Second Orion Amendment”), which adds a new affirmative covenant to the Orion Credit Agreement that obligates the Company to, and to cause FCE Ltd. hasto, on or prior to November 1, 2021, either (i) pay and satisfy in full all of their respective obligations in respect of, and fully redeem and cancel, all of the optionSeries 1 Preferred Shares of making dividend paymentsFCE Ltd., or (ii) deposit in a newly created account of FCE Ltd. or the formCompany cash in an amount sufficient to pay and satisfy in full all of common stocktheir respective obligations in respect of, and to effect a redemption and cancellation in full of, all of the Series 1 Preferred Shares of FCE Ltd. The Second Orion Amendment also provides that the articles of FCE Ltd. setting forth the modified terms of the Series 1 Preferred Shares will be considered a “Material Agreement” under the Orion Credit Agreement.  Under the Second Orion Amendment, a failure to satisfy this new affirmative covenant or cash underto otherwise comply with the terms of the Series 1 Preferred Shares.Shares will constitute an event of default under the Orion Credit Agreement, which could result in the acceleration of any amounts outstanding under the Orion Credit Agreement.

We are also required to issue common stock to the holder of the Series 1 Preferred Shares if and when the holder exercises its conversion rights. The number of shares of common stock that we may issue upon conversion could be significant and dilutive to our existing stockholders. For example, assuming the holder of the Series 1 Preferred Shares exercises its conversion rights after July 31, 2020 and assuming our common stock price is $0.85 (our common stock closing price on October 31, 2018), and an exchange rate of U.S. $1.00 to Cdn. $1.31 (exchange rate on October 31, 2018) at the time of conversion, we would be required to issue approximately 4,192,221 shares of our common stock.

The terms of theour Series B Preferred Stock also provide rights to their holders that could negatively impact us. Holders of the Series B Preferred Stock are entitled to receive cumulative dividends at the rate of $50 per share per year, payable either in cash or in shares of our common stock. To the extent the dividend is paid in shares, additional issuances could be dilutive to our existing stockholders and the sale of those shares could have a negative impact on the price of our common stock. A share of our Series B Preferred Stock may be converted at any time, at the option of the holder, into 7.09220.5910 shares of our common stock (which is equivalent to an initial conversion price of $141$1,692 per


share), plus cash in lieu of fractional shares. Furthermore, the conversion rate applicable to the Series B Preferred Stock is subject to additional adjustment upon the occurrence of certain events.

 

Conversion of all of the Series D Preferred Shares is contingent upon stockholder approval.

Pursuant to the requirements of Nasdaq Listing Rule 5635(d), the Series D Preferred Shares may not be converted or redeemed by payment of shares of our common stock if such conversion or redemption would cause us to issue a number of shares equal to 20% or more of our outstanding voting stock as of the date of the issuance of the Series D Preferred Shares, until our stockholders approve the issuance of the common stock underlying the Series D Preferred Shares. We have agreed to file a proxy statement with the SEC for the purpose of having our stockholders vote on a proposal to approve such issuances (such approval, the “Requisite Stockholder Approval”), and further agreed to hold such stockholders’ meeting by no later than April 30, 2019. Our stockholders may reject such a proposal, which would impact our ability to make payments in the form of common stock pursuant to the amortization provisions of the Series D Preferred Shares and would require us to make such payments in cash.

We may not be able to make cash payments to redeem the Series C Preferred Shares and the Series D Preferred Shares.

We have the obligation to make bimonthly redemption payments on the Series C Preferred Shares and Series D Preferred Shares commencing on November 1, 2017 and December 1, 2018, respectively. These mandatory redemption payments may each be made, at our option, in cash or in shares of our common stock or in a combination of cash and shares of our common stock, except that our right to make payment in shares of common stock is dependent upon our satisfying certain equity conditions, unless such conditions are waived by the holders of the Series C Preferred Shares or the Series D Preferred Shares, as applicable. Among other things, these equity conditions include our continued listing on The Nasdaq Global Market or another permitted exchange and our stock maintaining certain minimum average prices and trading volumes during the applicable measurement period. In addition, the Series D Preferred Shares may not be converted or redeemed by payment of shares of our common stock if such conversion or redemption would cause us to issue a number of shares equal to 20% or more of our outstanding voting stock as of


the date of the issuance of the Series D Preferred Shares, until our stockholders approve the issuance of the common stock underlying the Series D Preferred Shares. If we cannot satisfy the equity conditions, or, with respect to the Series D Preferred Shares, if our stockholders do not approve the issuance of a number of shares equal to 20% or more of our outstanding voting stock as of the date of issuance of the Series D Preferred Shares, we will not be able to make or will be limited in our ability to make (as applicable) our bimonthly mandatory redemption payments in stock, and we would be forced to make such bimonthly payments in cash. We may not have sufficient cash resources at the applicable time to make those cash payments, or to make such cash payments in full. In addition, certain such cash payments may not permitted under the terms of our existing or future indebtedness or may cause us to fail to satisfy financial maintenance covenants.

Further, any failure to pay any amounts due to the holders of the Series C Preferred Shares and/or the Series D Preferred Shares, as well as certain other “triggering events,” including, without limitation, our failure to timely deliver shares, our suspension of trading, our failure to keep reserved for issuance an adequate number of shares of common stock to cover conversion of the Series C Preferred Shares and Series D Preferred Shares, and breaches of certain covenants that are not timely cured, where a cure period is permitted, would permit the holders of the Series C Preferred Shares and/or Series D Preferred Shares (as applicable) to require us to redeem such Series C Preferred Shares and/or Series D Preferred Shares (as applicable), in cash at a price equal to the greater of (i) 125% of the stated value of the Series C Preferred Shares or Series D Preferred Shares being redeemed, as the case may be, plus accrued dividends, if any, and (ii) the market value of the number of shares issuable on conversion of the Series C Preferred Shares or Series D Preferred Shares, as the case may be, valued at the greatest closing sales price during the period from the date immediately before the triggering event through the date we make the redemption payment. However, if we are actually delisted from The Nasdaq Global Market, without obtaining a listing on another national securities exchange, it would constitute a triggering event under the Certificate of Designations, Preferences and Rights of the Series C Preferred Stock of FuelCell Energy (the “Series C Certificate of Designations”) and the Certificate of Designations, Preferences and Rights of the Series D Preferred Stock of FuelCell Energy (the “Series D Certificate of Designation”) and would also cause a failure of the equity conditions that must be satisfied in order for us to make redemptions payments in shares of our common stock. Thus, if we fail to maintain trading or listing, as applicable, or if for any other reason we are required to repurchase the Series C Preferred Shares and/or the Series D Preferred Shares in cash prior to maturity, no assurance can be given that we would have the cash or financial resources available to us to make such a payment (or that we would be permitted to make such a payment under the terms of our indebtedness), and such an acceleration could have a material adverse effect on our business, results of operations and financial condition.

The Series B Preferred Stock Series C Preferred Shares and Series D Preferred Shares rankranks senior to our common stock with respect to payments upon liquidation, dividends, and distributions.

The rights of the holders of theour Series B Preferred Stock Series C Preferred Shares and Series D Preferred Shares rank senior to theour obligations to our common stockholders. Upon our liquidation, thethe holders of Series B Preferred Stock are entitled to receive $1,000.00 per share plus all accumulated and unpaid dividends.dividends (the “Liquidation Preference”). Until the holders of Series B Preferred Stock receive their Liquidation Preference in full, no payment will be made on any junior shares, including our Series C Preferred Shares, our Series D Preferred Shares, and shares of our common stock.Upon our liquidation, the holders of Series C Preferred Shares are entitled to receive an amount per Series C Preferred Share equal to the greater of (A) the stated value thereof on the date of such payment, plus accrued dividends, if any and (B) the amount per share such holder would receive if such holder converted such Series C Preferred Shares into common stock immediately prior to the date of such payment. Upon our liquidation, the holders of Series D Preferred Shares are entitled to receive an amount per Series D Preferred Share equal to the greater of (A) the stated value thereof on the date of such payment, plus accrued dividends, if any and (B) the amount per share such holder would receive if such holder converted such Series D Preferred Shares into common stock immediately prior to the date of such payment. Further, the holders of Series C Preferred Shares and Series D Preferred Shares have the right to participate in any payment of dividends or other distributions made to the holders of common stock to the same extent as if they had converted such preferred shares. The existence of senior securities such as the Series B Preferred Stock Series C Preferred Shares and Series D Preferred Shares could have an adverse effect on the value of our common stock.


Item 1B.

UNRESOLVED STAFF COMMENTS

Holders of the Series C Preferred Shares and Series D Preferred Shares have rights that may restrict our ability to operate our business.

Under the Series C Certificate of Designation and Series D Certificate of Designation, we are subject to certain covenants that limit our ability to create new series of preferred stock, other than series junior to the Series C Preferred Shares and Series D Preferred Shares with redemption occurring after the maturity date of the Series C Preferred Shares and Series D Preferred Shares, and our ability to incur certain indebtedness. Such restrictions may have an adverse effect on our ability to operate our business while the Series C Preferred Shares and Series D Preferred Shares are outstanding.

Our common stockholders may experience significant dilution upon the issuance of common stock upon conversion of or redemption payments under the Series C Preferred Shares and Series D Preferred Shares.

The issuance of common stock as mandatory redemption payments or upon conversion of some or all of the Series C Preferred Shares and/or Series D Preferred Shares will dilute the ownership interests of existing holders of shares of our common stock. As of October 31, 2018, the aggregate outstanding liquidation preference of the Series C Preferred Shares totaled $9.0 million. If this amount was converted into our common stock at the adjusted conversion price in effect as of October 31, 2018 of $1.50, we would have issued 5,994,946 shares of common stock upon conversion (without giving effect to any limitation on conversions). This excludes the effect of any common stock we may issue in lieu of paying bimonthly redemption amounts in cash, which may be made at a price lower than the conversion price. The conversion price of the Series C Preferred Shares is adjustable based on certain events, including in the event of a triggering event and in the event we effect a stock split, combination or similar transaction, to reflect the proportionate (adjusted) trading prices of our common stock before and after the effective date.

As of October 31, 2018, the aggregate outstanding liquidation preference of the Series D Preferred Shares totaled $30.7 million. If this amount was converted into our common stock at its initial conversion price, we would have issued 22,231,884 shares of common stock upon conversion (without giving effect to any limitation on conversions). This excludes the effect of any common stock we may issue in lieu of paying bimonthly redemption amounts in cash, which may be made at a price lower than the initial conversion price. The initial conversion price of the Series D Preferred Shares is adjustable based on certain events, including in the event of a triggering event (as defined in the Series D Certificate of Designation), in the event we effect a stock split, combination or similar transaction, to reflect the proportionate (adjusted) trading prices of our common stock before and after the effective date, in the event we issue shares pursuant to our At Market Issuance Sales Agreement with B. Riley FBR, Inc. and Oppenheimer & Co., Inc. dated June 13, 2018, and in the event we issue any securities that are deemed variable price securities (as defined in the Series D Certificate of Designation).

If we do not meet the continued listing standards of The Nasdaq Global Market, our common stock could be delisted from trading, which could limit investors’ ability to make transactions in our common stock and subject us to additional trading restrictions.

 

Our common stock is listed on The Nasdaq Global Market, which imposes continued listing requirements with respect to listed shares. On November 28, 2018, we received a letter from The Nasdaq Stock Market (“Nasdaq”) stating that we are not in compliance with Nasdaq Listing Rule 5450(a)(1) because the closing bid price of our common stock was below the required minimum of $1.00 per share for the previous 30 consecutive business days.  In accordance with Nasdaq Listing Rules, we have a period of 180 calendar days, or until May 28, 2019, to regain compliance with the minimum bid price requirement. If at any time before May 28, 2019 the closing bid price of our common stock is at least $1.00 per share for a minimum of 10 consecutive business days, Nasdaq will provide us with written confirmation that we have regained compliance with the minimum bid price requirement and this matter will be closed.  We have notified Nasdaq of our intention to regain compliance with the Nasdaq minimum bid price requirement. If we are unable to demonstrate compliance with Rule 5450(a)(1) by May 28, 2019, we can submit an application to transfer our securities to The Nasdaq Capital Market and request an additional 180-day period to regain compliance with the minimum bid price requirement.


There can be no assurance, however, that we will be able to regain compliance with the minimum bid price requirement or that we will otherwise be in compliance with other Nasdaq listing criteria. If we fail to regain and maintain compliance with the minimum bid requirement or to meet the other applicable continued listing requirements in the future and Nasdaq determines to delist our common stock, the delisting could adversely affect the market price and liquidity of our common stock, reduce our ability to raise additional capital, and result in a triggering event under the Series C Certificate of Designations and the Series D Certificate of Designation.None.

Item 1B.  UNRESOLVED STAFF COMMENTS

None.

Item 2.

PROPERTIES

The following is a summary of our offices and locations:

 

 

 

 

 

Square

 

 

Lease

Expiration

Location

 

Business Use

 

Footage

 

 

Dates

Danbury, Connecticut

 

Corporate Headquarters, Research and

Development, Sales, Marketing, Service,

Purchasing and Administration

 

 

72,000

 

 

Company owned

Torrington, Connecticut

 

Manufacturing and Administrative

 

167,000(1)

 

 

December 2030(2)(1)

Taufkirchen, Germany

 

Manufacturing and Administrative

 

 

20,000

 

 

June 20202023

Calgary, Alberta, Canada

 

Research and Development

 

 

32,220

 

 

January 2020(2)

 

(1)

The Company completed its expansion of the Torrington facility which added an additional 102,000 square feet for a total of 167,000 square feet. See Note 12 of the Notes to Consolidated Financial Statements for additional information.

(2)

In November 2015, this lease was extended until December 2030, with the option to extend for three additional five-year periods thereafter.

(2)

The Company has negotiated and is in the process of executing a lease extension, pursuant to which the lease will expire in January 2023.

Item 3.

LEGAL PROCEEDINGS

We are involved in legal proceedings, claims and litigation arising out of the ordinary conduct of our business. Although we cannot assure the outcome, management presently believes that the result of such legal proceedings, either individually, or in the aggregate, will not have a material adverse effect on our consolidated financial statements, and no material amounts have been accrued in our consolidated financial statements with respect to these matters.

Item 4.

Mine Safety Disclosures

Not applicable.


PART II

Item 5.

MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES

FuelCell Common Stock

Our common stock has been publicly traded since June 25, 1992. Our common stock trades under the symbol “FCEL” on the Nasdaq Global Market. The following table sets forth the high and low sale prices for our common stock for the periods indicated as reported by the Nasdaq Global Market during the indicated quarters.

 

 

 

Common

Stock Price

 

 

 

High

 

 

Low

 

First quarter 2019  (through January 4, 2019)

 

$

0.97

 

 

$

0.47

 

Year Ended October 31, 2018

 

 

 

 

 

 

 

 

First Quarter

 

$

2.31

 

 

$

1.50

 

Second Quarter

 

$

2.11

 

 

$

1.45

 

Third Quarter

 

$

1.99

 

 

$

1.25

 

Fourth Quarter

 

$

1.33

 

 

$

0.72

 

Year Ended October 31, 2017

 

 

 

 

 

 

 

 

First Quarter

 

$

3.40

 

 

$

1.40

 

Second Quarter

 

$

1.98

 

 

$

1.00

 

Third Quarter

 

$

1.79

 

 

$

0.80

 

Fourth Quarter

 

$

2.49

 

 

$

1.33

 

In December 2017, the number of authorized shares of the Company’s common stock was increased from 125 million shares to 225 million shares by a vote of the holders of a majority of the outstanding shares of the Company’s common stock. In April 2017, the number of authorized shares of the Company’s common stock was increased from 75 million to 125 million by vote of the holders of a majority of the outstanding shares of the Company’s common stock.

On January 4, 2019,14, 2020, the closing price of our common stock on the Nasdaq Global Market was $0.55$2.08 per share. As of January 4, 2019,14, 2020, there were 188110 holders of record of our common stock. This does not include the number of persons whose stock is in nominee or “street” name accounts through brokers.

We have never paid a cash dividend on our common stock and do not anticipate paying any cash dividends on our common stock in the foreseeable future. In addition, the terms of our Series B Preferred Stock prohibit the payment of dividends on our common stock unless all dividends on the Series B Preferred Stock have been paid in full.

In April 2017, the number of authorized shares of the Company’s common stock was increased from 75 million to 125 million by vote of the holders of a majority of the outstanding shares of the Company’s common stock.

In December 2017, the number of authorized shares of the Company’s common stock was increased from 125 million shares to 225 million shares by a vote of the holders of a majority of the outstanding shares of the Company’s common stock.

On May 8, 2019, the Company effected a 1-for-12 reverse stock split, reducing the number of our common shares outstanding on that date from 183,411,230 shares to 15,284,269 shares.  The number of authorized shares of common stock remained (and remains) unchanged at 225,000,000 shares and the number of authorized shares of preferred stock remained (and remains) unchanged at 250,000 shares.  Additionally, the conversion rate of our Series B Preferred Stock, the conversion price of our then outstanding Series C Convertible Preferred Stock and Series D Convertible Preferred Stock, the exchange price of our Series 1 Preferred Shares, the exercise price of all then outstanding options and warrants, and the number of shares reserved for future issuance pursuant to our equity compensation plans were all adjusted proportionately in connection with the reverse stock split.  All share and per share amounts and conversion prices presented herein have been adjusted retroactively to reflect these changes.

FuelCell Preferred Stock

Information concerning the Company’s Series B Preferred Stock and the Series 1 Preferred Shares issued by FCE Ltd. is incorporated herein by reference from Note 15. “Redeemable Preferred Stock” and Note 23. “Subsequent Events” of the Notes to the Consolidated Financial Statements.


Performance Graph

The following graph compares the annual change in the Company's cumulative total stockholder return on its common stock for the five fiscal years ended October 31, 20182019 with the cumulative stockholder total return on the Russell 2000 Index, a peer group consisting of Standard Industry Classification Group Code 3690 companies listed on the Nasdaq Global Market and New York Stock Exchange and a customized 12 company peer group. It assumes $100.00 invested on October 31, 20132014 with dividends reinvested.

 


FuelCell Redeemable Preferred Stock

The Company is authorized to issue up to 250,000 shares of preferred stock, par value $0.01 per share, issuable in one or more series, of which shares to date have been issued and designated as Series D Convertible Preferred Stock (referred to herein as Series D Preferred Stock), Series C Convertible Preferred Stock (referred to herein as Series C Preferred Stock) and 5% Series B Cumulative Convertible Perpetual Preferred Stock (referred to herein as Series B Preferred Stock).

Series D Preferred Stock

On August 27, 2018, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with Oppenheimer & Co. Inc. (the “Underwriter”), relating to an underwritten offering (the “Offering”) of the Company’s Series D Preferred Stock.  Subject to the terms and conditions contained in the Underwriting Agreement, the Underwriter agreed to purchase, and the Company agreed to sell, 30,680 Series D Preferred Shares, initially convertible into 22,231,884 shares of the Company’s common stock (without regard to any limitation on conversion set forth in the Series D Certificate of Designation) at an initial conversion price of $1.38 per share, subject to certain adjustments.

The Offering closed on August 29, 2018.  The net proceeds to the Company from the sale of the Series D Preferred Shares, after deducting the underwriting discounts and commissions and the offering expenses payable by the Company, were approximately $25.3 million.

In conjunction with the closing of the Offering, on August 29, 2018, the Company filed the Series D Certificate of Designation with the Secretary of State of the State of Delaware, designating 30,680 shares of the Company’s preferred stock as Series D Convertible Preferred Stock and establishing the rights, preferences, privileges, qualifications, restrictions, and limitations relating to the Series D Preferred Stock, as described below.  

Based on review of pertinent accounting literature including Accounting Standards Codification (“ASC”) 470 – Debt, ASC 480 - Distinguishing Liabilities from Equity and ASC 815 - Derivative and Hedging, the Series D Preferred Shares are classified outside of permanent equity on the Consolidated Balance Sheets and were recorded at fair value on the issuance date (proceeds from the issuance, net of direct issuance cost).  An assessment of the probability of the exercise of the potential redemption features in the Series D Certificate of Designation for the Series D Preferred Stock is performed at each reporting date to determine whether any changes in classification are required.  As discussed below, the Company has not obtained stockholder approval to issue a number of shares of common stock equal to 20% or more of the Company’s outstanding voting stock as of the date of the issuance of the Series D Preferred Shares and therefore is accreting as part of the stated value the estimated value of the potential common stock shortfall if stockholder approval is not obtained. As of October 31, 2018, the Company determined that none of the other contingent redemption features were probable.  

A description of certain terms and provisions of the Series D Preferred Shares is as follows:

Conversion Right.  The Series D Preferred Shares are convertible into shares of the Company’s common stock, subject to the requirements of Nasdaq Listing Rule 5635(d), and the beneficial ownership limitation provided in the Series D Certificate of Designation, at a conversion price equal to $1.38 per share of common stock (“Series D Conversion Price”), subject to adjustment as provided in the Series D Certificate of Designation, including adjustments if the Company sells shares of common stock or equity securities convertible into or exercisable for shares of common stock, at prices below $1.38 per share, in certain types of transactions. The holders are prohibited from converting Series D Preferred Shares into shares of common stock if, as a result of such conversion, such holder, together with its affiliates, would own more than 4.99% of the total number of shares of common stock then issued and outstanding. Each holder has the right to increase its maximum percentage up to 9.99% upon 60 days’ notice to the Company. Additionally, prior to receiving stockholder approval of the issuance of more than 19.9% of the Company’s outstanding common stock prior to the Offering, the holders will be prohibited from converting Series D Preferred Shares into shares of common stock if such conversion would cause the Company to issue pursuant to the terms of the Series D Preferred Stock a number of shares in excess of the maximum number of shares permitted to be issued thereunder without breaching the Company’s obligations under the rules or regulations of Nasdaq.


The Series D Conversion Price is subject to adjustment under certain circumstances in accordance with the Series D Certificate of Designation, including the following:

The conversion price may be proportionately reduced in the event of a subdivision of the Company’s common stock into a greater number of shares or proportionately increased in the event of a combination of the Company’s common stock into a smaller number of shares.

In the event that the Company in any manner issues or sells or enters into any agreement to issue or sell Variable Price Securities (as defined in the Series D Certificate of Designation), which generally includes any common stock, options or convertible securities that are issuable at a price which varies or may vary with the market price of the shares of common stock, including by way of one or more reset(s) to a fixed price, but excluding customary anti-dilution provisions (each of the formulations for such variable price being referred to as, the “Variable Price”), each holder of Series D Preferred Shares will have the right (in its sole discretion) to substitute the Variable Price for the Conversion Price upon conversion of the Series D Preferred Shares. Sales of common stock pursuant to the Company’s At Market Issuance Sales Agreement with B. Riley FBR, Inc. and Oppenheimer & Co., Inc. will be deemed Variable Price Securities with a Variable Price equal to the lowest price per share at which common stock is sold pursuant to that agreement. Under the Series D Certificate of Designation, the term “options” means any rights, warrants or options to subscribe for or purchase shares of common stock or convertible securities, and the term “convertible securities” means any stock or other security (other than options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of common stock.

At any time any Series D Preferred Shares remain outstanding, the Company may reduce the then current conversion price to any amount for any period of time deemed appropriate by the Company’s board of directors.

Conversion Upon a Triggering Event.  Subject to the requirements of Nasdaq Listing Rule 5635(d), and the beneficial ownership limitations provided in the Series D Certificate of Designation, in the event of a triggering event (as defined in the Series D Certificate of Designation and summarized below), the Series D Preferred Shares are convertible into shares of common stock at a conversion price equal to the lower of the Series D Conversion Price in effect on the Trading Day (as such term is defined in the Series D Certificate of Designation) immediately preceding the delivery of the conversion notice and 85% of the lowest volume weighted average price (“VWAP”) of the common stock on any of the five consecutive Trading Days ending on the Trading Day immediately prior to delivery of the applicable conversion notice. This conversion right commences on the date of the triggering event and ends on the later of (i) the date the triggering event is cured and (ii) ten Trading Days after the Company delivers notice of the triggering event.

A triggering event (as defined in the Series D Certificate of Designation) includes, without limitation:

any failure to pay any amounts due to the holders of the Series D Preferred Shares;

the Company’s failure to timely deliver shares;

the suspension of the Company’s common stock from trading or failure to be trading or listed on The Nasdaq Global Market, without obtaining a listing on another national securities exchange, for a period of five consecutive Trading Days;

subject to limited exceptions, the Company’s failure to keep reserved for issuance 150% of the number of shares of common stock issuable upon conversion of the outstanding Series D Preferred Shares;

certain bankruptcy events; and

breaches of certain covenants that are not timely cured, where a cure period is permitted.

Redemption. On December 1, 2018, and on the sixteenth day and first day of each calendar month thereafter until March 1, 2020, subject to extension in certain circumstances (the “Series D Maturity Date”), inclusive, the Company will redeem the stated value of Series D Preferred Stock in thirty-one equal installments of approximately $989,677 (each bimonthly amount, a “Series D Installment Amount” and the date of each such payment, a “Series D Installment


Date”). The holders will have the ability to defer installment payments, but not beyond the Series D Maturity Date. In addition, during each period commencing on the 11th trading day prior to a Series D Installment Date and prior to the immediately subsequent Series D Installment Date, the holders may elect to accelerate the conversion of Series D Preferred Shares at then applicable installment conversion price, provided that the holders may not elect to effect any such acceleration during such installment period if either (a) in the aggregate, all the accelerations in such installment period exceed the sum of three other Series D Installment Amounts, or (b) the number of Series D Preferred Shares subject to prior accelerations exceeds in the aggregate twelve Series D Installment Amounts.

Subject to the requirements of Nasdaq Listing Rule 5635(d) and certain other equity conditions set forth in the Series D Certificate of Designation, the Company may elect to pay the Series D Installment Amounts in cash or shares of common stock or in a combination of cash and shares of common stock.

Series D Installment Amounts paid in shares will be that number of shares of common stock equal to (a) the applicable Series D Installment Amount, to be paid in common stock divided by (b) the lesser of  (i) the then existing conversion price, (ii) 87.5% of the VWAP of the common stock on the Trading Day immediately prior to the applicable Series D Installment Date, and (iii) 87.5% of the arithmetic average of the two lowest VWAPs of the common stock during the ten consecutive Trading Day period ending and including the Trading Day immediately prior to the applicable Series D Installment Date as applicable, provided that the Company meets standard equity conditions. The Company shall make such election no later than the eleventh Trading Day immediately prior to the applicable Series D Installment Date.

If the Company elects or is required to pay a Series D Installment Amount in whole or in part in cash, the amount paid will be equal to 108% of the applicable Series D Installment Amount.

Redemption Upon a Triggering Event.  In the event of a triggering event (as defined in the Series D Certificate of Designation and summarized above), the holders of Series D Preferred Shares may require the Company to redeem such Series D Preferred Shares in cash at a price equal to the greater of  (a) 125% of the stated value of the Series D Preferred Shares being redeemed plus accrued dividends, if any, and (b) the market value of the number of shares issuable on conversion of the Series D Preferred Shares, valued at the greatest closing sales price during the period from the date immediately before the triggering event through the date the Company makes the redemption payment.

Redemption Upon a Change of Control.  In the event of a change of control, as defined in the Series D Certificate of Designation, the holders of Series D Preferred Shares can force redemption at a price equal to the greater of  (a) the conversion amount to be redeemed multiplied by 125%, (b) the product of  (i) the conversion amount being redeemed multiplied by (ii) the quotient determined by dividing (A) the greatest closing sale price of the common stock on any Trading Day during the period commencing immediately preceding the earlier to occur of (1) the consummation of the applicable change of control and (2) the public announcement of such change of control and ending on the date such holder delivers the change of control redemption notice, by (B) the conversion price then in effect and (c) the product of  (i) the conversion amount being redeemed multiplied by (ii) the quotient determined by dividing (A) the aggregate value of the cash and non-cash consideration per share of common stock being paid to holders of common stock in the change of control transaction by (B) the conversion price then in effect. Redemptions of the Series D Preferred Shares required under the Series D Certificate of Designation in connection with a change of control will have priority over payments to all other stockholders of the Company in connection with such change of control.

Dividends.  Each holder of Series D Preferred Shares shall be entitled to receive dividends (a) if no triggering event, as defined in the Series D Certificate of Designation, has occurred and is continuing when and as declared by the Company’s board of directors, in its sole and absolute discretion or (b) if a triggering event has occurred and until such triggering event has been cured, a dividend of 15% per annum based on the holder’s outstanding number of Series D Preferred Shares multiplied by the stated value. The holders of Series D Preferred Shares also have the right to participate in any dividend or other distribution made to holders of common stock to the same extent as if they had converted their Series D Preferred Shares.

Liquidation Preference.  In the event of the liquidation, dissolution, or winding up of the Company, prior to distribution to holders of securities ranking junior to the Series D Preferred Stock, holders of Series D Preferred Shares will be entitled to receive the amount of cash, securities or other property equal to the greater of (a) the stated value thereof on the date of such payment plus accrued dividends, if any and (b) the amount per share such holder would receive if such holder converted such Series D Preferred Shares into common stock immediately prior to the date of such payment.


Ranking. Shares of Series D Preferred Stock rank with respect to dividend rights and rights upon the liquidation, winding up or dissolution of the Company:

senior to shares of the Company’s common stock;

junior to the Company’s debt obligations;

junior to the Company’s outstanding Series B Preferred Stock;

pari passu to the Company’s outstanding Series C Preferred Stock; and

effectively junior to the Company’s subsidiaries’ (i) existing and future liabilities and (ii) capital stock held by others.

Limited Voting Rights.  The holders of Series D Preferred Shares have no voting rights, except as required by law; provided, however, that any amendment to the Company’s certificate of incorporation or bylaws or the Series D Certificate of Designation that adversely affects the powers, preferences and rights of the Series D Preferred Stock requires the approval of the holders of a majority of the Series D Preferred Shares then outstanding.

Participation Rights.  Until August 29, 2019, the holders of the Series D Preferred Shares have the right to receive notice of and to participate in any offering, issuance or sale of equity or equity-equivalent securities by the Company or its subsidiaries, other than issuances under certain employee benefit plans, upon the conversion of certain options or other convertible securities, or pursuant to certain acquisitions or strategic transactions. Pursuant to such participation rights, the Company must offer to issue and sell to such holders at least 35% of the offered securities.

Nasdaq Marketplace Rule 5635(d).  Pursuant to the requirements of Nasdaq Listing Rule 5635(d), the Series D Preferred Shares may not be converted or redeemed by payment of shares of the Company’s common stock if such conversion or redemption would cause the Company to issue a number of shares equal to 20% or more of the Company’s outstanding voting stock as of the date of the issuance of the Series D Preferred Shares, until the Company’s stockholders approve such issuance. The Company has agreed to file a proxy statement with the SEC for the purpose of having the Company’s stockholders vote on a proposal to approve such issuances and further agreed to hold such stockholders’ meeting by no later than April 30, 2019.

Series C Preferred Stock

The Company issued an aggregate of 33,500 shares of its Series C Preferred Stock, $0.01 par value and $1,000 stated value per share, during the fiscal year ended October 31, 2017.  As of October 31, 2018 and 2017, there were 8,992 and 33,300 shares of Series C Preferred Stock issued and outstanding, respectively, with a carrying value of $7.5 million and $27.7 million, respectively.

During the fiscal year ended October 31, 2018, holders of the Series C Preferred Stock converted 24,308 Series C Preferred Shares into common shares through installment conversions resulting in a reduction of $20.2 million to the carrying value being recorded to equity.  Installment conversions occurring prior to August 27, 2018 in which the conversion price was below the initial conversion price of $1.84 per share resulted in a variable number of shares being issued to settle the installment amount and were treated as a partial redemption of the Series C Preferred Shares.  In order to resolve different interpretations of the provisions of the Series C Certificate of Designations that govern adjustments to the conversion price in connection with sales of common stock under the Company’s at-the-market sales plan below the fixed conversion price and whether such sales constitute sales of variable priced securities under the Series C Certificate of Designations, the Company’s board of directors agreed to reduce the conversion price of the Series C Preferred Shares from $1.84 to $1.50 effective August 27, 2018 in exchange for a waiver of certain anti-dilution and price adjustment rights under the Series C Certificate of Designations for future at-the-market sales. Installment conversions occurring between August 27, 2018 and October 31, 2018 in which the installment conversion price was below the adjusted conversion price of $1.50 per share resulted in a variable number of shares being issued to settle the installment amount and were treated as a partial redemption of the Series C Preferred Shares. Installment conversions during the year ended October 31, 2018 that were settled in a variable number of shares and treated as partial redemptions resulted in deemed dividends of $9.6 million.  The deemed dividend represents the difference between the fair value of the common shares issued to settle the installment amounts and the carrying value of the Series C Preferred Shares.


Based on review of pertinent accounting literature including Accounting Standards Codification (“ASC”) 470 – Debt, ASC 480 - Distinguishing Liabilities from Equity and ASC 815 - Derivative and Hedging, the Series C Preferred Shares are classified outside of permanent equity on the Consolidated Balance Sheets and were recorded at fair value on the issuance date (proceeds from the issuance, net of direct issuance cost).  An assessment of the probability of the exercise of the potential redemption features in the Series C Certificate of Designations for the Series C Preferred Stock is performed at each reporting date to determine whether any changes in classification are required.  As of October 31, 2018 and 2017, the Company determined that none of the contingent redemption features were probable.

A summary of certain terms of the Series C Preferred Stock follows.

Conversion Rights. As of October 31, 2018, the Series C Preferred Shares were convertible into shares of common stock subject to the beneficial ownership limitations provided in the Series C Certificate of Designations, at a conversion price equal to $1.50 per share.  The conversion price is subject to adjustment as provided in the Series C Certificate of Designations, including adjustments if the Company sells shares of common stock or equity securities convertible into or exercisable for shares of common stock, at variable prices below the conversion price then in effect.  Subsequent to October 31, 2018, the conversion price has been periodically adjusted in accordance with the terms of the Series C Certificate of Designations and was $0.434 as of January 2, 2019.  In the event of a triggering event, as defined in the Series C Certificate of Designations, the Series C Preferred Shares are convertible into shares of common stock at a conversion price equal to the lower of the conversion price then in effect and 85% of the lowest VWAP of the common stock of the five trading days immediately prior to delivery of the applicable conversion notice.  The holders will be prohibited from converting Series C Preferred Shares into shares of common stock if, as a result of such conversion, such holder, together with its affiliates, would own more than 8.99% of the total number of shares of common stock then issued and outstanding. Each holder has the right to increase its maximum percentage up to 9.99% upon 60 days’ notice to the Company.

Installment Payments. On November 1, 2017 and on the sixteenth day and first day of each calendar month thereafter until March 1, 2019, subject to extension in certain circumstances (the “Series C Maturity Date”), inclusive, the Company will redeem the stated value of Series C Preferred Shares in thirty-three equal installments of approximately $1.0 million (each bimonthly amount, a “Series C Installment Amount” and the date of each such payment, a “Series C Installment Date”). The holders will have the ability to defer installment payments, but not beyond the Series C Maturity Date. In addition, during each period commencing on the 11th trading day prior to a Series C Installment Date and prior to the immediately subsequent Series C Installment Date, the holders may elect to accelerate the conversion of Series C Preferred Shares at the then applicable installment conversion price, provided that the holders may not elect to effect any such acceleration during such installment period if either (a) in the aggregate, all the accelerations in such installment period exceed the sum of three other Series C Installment Amounts, or (b) the number of Series C Preferred Shares subject to prior accelerations exceeds in the aggregate twelve Series C Installment Amounts.

Subject to certain conditions as provided in the Series C Certificate of Designations, the Company may elect to pay the Series C Installment Amounts in cash or shares of common stock or in a combination of cash and shares of common stock.

Series C Installment Amounts paid in shares will be that number of shares of common stock equal to (a) the applicable Series C Installment Amount, to be paid in common stock divided by (b) the least of (i) the then existing conversion price, (ii) 87.5% of the VWAP of the common stock on the trading day immediately prior to the applicable Series C Installment Date, and (iii) 87.5% of the arithmetic average of the two lowest VWAPs of the common stock during the ten consecutive trading day period ending and including the trading day immediately prior to the applicable Series C Installment Date as applicable, provided that the Company meets standard equity conditions. The Company shall make such election no later than the eleventh trading day immediately prior to the applicable Series C Installment Date.

If the Company elects or is required to pay a Series C Installment Amount in whole or in part in cash, the amount paid will be equal to 108% of the applicable Series C Installment Amount.

Dividends. Each holder of the Series C Preferred Shares shall be entitled to receive dividends (a) if no triggering event, as defined in the Series C Certificate of Designations, has occurred and is continuing when and as declared by the Company’s board of directors, in its sole and absolute discretion or (b) if a triggering event has occurred and until


such triggering event has been cured, a dividend of 15% per annum based on the holder’s outstanding number of Series C Preferred Shares multiplied by the stated value.  There were no triggering events or dividends declared in fiscal years 2018 or 2017.

Redemption. In the event of a triggering event, as defined in the Series C Certificate of Designations, the holders of the Series C Preferred Shares can force redemption at a price equal to the greater of (a) the conversion amount to be redeemed multiplied by 125% and (b) the product of (i) the conversion rate with respect to the conversion amount in effect at such time as such holder delivers a triggering event redemption notice multiplied by (ii) the greatest closing sale price of the common stock on any trading day during the period commencing on the date immediately preceding such triggering event and ending on the date the Company makes the entire payment required.

Liquidation. In the event of the Company’s liquidation, dissolution, or winding up, prior to distribution to holders of securities ranking junior to the Series C Preferred Shares, holders of Series C Preferred Shares will be entitled to receive the amount of cash, securities or other property equal to the greater of (a) the stated value thereof on the date of such payment plus accrued dividends, if any and (b) the amount per share such holder would receive if such holder converted such Series C Preferred Shares into common stock immediately prior to the date of such payment.

Ranking and Voting Rights. Shares of Series C Preferred Stock rank with respect to dividend rights and rights upon the Company’s liquidation, winding up or dissolution:

senior to shares of the Company’s common stock;

junior to the Company’s debt obligations;

junior to the Company’s outstanding Series B Preferred Stock;

pari passu to the Company’s outstanding Series D Preferred Stock (which was issued on August 29, 2018); and

effectively junior to the Company’s subsidiaries’ (i) existing and future liabilities and (ii) capital stock held by others.

The holders of the Series C Preferred Shares have no voting rights, except as required by law, provided, however, that any amendment to the Company’s certificate of incorporation or bylaws or the Series C Certificate of Designations that adversely affects the powers, preferences and rights of the Series C Preferred Shares requires the approval of the holders of a majority of the Series C Preferred Shares then outstanding.

Class A Cumulative Redeemable Exchangeable Preferred Shares (the “Series 1 Preferred Shares”)

FCE FuelCell Energy Ltd. (“FCE Ltd.”), one of the Company’s indirect subsidiaries, has 1,000,000 Class A Cumulative Redeemable Exchangeable Preferred Shares (the “Series 1 Preferred Shares”) issued and outstanding, which are held by Enbridge, Inc. ("Enbridge"), which is a related party. The Company has guaranteed the obligations of FCE Ltd. under the Series 1 Preferred Shares.

On March 31, 2011 and April 1, 2011, the Company entered into agreements with Enbridge to modify the provisions of the Series 1 Preferred Shares of FCE Ltd. Enbridge is the sole holder of the Series 1 Preferred Shares. Consistent with the previous Series 1 Preferred Share agreement, FuelCell Energy continues to guarantee the return of principal and dividend obligations of FCE Ltd. to the holders of Series 1 Preferred Shares under the modified agreement.

The terms of the Series 1 Preferred Shares require (i) annual dividend payments of Cdn. $500,000 and (ii) annual return of capital payments of Cdn. $750,000. These payments commenced on March 31, 2011 and will end on December 31, 2020. Dividends accrue at a 1.25% quarterly rate on the unpaid principal balance, and additional dividends will accrue on the cumulative unpaid dividends (inclusive of the Cdn. $12.5 million unpaid dividend balance as of the modification date) at a rate of 1.25% per quarter, compounded quarterly. On December 31, 2020, the amount of all accrued and unpaid dividends on the Series 1 Preferred Shares of Cdn. $21.1 million and the balance of the principal redemption price of Cdn. $4.4 million shall be paid to the holders of the Series 1 Preferred Shares. FCE Ltd. has the option of making dividend payments in the form of common stock or cash under the terms of the Series 1 Preferred Shares.


Because the Series 1 Preferred Shares represent a mandatorily redeemable financial instrument, they are presented as a liability on the Consolidated Balance Sheet.

The Company made its scheduled payments of Cdn. $1.3 million during each of fiscal year 2018, 2017 and 2016.  The Company also recorded interest expense, which reflects the accretion of the fair value discount of approximately Cdn. $2.8 million, Cdn. $2.6 million and Cdn. $2.4 million, respectively.  As of October 31, 2018 and 2017, the carrying value of the Series 1 Preferred Shares was Cdn. $20.9 million ($15.9 million) and Cdn. $19.4 million ($15.1 million), respectively and is classified as preferred stock obligation of subsidiary on the Consolidated Balance Sheets.

In addition to the above, the significant terms of the Series 1 Preferred Shares include the following:

Voting Rights —The holders of the Series 1 Preferred Shares are not entitled to any voting rights.

Dividends — Dividend payments can be made in cash or common stock of the Company, at the option of FCE Ltd., and if common stock is issued it may be unregistered. If FCE Ltd. elects to make such payments by issuing common stock of the Company, the number of common shares is determined by dividing the cash dividend obligation by 95% of the volume average price in U.S. dollars at which board lots of the common shares have been traded on Nasdaq during the 20 consecutive trading days preceding the end of the calendar quarter for which such dividend in common shares is to be paid converted into Canadian dollars using the Bank of Canada’s noon rate of exchange on the day of determination.

Redemption — The Series 1 Preferred Shares are redeemable by FCE Ltd. for Cdn. $25.00 per share less any amounts paid as a return of capital in respect of such share plus all unpaid dividends and accrued interest. Holders of the Series 1 Preferred Shares do not have any mandatory or conditional redemption rights.

Liquidation or Dissolution — In the event of the liquidation or dissolution of FCE Ltd., the holders of Series 1 Preferred Shares will be entitled to receive Cdn. $25.00 per share less any amounts paid as a return of capital in respect of such share plus all unpaid dividends and accrued interest. The Company has guaranteed any liquidation obligations of FCE Ltd.

Exchange Rights — A holder of Series 1 Preferred Shares has the right to exchange such shares for fully paid and non-assessable common stock of the Company at the following exchange prices:

Cdn. $1,664.52 per share of  common stock after July 31, 2015 until July 31, 2020; and

at any time after July 31, 2020, at a price equal to 95% of the then current market price (in Cdn.$) of shares of common stock at the time of conversion.

The exchange rates set forth above shall be adjusted if the Company: (i) subdivides or consolidates the common stock; (ii) pays a stock dividend; (iii) issues rights, options or other convertible securities to the Company's common stockholders enabling them to acquire common stock at a price less than 95% of the then-current price; or (iv) fixes a record date to distribute to the Company's common stockholders shares of any other class of securities, indebtedness or assets.

For example, assuming the holder of the Series 1 Preferred Shares exercises its conversion rights after July 31, 2020 and assuming the common stock price is $0.85 (the common stock closing price on October 31, 2018) and an exchange rate of U.S. $1.00 to Cdn. $1.31 (exchange rate on October 31, 2018) at the time of conversion, the Company would be required to issue approximately 4,192,221 shares of its common stock.

Series B Preferred Stock

The Company has 105,875 shares of Series B Preferred Stock authorized for issuance. As of October 31, 2018 and 2017, there were 64,020 shares of Series B Preferred Stock issued and outstanding. The shares of Series B Preferred Stock and the shares of common stock issuable upon conversion of the shares of Series B Preferred Stock are covered by a registration rights agreement. The following is a summary of certain provisions of the Series B Preferred Stock.


Ranking.  Shares of Series B Preferred Stock rank with respect to dividend rights and rights upon the Company’s liquidation, winding up or dissolution:

senior to shares of the Company’s common stock;

senior to shares of the Company’s Series C Preferred Stock;

senior to shares of the Company’s Series D Preferred Stock;

junior to the Company’s debt obligations; and

effectively junior to the Company’s subsidiaries’ (i) existing and future liabilities and (ii) capital stock held by others.

Dividends.  The Series B Preferred Stock pays cumulative annual dividends of $50.00 per share which are payable quarterly in arrears on February 15, May 15, August 15 and November 15. Dividends accumulate and are cumulative from the date of original issuance. Unpaid accumulated dividends do not bear interest.

The dividend rate is subject to upward adjustment as set forth in the Series B Certificate of Designation if the Company fails to pay, or to set apart funds to pay, any quarterly dividend on the Series B Preferred Stock. The dividend rate is also subject to upward adjustment as set forth in the Registration Rights Agreement entered into with the initial purchasers of the Series B Preferred Stock (the “Registration Rights Agreement”) if the Company fails to satisfy its registration obligations with respect to the Series B Preferred Stock (or the underlying common shares) under the Registration Rights Agreement.

No dividends or other distributions may be paid or set apart for payment on the Company’s common shares (other than a dividend payable solely in shares of a like or junior ranking) unless all accumulated and unpaid Series B Preferred Stock dividends have been paid or funds or shares of common stock have been set aside for payment of accumulated and unpaid Series B Preferred Stock dividends.

The dividend on the Series B Preferred Stock may be paid in cash; or at the option of the holder, in shares of the Company’s common stock, which will be registered pursuant to a registration statement to allow for the immediate sale of these common shares in the public market. Dividends of $3.2 million were paid in cash in each of the years ended October 31, 2018, 2017 and 2016. There were no cumulative unpaid dividends as of October 31, 2018 and 2017.

Liquidation.  The holders of Series B Preferred Stock are entitled to receive, in the event that the Company is liquidated, dissolved or wound up, whether voluntarily or involuntarily, $1,000.00 per share plus all accumulated and unpaid dividends to the date of that liquidation, dissolution, or winding up (“Liquidation Preference”). Until the holders of Series B Preferred Stock receive their Liquidation Preference in full, no payment will be made on any junior shares, including shares of the Company’s common stock. After the Liquidation Preference is paid in full, holders of the Series B Preferred Stock will not be entitled to receive any further distribution of the Company’s assets. As of October 31, 2018 and 2017, the Series B Preferred Stock had a Liquidation Preference of $64.0 million.

Conversion Rights.  Each share of Series B Preferred Stock may be converted at any time, at the option of the holder, into 7.0922 shares of the Company’s common stock, which is equivalent to an initial conversion price of $141.00 per share plus cash in lieu of fractional shares. The conversion rate is subject to adjustment upon the occurrence of certain events, as described in the Series B Certificate of Designation. The conversion rate is not adjusted for accumulated and unpaid dividends. If converted, holders of Series B Preferred Stock do not receive a cash payment for all accumulated and unpaid dividends; rather, all accumulated and unpaid dividends are canceled.

The Company may, at its option, cause shares of Series B Preferred Stock to be automatically converted into that number of shares of common stock that are issuable at the then prevailing conversion rate. The Company may exercise its conversion right only if the closing price of its common stock exceeds 150% of the then prevailing conversion price ($141.00 per share as of October 31, 2018) for 20 trading days during any consecutive 30 trading day period, as described in the Series B Certificate of Designation.


If holders of Series B Preferred Stock elect to convert their shares in connection with certain fundamental changes, as defined in the Series B Certificate of Designation, the Company will in certain circumstances increase the conversion rate by a number of additional shares of common stock upon conversion or, in lieu thereof, the Company may in certain circumstances elect to adjust the conversion rate and related conversion obligation so that shares of Series B Preferred Stock are converted into shares of the acquiring or surviving company, in each case as described in the Series B Certificate of Designation.

The adjustment of the conversion price is to prevent dilution of the interests of the holders of the Series B Preferred Stock from certain dilutive transactions with holders of common stock.

Redemption.  The Company does not have the option to redeem the shares of Series B Preferred Stock. However, holders of the Series B Preferred Stock can require the Company to redeem all or part of their shares at a redemption price equal to the Liquidation Preference of the shares to be redeemed in the case of a “fundamental change” (as described in the Series B Certificate of Designation).  A fundamental change will be deemed to have occurred if any of the following occurs:

any “person” or “group” is or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of all classes of the Company’s capital stock then outstanding and normally entitled to vote in the election of directors;

during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors (together with any new directors whose election by the Company’s board of directors or whose nomination for election by the stockholders was approved by a vote of two-thirds of the Company’s directors then still in office who were either directors at the beginning of such period or whose election of nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office;

the termination of trading of the Company’s common stock on The Nasdaq Stock Market and such shares are not approved for trading or quoted on any other U.S. securities exchange; or

the Company consolidates with or merges with or into another person or another person merges with or into the Company or the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company’s assets and certain of its subsidiaries, taken as a whole, to another person and, in the case of any such merger or consolidation, the Company’s securities that are outstanding immediately prior to such transaction and which represent 100% of the aggregate voting power of the Company’s voting stock are changed into or exchanged for cash, securities or property, unless pursuant to the transaction such securities are changed into securities of the surviving person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the voting stock of the surviving person.

Notwithstanding the foregoing, holders of shares of Series B Preferred Stock will not have the right to require the Company to redeem their shares if:

the last reported sale price of shares of the Company’s common stock for any five trading days within the 10 consecutive trading days ending immediately before the later of the fundamental change or its announcement equaled or exceeded 105% of the conversion price of the shares of Series B Preferred Stock immediately before the fundamental change or announcement;

at least 90% of the consideration (excluding cash payments for fractional shares) and, in respect of dissenters’ appraisal rights, if the transaction constituting the fundamental change consists of shares of capital stock traded on a U.S. national securities exchange, or which will be so traded or quoted when issued or exchanged in connection with a fundamental change, and as a result of the transaction, shares of Series B Preferred Stock become convertible into such publicly traded securities; or

in the case of fundamental change event in the fourth bullet above, the transaction is affected solely to change the Company’s jurisdiction of incorporation.


The Company may, at its option, elect to pay the redemption price in cash or, in shares of the Company’s common stock valued at a discount of 5% from the market price of shares of the Company’s common stock, or any combination thereof. Notwithstanding the foregoing, the Company may only pay such redemption price in shares of the Company’s common stock that are registered under the Securities Act of 1933 and eligible for immediate sale in the public market by non-affiliates of the Company.

Voting Rights.  Holders of Series B Preferred Stock currently have no voting rights; however, holders may receive certain voting rights, as described in the Series B Certificate of Designation, if (1) dividends on any shares of Series B Preferred Stock, or any other class or series of stock ranking on a parity with the Series B Preferred Stock with respect to the payment of dividends, shall be in arrears for dividend periods, whether or not consecutive, for six calendar quarters or (2) the Company fails to pay the redemption price, plus accrued and unpaid dividends, if any, on the redemption date for shares of Series B Preferred Stock following a fundamental change.

So long as any shares of Series B Preferred Stock remain outstanding, the Company will not, without the consent of the holders of at least two-thirds of the shares of Series B Preferred Stock outstanding at the time (voting separately as a class with all other series of preferred stock, if any, on parity with the Series B Preferred Stock upon which like voting rights have been conferred and are exercisable) issue or increase the authorized amount of any class or series of shares ranking senior to the outstanding shares of the Series B Preferred Stock as to dividends or upon liquidation. In addition, the Company will not, subject to certain conditions, amend, alter or repeal provisions of the Company’s certificate of incorporation, including the Series B Certificate of Designation relating to the Series B Preferred Stock, whether by merger, consolidation or otherwise, so as to adversely amend, alter or affect any power, preference or special right of the outstanding shares of Series B Preferred Stock or the holders thereof without the affirmative vote of not less than two-thirds of the issued and outstanding Series B Preferred Stock shares.

Equity Compensation Plan Information

See Part III, Item 12 for information regarding securities authorized for issuance under our equity compensation plans.

Stock Repurchases

The following table sets forth information with respect to purchases

There were no repurchases made by us or on our behalf of our common stock during the periods indicated:fourth quarter of the fiscal year ended October 31, 2019.

 

Period

 

Total

Number of

Shares

Purchased (1)

 

 

Average

Price Paid

per Share

 

 

Total Number

of Shares

Purchased as

Part of

Publicly

Announced

Programs

 

 

Maximum

Number of

Shares that

May Yet be

Purchased

Under the

Plans or

Programs

 

August 1 – August 31

 

 

1,929

 

 

$

1.20

 

 

 

 

 

 

 

September 1 – September 30

 

 

 

 

 

 

 

 

 

 

 

 

October 1 – October 31

 

 

419

 

 

$

1.09

 

 

 

 

 

 

 

Total

 

 

2,348

 

 

$

1.18

 

 

 

 

 

 

 

(1)

Includes only shares that were surrendered by employees to satisfy statutory tax withholding obligations in connection with the vesting of stock-based compensation awards.


Item 6.

SELECTEDSELECTED FINANCIAL DATA

The selected consolidated financial data presented below as of the end of each of the years in the five-year period ended October 31, 20182019 have been derived from our audited consolidated financial statements together with the notes thereto. We have no discontinued operations. The data set forth below is qualified by reference to, and should be read in conjunction with our consolidated financial statements and their notes and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” included elsewhere in this Annual Report on Form 10-K.


Consolidated Statement of Operations Data:

(Amounts presented in thousands, except for per share amounts)

 

 

2018

 

 

2017

 

 

2016

 

 

2015

 

 

2014

 

 

2019

 

 

2018

 

 

2017

 

 

2016

 

 

2015

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues (1):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Product

 

$

52,490

 

 

$

43,047

 

 

$

62,563

 

 

$

128,595

 

 

$

136,842

 

 

$

481

 

 

$

52,490

 

 

$

43,047

 

 

$

62,563

 

 

$

128,595

 

Service and license

 

 

15,757

 

 

 

27,050

 

 

 

31,491

 

 

 

21,012

 

 

 

25,956

 

 

 

26,618

 

 

 

15,757

 

 

 

27,050

 

 

 

31,491

 

 

 

21,012

 

Generation

 

 

7,171

 

 

 

7,233

 

 

 

1,267

 

 

 

 

 

 

 

 

 

14,034

 

 

 

7,171

 

 

 

7,233

 

 

 

1,267

 

 

 

 

Advanced Technologies

 

 

14,019

 

 

 

18,336

 

 

 

12,931

 

 

 

13,470

 

 

 

17,495

 

 

 

19,619

 

 

 

14,019

 

 

 

18,336

 

 

 

12,931

 

 

 

13,470

 

Total revenues

 

 

89,437

 

 

 

95,666

 

 

 

108,252

 

 

 

163,077

 

 

 

180,293

 

 

 

60,752

 

 

 

89,437

 

 

 

95,666

 

 

 

108,252

 

 

 

163,077

 

Cost of revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Product

 

 

54,504

 

 

 

49,843

 

 

 

63,474

 

 

 

118,530

 

 

 

126,866

 

 

 

18,552

 

 

 

54,504

 

 

 

49,843

 

 

 

63,474

 

 

 

118,530

 

Service and license

 

 

15,059

 

 

 

25,285

 

 

 

32,592

 

 

 

18,301

 

 

 

23,037

 

 

 

18,943

 

 

 

15,059

 

 

 

25,285

 

 

 

32,592

 

 

 

18,301

 

Generation

 

 

6,421

 

 

 

5,076

 

 

 

664

 

 

 

 

 

 

 

 

 

31,642

 

 

 

6,421

 

 

 

5,076

 

 

 

664

 

 

 

 

Advanced Technologies

 

 

10,360

 

 

 

12,728

 

 

 

11,879

 

 

 

13,470

 

 

 

16,664

 

 

 

12,884

 

 

 

10,360

 

 

 

12,728

 

 

 

11,879

 

 

 

13,470

 

Total cost of revenues

 

 

86,344

 

 

 

92,932

 

 

 

108,609

 

 

 

150,301

 

 

 

166,567

 

 

 

82,021

 

 

 

86,344

 

 

 

92,932

 

 

 

108,609

 

 

 

150,301

 

Gross profit (loss)

 

 

3,093

 

 

 

2,734

 

 

 

(357

)

 

 

12,776

 

 

 

13,726

 

Gross (loss) profit

 

 

(21,269

)

 

 

3,093

 

 

 

2,734

 

 

 

(357

)

 

 

12,776

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Administrative and selling expenses

 

 

24,908

 

 

 

25,916

 

 

 

25,150

 

 

 

24,226

 

 

 

22,797

 

 

 

31,874

 

 

 

24,908

 

 

 

25,916

 

 

 

25,150

 

 

 

24,226

 

Research and development costs

 

 

22,817

 

 

 

20,398

 

 

 

20,846

 

 

 

17,442

 

 

 

18,240

 

 

 

13,786

 

 

 

22,817

 

 

 

20,398

 

 

 

20,846

 

 

 

17,442

 

Restructuring expense

 

 

 

 

 

1,355

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1,355

 

 

 

 

 

 

 

Total costs and expenses

 

 

47,725

 

 

 

47,669

 

 

 

45,996

 

 

 

41,668

 

 

 

41,037

 

 

 

45,660

 

 

 

47,725

 

 

 

47,669

 

 

 

45,996

 

 

 

41,668

 

Loss from operations

 

 

(44,632

)

 

 

(44,935

)

 

 

(46,353

)

 

 

(28,892

)

 

 

(27,311

)

 

 

(66,929

)

 

 

(44,632

)

 

 

(44,935

)

 

 

(46,353

)

 

 

(28,892

)

Interest expense

 

 

(9,055

)

 

 

(9,171

)

 

 

(4,958

)

 

 

(2,960

)

 

 

(3,561

)

 

 

(10,623

)

 

 

(9,055

)

 

 

(9,171

)

 

 

(4,958

)

 

 

(2,960

)

Other income (expense), net

 

 

3,338

 

 

 

247

 

 

 

622

 

 

 

2,442

 

 

 

(7,523

)

Benefit (provision) for income tax

 

 

3,015

 

 

 

(44

)

 

 

(519

)

 

 

(274

)

 

 

(488

)

Other income, net

 

 

93

 

 

 

3,338

 

 

 

247

 

 

 

622

 

 

 

2,442

 

(Provision) benefit for income tax

 

 

(109

)

 

 

3,015

 

 

 

(44

)

 

 

(519

)

 

 

(274

)

Net loss

 

 

(47,334

)

 

 

(53,903

)

 

 

(51,208

)

 

 

(29,684

)

 

 

(38,883

)

 

 

(77,568

)

 

 

(47,334

)

 

 

(53,903

)

 

 

(51,208

)

 

 

(29,684

)

Net loss attributable to noncontrolling interest

 

 

 

 

 

 

 

 

251

 

 

 

325

 

 

 

758

 

 

 

 

 

 

 

 

 

 

 

 

251

 

 

 

325

 

Net loss attributable to FuelCell Energy, Inc.

 

 

(47,334

)

 

 

(53,903

)

 

 

(50,957

)

 

 

(29,359

)

 

 

(38,125

)

 

 

(77,568

)

 

 

(47,334

)

 

 

(53,903

)

 

 

(50,957

)

 

 

(29,359

)

Series D Preferred stock redemption accretion

 

 

(2,075

)

 

 

 

 

 

 

 

 

 

 

 

 

Series C Preferred stock deemed dividends

 

 

(9,559

)

 

 

 

 

 

 

 

 

 

 

 

 

Series A warrant exchange

 

 

(3,169

)

 

 

 

 

 

 

 

 

 

 

 

 

Series B Preferred stock dividends

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,231

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

Net loss to common stockholders

 

$

(62,168

)

 

$

(57,103

)

 

$

(54,157

)

 

$

(32,559

)

 

$

(41,325

)

Net loss to common stockholders

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Series C Preferred stock deemed dividends and redemption value adjustment, net

 

 

(6,522

)

 

 

(9,559

)

 

 

 

 

 

 

 

 

 

Series D Preferred deemed dividends and redemption accretion

 

 

(9,755

)

 

 

(2,075

)

 

 

 

 

 

 

 

 

 

Net loss attributable to common stockholders

 

$

(100,245

)

 

$

(62,168

)

 

$

(57,103

)

 

$

(54,157

)

 

$

(32,559

)

Net loss attributable to common stockholders

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.75

)

 

$

(1.14

)

 

$

(1.82

)

 

$

(1.33

)

 

$

(2.02

)

 

$

(1.82

)

 

$

(9.01

)

 

$

(13.73

)

 

$

(21.83

)

 

$

(15.94

)

Diluted

 

$

(0.75

)

 

$

(1.14

)

 

$

(1.82

)

 

$

(1.33

)

 

$

(2.02

)

 

$

(1.82

)

 

$

(9.01

)

 

$

(13.73

)

 

$

(21.83

)

 

$

(15.94

)

Weighted average shares outstanding

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

82,754

 

 

 

49,915

 

 

 

29,774

 

 

 

24,514

 

 

 

20,474

 

 

 

55,081

 

 

 

6,896

 

 

 

4,160

 

 

 

2,481

 

 

 

2,043

 

Diluted

 

 

82,754

 

 

 

49,915

 

 

 

29,774

 

 

 

24,514

 

 

 

20,474

 

 

 

55,081

 

 

 

6,896

 

 

 

4,160

 

 

 

2,481

 

 

 

2,043

 

 


Consolidated Balance Sheet Data:

(Amounts presented in thousands, except for per share amounts)

 

 

2018

 

 

2017

 

 

2016

 

 

2015

 

 

2014

 

 

2019

 

 

2018

 

 

2017

 

 

2016

 

 

2015

 

Cash and cash equivalents (1)(2)

 

$

80,239

 

 

$

87,448

 

 

$

118,316

 

 

$

85,740

 

 

$

108,833

 

 

$

39,778

 

 

$

80,239

 

 

$

87,448

 

 

$

118,316

 

 

$

85,740

 

Working capital

 

 

70,182

 

 

 

105,432

 

 

 

150,206

 

 

 

129,010

 

 

 

141,970

 

 

 

23,087

 

 

 

70,182

 

 

 

105,432

 

 

 

150,206

 

 

 

129,010

 

Total current assets

 

 

130,303

 

 

 

203,510

 

 

 

202,204

 

 

 

203,898

 

 

 

217,031

 

 

 

84,319

 

 

 

130,303

 

 

 

203,510

 

 

 

202,204

 

 

 

203,898

 

Total assets

 

 

340,421

 

 

 

383,786

 

 

 

340,729

 

 

 

277,231

 

 

 

280,636

 

 

 

333,446

 

 

 

340,421

 

 

 

383,786

 

 

 

340,729

 

 

 

277,231

 

Total current liabilities

 

 

60,121

 

 

 

98,078

 

 

 

51,998

 

 

 

74,888

 

 

 

75,061

 

 

 

62,732

 

 

 

60,121

 

 

 

98,078

 

 

 

51,998

 

 

 

74,888

 

Total non-current liabilities

 

 

103,377

 

 

 

96,895

 

 

 

114,478

 

 

 

47,732

 

 

 

47,269

 

 

 

135,120

 

 

 

103,377

 

 

 

96,895

 

 

 

114,478

 

 

 

47,732

 

Redeemable preferred stock

 

 

94,729

 

 

 

87,557

 

 

 

59,857

 

 

 

59,857

 

 

 

59,857

 

 

 

59,857

 

 

 

94,729

 

 

 

87,557

 

 

 

59,857

 

 

 

59,857

 

Total equity

 

 

82,194

 

 

 

101,256

 

 

 

114,396

 

 

 

94,754

 

 

 

98,449

 

 

 

75,737

 

 

 

82,194

 

 

 

101,256

 

 

 

114,396

 

 

 

94,754

 

Book value per share (2)(3)

 

$

0.86

 

 

$

1.46

 

 

$

3.25

 

 

$

3.65

 

 

$

4.11

 

 

$

0.39

 

 

$

10.31

 

 

$

17.48

 

 

$

39.03

 

 

$

43.79

 

(1)

Revenues for the fiscal year ended October 31, 2019 reflect the adoption of Accounting Standards Update (ASU) No. 2014-09, “Revenue from Contracts with Customers (Topic 606)”.  The Company adopted this ASU on November 1, 2018 using the modified retrospective transition method.

(1)(2)

Includes short-term and long-term restricted cash and cash equivalents.

(2)(3)

Calculated as total equity divided by common shares issued and outstanding as of the balance sheet date.date (after giving effect to the May 8, 2019 1-for-12 reverse stock split).


Item 7.

MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

The following discussion should be read in conjunction with information included in Item 8 of this report. Unless otherwise indicated, the terms “Company”, “FuelCell Energy”, “we”, “us”, and “our” refer to FuelCell Energy, Inc. and its subsidiaries. All tabular dollar amounts are in thousands.

In addition to historical information, this discussion and analysis contains forward-looking statements. All forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected.  Please see “Forward-Looking Statement Disclaimer” for a discussion of the uncertainties, risks and assumptions associated with these statements, as well as other risks set forth in our filings with the SEC including those set forth under Item 1A — Risk Factors in this report.

Overview

FuelCell Energy was founded more than 50 years ago in 1969. We began selling stationary fuel cell power plants commercially in 2003. With more than 9.5 million megawatt hours of clean electricity produced, FuelCell Energy is developingnow a global leader in delivering environmentally-responsible distributed baseload power solutions through our proprietary, molten-carbonate fuel cell technology. Today, we develop turn-key distributed power generation solutions and delivering efficient, affordableoperate and cleanprovide comprehensive service for the life of the power plant. We are working to expand the proprietary technologies that we have developed over the past five decades into new products, markets and geographies.

Fiscal year 2019 was one of transformation for FuelCell Energy. We restructured our management team and our operations in ways that are intended to support our growth and achieve our profitability and sustainability goals. We raised capital under our at-the-market sales plan, which allowed us to pay down our accounts payable and stay current on our forbearance agreements.  We repaid a substantial portion of our short-term debt, retired our Series C and Series D Convertible Preferred Stock obligations, and refocused on our core competencies in an effort to drive top-line revenue. We believe we have emerged from a difficult fiscal 2019 as a stronger company, better positioned to execute on our business plan. Our recent achievements, accomplished during one of the most stressful times in the Company’s history, include: (a) closing on a new $200 million credit facility with Orion Energy Partners, (b) executing a new Joint Development Agreement with EMRE, with anticipated revenues of up to $60 million, (c) restructuring our business to realize annualized operating savings of approximately $15 million, (d) making progress in constructing certain projects in our backlog, including the CMEEC project at the U.S. Navy base in Groton, Connecticut and the commissioning and startup of the 2.8 MW Tulare BioMAT project in California, (e) relaunching our sub-megawatt product in Europe, (f) executing a strategic relationship with E.On Business Solutions, an affiliate of one of the largest utilities in the world, to market and distribute our products beyond the two FuelCell operating plants E.On already owns, (g) extending the maturity of our Series 1 Preferred Shares issued by FCE FuelCell Energy Ltd. by one year, and (h) concluding our engagement with Huron Consulting after successful restructuring and payoff of our prior senior secured credit facility.

We will use this new focus coming out of our restructuring to advance our core goals of:

Executing on our backlog and new project awards;

Growing our generation portfolio;

Competing for and winning new business around the world; and

Developing and commercializing our Advanced Technologies platform of products.

Our mission and purpose remains to utilize our proprietary, state-of-the-art fuel cell power plants to reduce the global environmental footprint of baseload power generation by providing environmentally responsible solutions for reliable electrical power, hot water, steam, chilling, hydrogen, microgrid applications, and carbon capture and, in so doing, drive demand for our products and services, thus realizing positive stockholder returns.



Recent Developments

The events described in this “Recent Developments” section relate, in part, to matters discussed in more detail below in this “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section – particularly those matters discussed under “Liquidity and Capital Resources.”  In certain instances, the supply, recoverycapitalized terms used in this “Recent Developments” section are defined elsewhere in this Annual Report on Form 10-K.

ExxonMobil Research and storage of energy.  We design, manufacture, undertake projectEngineering Company Joint Development Agreement

On November 5, 2019, the Company signed a two-year Joint Development Agreement (“JDA”) with EMRE, pursuant to which the Company will continue exclusive research and development of, install, operateefforts with EMRE to evaluate and maintain megawatt-scaledevelop new and/or improved carbonate fuel cell systems, serving utilities andcells to reduce carbon dioxide emissions from industrial and large municipal power userssources, in exchange for (a) payment of (i) an exclusivity and technology access fee of $5.0 million, (ii) up to $45.0 million for research and development efforts, and (iii) milestone-based payments of up to $10.0 million after certain technological milestones are met, and (b) certain licenses to patents and patent applications, and copyrightable works resulting from the JDA.  

Orion Credit Agreement

As described below and in Note 13. “Debt”, on October 31, 2019, the Company and certain of its subsidiaries as guarantors entered into the Orion Credit Agreement with solutionsthe Agent and certain of its affiliates as lenders for a $200.0 million senior secured credit facility, structured as a delayed draw term loan, to be provided by the lenders.  On November 22, 2019, the Company made a second draw under the Orion Credit Agreement (the “Second Funding”) of $65.5 million, which was funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Co-Invest, L.P. (the “Orion Lenders”), such that include both utility-scalethe total fundings to the Company under the Orion Facility were equal to $80.0 million.  The funds drawn in the Second Funding were reduced by a Loan Discount (described further below and on-site power generation,in Note 13. “Debt”) of $1.6 million, which was retained by the Orion Lenders.  Proceeds from the Second Funding were used to repay outstanding third party debt of the Company with respect to certain other Company projects, including the construction loan from Fifth Third Bank on the Groton Project and the loan from Webster Bank on the CCSU Project, as well as advancing developmentto fund remaining going forward construction costs relating to certain projects, including  the Groton Project (a 7.4 MW project), the LIPA Yaphank Solid Waste Management Project (a 7.4 MW project), and the Tulare BioMAT project (a 2.8 MW project).

In accordance with the Orion Credit Agreement in connection with the Second Funding, on November 22, 2019, the Company issued to the Orion Lenders warrants to purchase up to a total of solutions for carbon capture, local hydrogen production for transportation and industrial users, and long duration energy storage.  Our plants are operating in more than 50 locations on three continents and have generated more than14.0 million shares of the Company’s common stock (the “Second Funding Warrants”), with an initial exercise price with respect to 8.0 million megawatt hours (MWh) of electricity.such shares of $0.242 per share and with an initial exercise price with respect to 6.0 million of such shares of $0.620 per share (such $0.620 per share exercise price being at a premium to the market price at the time of entry into the Orion Credit Agreement).

We

In conjunction with the Second Funding, the Company and the other loan parties entered into the First Amendment to the Orion Credit Agreement (the “First Orion Amendment”), which required the Company to establish a $5.0 million debt reserve, with such reserve to be released on the first date following the date of the Second Funding on which all of the following events shall have occurred: (a) each of (x) the commercial operation date for the Tulare BioMAT project shall have occurred and (y) a disposition, refinancing or tax equity investment in the Tulare BioMAT project of at least $5 million is consummated; (b) each of (x) the Groton Project shall have achieved its business plan in accordance with the Groton Construction Budget (as defined in the Orion Credit Agreement), (y) the commercial operation date for the Groton Project (as defined below) shall have occurred and (z) the Groton Project shall have met its annualized output and heat rate guarantees for three months; and (c) a disposition, refinancing or tax equity investment of at least $30 million shall have occurred with respect to the Groton Project.  The First Orion Amendment further requires the Company (i) to provide, comprehensive turn-key power generation solutionsno later than December 31, 2019 (or such later date as the Agent may, in its sole discretion, agree in writing), a biogas sale and purchase agreement through December 31, 2021 for the Tulare BioMAT project, which was obtained as of such date, (ii) to our customers, including power plantobtain by December 31, 2019 (or such later date as the Agent may, in its sole discretion, agree in writing) a fully executed contract for certain renewable energy credits for the Groton Project, which was obtained as of such date, and (iii) to provide by January 31, 2020 (or such later date as the Agent may, in its sole discretion, agree in writing) certain consents and estoppels from CMEEC related to the Groton Project and an executed, seventh modification to the lease between CMEEC and the United States Government, acting by and through the Department of the Navy. The First Orion Amendment provides that, if the


requirements set forth in clauses (ii) and (ii) above are not timely satisfied, the Company will grant the Agent, on behalf of the Orion Lenders, a security interest and lien on all of the Company’s intellectual property, with such lien and security interest to be released at such time as the Company has satisfied such requirements.

In addition, in connection with the January 2020 Letter Agreement among the Company, FCE Ltd. and Enbridge described below, on January 20, 2020, in order to obtain the Orion Lenders’ consent to the January 2020 Letter Agreement as required under the Orion Credit Agreement, the Company and the other loan parties entered into the Second Amendment to the Orion Credit Agreement (the “Second Orion Amendment”), which adds a new affirmative covenant to the Orion Credit Agreement that obligates the Company to, and to cause FCE Ltd. to, on or prior to November 1, 2021, either (i) pay and satisfy in full all of their respective obligations in respect of, and fully redeem and cancel, all of the Series 1 Preferred Shares of FCE Ltd., or (ii) deposit in a newly created account of FCE Ltd. or the Company cash in an amount sufficient to pay and satisfy in full all of their respective obligations in respect of, and to effect a redemption and cancellation in full of, all of the Series 1 Preferred Shares of FCE Ltd. The Second Orion Amendment also provides that the articles of FCE Ltd. setting forth the modified terms of the Series 1 Preferred Shares will be considered a “Material Agreement” under the Orion Credit Agreement. Under the Second Orion Amendment, a failure to satisfy this new affirmative covenant or to otherwise comply with the terms of the Series 1 Preferred Shares will constitute an event of default under the Orion Credit Agreement, which could result in the acceleration of any amounts outstanding under the Orion Credit Agreement.

Cashless Exercise of Certain Orion Warrants

On January 9, 2020, the Orion Lenders exercised, on a cashless basis, Orion Warrants (as defined below) (with cash exercise prices of $0.310 per share and $ 0.242 per share) representing the right to purchase, in the aggregate, 12.0 million shares of the Company’s common stock.  Because these warrants were exercised on a cashless basis pursuant to the formula set forth in the warrants, the Orion Lenders received, in the aggregate, a “net number” of 9,396,319 shares of the Company’s common stock upon the exercise of Initial Funding Warrants (as defined below) representing the right to purchase 6.0 million shares of the Company’s common stock and Second Funding Warrants representing the right to purchase 6.0 million shares of the Company’s common stock. The other 2,603,681 shares, which were not issued to the Orion Lenders due to the cashless nature of the exercise, are no longer required to be reserved for issuance upon exercise of the Orion Warrants.

Termination of Construction Loan Agreement with Fifth Third Bank

As described below and in Note 13. “Debt”, on February 28, 2019, the Company, through its indirect wholly-owned subsidiary, Groton Station Fuel Cell, LLC (“Groton Borrower”), entered into a Construction Loan Agreement (as amended from time to time, the “Groton Agreement”) with Fifth Third Bank pursuant to which Fifth Third Bank agreed to make available to Groton Borrower a construction loan facility in an aggregate principal amount of up to $23.0 million (the “Groton Facility”) to fund the manufacture, construction, installation, operationscommissioning and maintenance under multi-year power purchase and service agreements.start-up of the 7.4 MW We both develop projects as well as sell equipment directly to customers, providing either a complete solution of engineering, installing and servicing the fuel cell power plant or sellingfor the power plant equipment and providing long-term maintenance only.  We offer to arrange financing structures that enable power users to benefit from the multitude of advantages of clean onsite power while avoiding an up-front capital investment. Utilizing long-term power purchase agreements (“PPAs”) or lease structures, the end-user of the power hosts the installation and only pays for power as it is delivered. For projects that we develop, the end user of the power typically enters into a PPA, and we have the option to either identify a project investor to purchase the power plant and assume the PPA, or retain the project and recognize electricity revenue ratably over the term of the PPA. We target large-scale power users with our megawatt-class installations.  To provide a frame of reference, one megawatt is adequate to continually power approximately 1,000 average sized U.S. homes.  Our customer base includes utility companies, municipalities, universities, hospitals, government entities and a variety of industrial and commercial enterprises. Our leading geographic markets areCMEEC at the United States Navy submarine base in Groton, Connecticut (the “Groton Project”).  Groton Borrower made an initial draw under the Groton Facility on the date of closing of the facility of $9.7 million and South Korea,made an additional draw of $1.4 million in April 2019.  The total outstanding balance under the Groton Facility as of November 22, 2019 (prior to the payment described below) was $11.1 million.  Groton Borrower and we are pursuing expanding opportunitiesFifth Third Bank entered into a payoff letter, dated November 22, 2019, pursuant to which, on November 22, 2019, the Agent, on behalf of Groton Borrower, paid off all of Groton Borrower’s indebtedness to Fifth Third Bank under the Groton Agreement and thereby terminated the Groton Facility.

Termination of Term Loan Agreements with Webster Bank

On November 22, 2019, the Webster Bank debt was repaid in other countries aroundfull and the world.borrowing arrangement was terminated.


 

Our value propositionConnecticut Green Bank Loan

As described below and in Note 13. “Debt”, the Company had a long-term loan agreement with the Connecticut Green Bank (as amended from time to time, the “Green Bank Loan Agreement”) for a loan totaling approximately $5.9 million in support of the 14.9 MW fuel cell park in Bridgeport, Connecticut (the “Bridgeport Fuel Cell Project”).  On and effective as of December 19, 2019, the Company and Connecticut Green Bank entered into an amendment to the Green Bank Loan Agreement (the “Green Bank Amendment”). Upon the execution of the Green Bank Amendment on December 19, 2019, Connecticut Green Bank made an additional loan to the Company in the aggregate principal amount of $3.0 million (the “December 2019 Loan”), which is to enable economic returnsbe used (i) first, to pay closing fees related to the acquisition of the Bridgeport Fuel Cell Project and the Subordinated Credit Agreement (as defined below), other fees, and accrued interest from May 9, 2019, totaling $404,000 (“Accrued Fees”), and (ii) thereafter, for general corporate purposes as determined by the Company, including, but not limited to, expenditures in connection with clean, affordable, reliablethe project being constructed by Groton Station Fuel Cell, LLC (“Groton Fuel Cell”). Pursuant to the terms of the Green Bank Amendment, Connecticut Green Bank will have no further obligation to make loans under the Green Bank Loan Agreement and resilient fuel cell power plantsthe Company will have no right to make additional draws under the Green Bank Loan Agreement.

The Green Bank Amendment provides that, supply power where consumed. Our products can also be configured for carbon capture, energy recovery and storage applications. Our solutions are easy-to-site in populated areas as they are clean, operate quietly and without vibrations, and have only modest space requirements.  Fuel cells use an electrochemical process to convert a fuel source into electricity and heat in a highly efficient process that emits virtually no pollutantsuntil such time as the fuel is not burned, generating power that is almost wholly absentloan (which includes both the outstanding principal balance of criteria pollutants such as NOx that causes smog, SOx that contributes to acid rain,the original loan under the Green Bank Loan Agreement and particulate matter that can aggravate asthma.  Locating power generation near the pointoutstanding principal amount of use reduces reliancethe December 2019 Loan) has been repaid in its entirety, interest on the transmission grid, leadingoutstanding balance of the loan shall accrue monthly in arrears from the date of the Green Bank Amendment at a rate of 5% per annum until May 8, 2019 and at a rate of 8% per annum thereafter, payable by the Company on a monthly basis in arrears. The Green Bank Amendment further provides that the payment by the Company of the Accrued Fees (as described above) includes any shortfall of interest due but unpaid by the Company through and including November 30, 2019. Interest payments made by the Company after the date of the Green Bank Amendment are to enhanced energy securitybe applied first to interest that has accrued on the outstanding principal balance of the original loan under the Green Bank Loan Agreement and power reliability.  Utilities can minimize or even avoidthen to interest that has accrued on the costDecember 2019 Loan.

The Green Bank Amendment also modifies the repayment and mandatory prepayment terms and extends the maturity date set forth in the original Green Bank Loan Agreement. Under the Green Bank Amendment, to the extent that excess cash flow reserve funds under the BFC Credit Agreement (as defined below) are eligible for disbursement to Bridgeport Fuel Cell, LLC pursuant to Section 6.23(c) of transmission orthe BFC Credit Agreement, such funds are to be paid to Connecticut Green Bank, to be applied first to repay the outstanding principal balance of the original loan under the Green Bank Loan Agreement and thereafter to repay the outstanding principal amount of the December 2019 Loan, until repaid in full. The Green Bank Amendment further provides that the entire unpaid balance of the loan and all other infrastructureobligations due under the Green Bank Loan Agreement will be due and payable on May 9, 2026 if not paid sooner in accordance with the Green Bank Loan Agreement. Finally, with respect to mandatory prepayments, the Green Bank Amendment provides that, when the Company has closed on the subordinated project term loan pursuant to the Commitment Letter, dated February 6, 2019, issued by adopting distributed generation, which saves their customersConnecticut Green Bank to Groton Fuel Cell to provide a subordinated project term loan to Groton Fuel Cell in the costamount of installing$5.0 million (the “Groton Commitment Letter”), the Company will be required prepay to Connecticut Green Bank the lesser of any then outstanding amount of the December 2019 Loan and maintaining transmission and also avoids the losses associated with transmitting electricity over great distances.  Our power plants provide electricity priced competitively to grid-delivered electricity in certain high cost regions, and our strategy is to continue to reduce costs, which we believe will lead to wider adoption.amount of the subordinated project term loan actually advanced by Connecticut Green Bank.



Series B Preferred Stock Dividend

On October 30, 2019, the Company declared dividends on the Series B Preferred Stock, which included the accrued dividends payable under the Amended Certificate of Designation for the Series B Preferred Stock with respect to the May 15, 2019 and August 15, 2019 dividend payment dates and the dividends payable with respect to the November 15, 2019 dividend payment date, which were paid on or about November 15, 2019.  The aggregate dividend payment was $2.4 million.

Series 1 Preferred Stock Return of Capital and Dividend Payment

On November 26, 2019, the Company made the return of capital and dividend payments due as of March 31, 2019, June 30, 2019 and September 30, 2019, in an aggregate amount equal to Cdn. $0.9 million, on the Series 1 Preferred Stock.

Series 1 Preferred Stock – Letter Agreement

As described in Note 15. “Redeemable Preferred Stock,” as of October 31, 2019, FCE Ltd. or the Company, as the guarantor of FCE Ltd.’s payment obligations with respect to the Series 1 Preferred Shares, was obligated to pay, on or before December 31, 2020, all accrued and unpaid dividends on the Series 1 Preferred Shares and the balance of the principal redemption price with respect to all of the Series 1 Preferred Shares. As of October 31, 2019, the aggregate amount of all accrued and unpaid dividends to be paid on the Series 1 Preferred Shares on December 31, 2020 was expected to be Cdn. $21.1 million and the balance of the principal redemption price to be paid on December 31, 2020 with respect to all of the Series 1 Preferred Shares was expected to be Cdn. $4.4 million. Interest under the Series 1 Preferred Shares accrued at annual rate of 5%. In addition, the holder of the Series 1 Preferred Shares had the right to exchange such shares for fully paid and non-assessable shares of common stock of the Company at certain specified prices, and FCE Ltd. had the option of making dividend payments in the form of common stock of the Company or cash.

On January 20, 2020, the Company, FCE Ltd. and Enbridge entered into a letter agreement (the “January 2020 Letter Agreement”), pursuant to which they agreed to amend the articles of FCE Ltd. relating to and setting forth the terms of the Series 1 Preferred Shares to: (i) remove the provisions of the articles permitting or requiring the issuance of shares of the Company’s common stock in exchange for the Series 1 Preferred Shares or as payment of amounts due to the holders of the Series 1 Preferred Shares, (ii) remove certain provisions of the articles relating to the redemption of the Series 1 Preferred Shares, (iii) increase the annual dividend rate, commencing on January 1, 2020, to 15%, (iv) extend the final payment date for all accrued and unpaid dividends and all return of capital payments (i.e., payments of the principal redemption price) from December 31, 2020 to December 31, 2021, (v) clarify when dividend and return of capital payments are to be made in the future and extend the quarterly dividend and return of capital payments through December 31, 2021 (which were previously to be paid each quarter through December 31, 2020), (vi) remove certain terms and provisions of the articles that are no longer applicable, and (vii) make other conforming changes to the articles.  In addition, the parties agreed to amend the Company’s guarantee in favor of Enbridge as necessary or as the parties may mutually agree, in either case, in order to be consistent with such amended articles and to maintain the Company’s guarantee of FCE Ltd.’s obligations under the Series 1 Preferred Shares.

After taking into account the amendments to the terms of the Series 1 Preferred Shares described in the January 2020 Letter Agreement, the aggregate amount of all accrued and unpaid dividends to be paid on the Series 1 Preferred Shares on December 31, 2021 is expected to be Cdn. $26.5 million and the balance of the principal redemption price to be paid on December 31, 2021 with respect to all of the Series 1 Preferred Shares is expected to be Cdn. $3.5 million.

Sales of Common Stock under At Market Issuance Sales Agreement

During the period beginning on November 7, 2019 and ending on (and including) November 11, 2019, the Company issued and sold a total of approximately 7.9 million shares of its common stock under its At Market Issuance Sales Agreement, dated October 4, 2019 (the “Sales Agreement”), with B. Riley FBR, Inc. (the “Sales Agent”), at prevailing market prices, with an average sale price of $0.46 per share, and raised aggregate gross proceeds of approximately


$3.6 million, before deducting expenses and commissions.  Commissions of $0.1 million were paid to the Sales Agent in connection with these sales, resulting in net proceeds to the Company of approximately $3.5 million.

The Company had sold an aggregate of approximately 17,998,846 shares of common stock under the Sales Agreement as of November 11, 2019.

Results of Operations

Management evaluates theour results of operations and cash flows using a variety of key performance indicators, including revenues compared to prior periods and internal forecasts, costs of our products and results of our cost reduction initiatives, and operating cash use. These are discussed throughout the “Results of Operations” and “Liquidity and Capital Resources” sections. Results of Operations are presented in accordance with accounting principles generally accepted in the United States (“GAAP”).

Comparison of the Years Ended October 31, 2019 and 2018

Revenues and Costs of revenues

Our revenues and cost of revenues for the years ended October 31, 2019 and 2018 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2019

 

 

2018

 

 

$

 

 

%

 

Total revenues

 

$

60,752

 

 

$

89,437

 

 

$

(28,685

)

 

 

(32

)%

Total costs of revenues

 

 

82,021

 

 

 

86,344

 

 

 

(4,323

)

 

 

(5

)%

Gross (loss) profit

 

$

(21,269

)

 

$

3,093

 

 

$

(24,362

)

 

 

(788

)%

Gross (loss) profit margin

 

 

(35.0

)%

 

 

3.5

%

 

 

 

 

 

 

 

 

Total revenues for the year ended October 31, 2019 decreased $28.7 million, or 32%, to $60.8 million from $89.4 million during the year ended October 31, 2018.  Total cost of revenues for the year ended October 31, 2019 decreased by $4.3 million, or 5%, to $82.0 million from $86.3 million during the year ended October 31, 2018. The Company's gross loss margin was 35.0% in fiscal year 2019, as compared to a gross profit margin of 3.5% in fiscal year 2018.  A discussion of the changes in product sales, service agreement and license revenues, Advanced Technologies contract revenues, and generation revenues follows. Refer to “Critical Accounting Policies and Estimates” for more information on revenue and cost of revenue classifications.

Product sales

Our product sales, cost of product sales and gross loss from product sales for the years ended October 31, 2019 and 2018 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2019

 

 

2018

 

 

$

 

 

%

 

Product sales

 

$

481

 

 

$

52,490

 

 

$

(52,009

)

 

 

(99

)%

Cost of product sales

 

 

18,552

 

 

 

54,504

 

 

 

(35,952

)

 

 

(66

)%

Gross loss from product sales

 

$

(18,071

)

 

$

(2,014

)

 

$

(16,057

)

 

 

(797

)%

Product sales gross loss margin

 

 

(3757.0

)%

 

 

(3.8

)%

 

 

 

 

 

 

 

 

Product sales for the year ended October 31, 2019 consisted of $0.5 million of power plant revenue compared to $52.5 million of product revenues for the year ended October 31, 2018, which included $49.4 million of power plant revenue and $3.1 million of revenue related to engineering and construction services.

The decline in product sales was primarily a result of our previous strategic decision to focus on utility scale PPA business opportunities to grow our generation portfolio, rather than selling our projects upon completion, and our continuing inability to access the Asian markets as a result of the situation with POSCO Energy.


Product sales for the year ended October 31, 2018 included revenues from the 20 MW order from Hanyang Industrial Development Co., Ltd (“HYD”), pursuant to which we provided equipment to HYD for a fuel cell project with KOSPO. Shipments began in the fourth quarter of fiscal 2017 and were completed in the first quarter of fiscal 2018.  During the year ended October 31, 2018, we also recorded product revenues for the sale of a 2.8 MW natural gas fueled fuel cell power plant project located at the waste water treatment facility in Tulare, California to Clearway Energy.

Cost of product sales decreased $36.0 million for the year ended October 31, 2019 to $18.6 million, compared to $54.5 million in the prior year.  Overall gross loss from product sales was $18.1 million for the year ended October 31, 2019 compared to a gross loss of $2.0 million in the year ended October 31, 2018.  Both periods were impacted by the under-absorption of fixed overhead costs due to low production volumes.  Manufacturing variances, primarily related to low production volumes and other charges, totaled approximately $14.5 million for the year ended October 31, 2019 compared to approximately $11.2 million for the year ended October 31, 2018.  Cost of product sales for the year ended October 31, 2019 also includes an impairment charge for a specific construction in process asset related to automation equipment for use in manufacturing with a carrying value of $2.8 million, which was impaired due to uncertainty as to whether the asset will be completed as a result of the Company’s liquidity position and continued low level of production rates.  For the year ended October 31, 2019, we operated at an annualized production rate of approximately 17 MW compared to a 25 MW annualized production rate in the year ended October 31, 2018.   The annualized production rate as of October 31, 2019 was 10 MW.

As of October 31, 2018, product sales backlog totaled approximately $1,000.  There was no product sales backlog as of October 31, 2019.

Service and license revenues

Our service and license revenues and associated cost of revenues for the years ended October 31, 2019 and 2018 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2019

 

 

2018

 

 

$

 

 

%

 

Service and license revenues

 

$

26,618

 

 

$

15,757

 

 

$

10,861

 

 

 

69

%

Cost of service and license revenues

 

 

18,943

 

 

 

15,059

 

 

 

3,884

 

 

 

26

%

Gross profit from service and license revenues

 

$

7,675

 

 

$

698

 

 

$

6,977

 

 

 

(1,000

)%

Service and license revenues gross margin

 

 

28.8

%

 

 

4.4

%

 

 

 

 

 

 

 

 

Revenues for the year ended October 31, 2019 from service agreements and license fees increased $10.9 million to $26.6 million from $15.8 million for the year ended October 31, 2018.  Service revenues increased from the year ended October 31, 2018 primarily due to revenues of $10.0 million recorded in connection with the EMRE License Agreement during the year ended October 31, 2019 and higher revenue from module replacements during the year ended October 31, 2019 (particularly during the first quarter of the year ended October 31, 2019) compared to the prior year. The prior year included revenue recorded in connection with the service agreement associated with the 14.9 MW fuel cell park in Bridgeport, Connecticut (“Bridgeport Fuel Cell Project”) of $2.3 million, compared to revenue recorded during the year ended October 31, 2019 of $8.0 million.  As a result of the purchase of the Bridgeport Fuel Cell Project on May 9, 2019, revenue under the Bridgeport FuelCell Project service agreement is no longer being recognized.


The increases in revenue were partially offset by a decrease in revenue resulting from the adoption of Accounting Standards Update (“ASU”) 2014-09, “Revenue from Contracts with Customers” (“Topic 606”) as of November 1, 2018, which impacted service and license revenues recognition. Service revenues are now recorded based on a cost-to-cost input method whereas previously service revenues for maintenance and monitoring were recorded ratably over the term of the service agreement and revenue from module exchanges was recognized upon the module replacement event.  Performance guarantees, which were previously recorded as a cost of service and license revenues, are now accounted for as variable consideration with a reduction to service and license revenues.  License revenues were previously recorded over the contract term on a straight-line basis; however, upon adoption of Topic 606, we assessed the performance obligations within an existing license contract and allocated consideration between performance obligations that are satisfied at a point in time and performance obligations that are recognized over time.  Revenue from a license performance obligation that is satisfied over time was $1.6 million for the year ended October 31, 2019, compared to $2.2 million for the year ended October 31, 2018.

Cost of service and license revenues increased $3.9 million to $18.9 million for the year ended October 31, 2019 from $15.1 million for the year ended October 31, 2018.  Cost of service agreements includes maintenance and operating costs, module exchanges, and, in the fiscal year ended October 31, 2018 (prior to the adoption of Topic 606), also included performance guarantees.

Overall gross profit from service and license revenues was $7.7 million for the year ended October 31, 2019, which represents an increase of $7.0 million from gross profit of $0.7 million for the year ended October 31, 2018.  The adoption of Topic 606 resulted in a reduction of service and license margins of $2.6 million primarily due to a reduction in license revenue and a decrease in the amount of revenue that was recorded under Topic 606.  Service and license revenue gross margins were further impacted by a change in our estimates for future module replacements, which resulted in a reduction of revenue of approximately $1.0 million and an increase in the service loss reserve of $1.7 million.  The overall gross margin percentage of 28.8% for the year ended October 31, 2019 increased compared to 4.4% in the year ended October 31, 2018.  This increase was primarily a result of the EMRE License Agreement revenues recorded for the year ended October 31, 2019, which had no corresponding cost of sales.

As of October 31, 2019, service backlog totaled $169.4 million compared to $251.7 million as of October 31, 2018.  This backlog is for service agreements of up to 20 years at inception and is expected to generate positive margins and cash flows based on current estimates. The decrease in service backlog is primarily due to the acquisition of the Bridgeport Fuel Cell Project, as the service backlog previously associated with such project is now being included within generation backlog.  This acquisition has resulted in additional revenue to be recorded under the PPA as compared to the service agreement.  Service backlog also includes future license revenue.

Generation revenues

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2019

 

 

2018

 

 

$

 

 

%

 

Generation revenues

 

$

14,034

 

 

$

7,171

 

 

$

6,863

 

 

 

96

%

Cost of generation revenues

 

 

31,642

 

 

 

6,421

 

 

 

25,221

 

 

 

393

%

Gross (loss) profit from generation revenues

 

$

(17,608

)

 

$

750

 

 

$

(18,358

)

 

 

(2,448

)%

Generation revenues gross (loss) margin

 

 

(125.5

)%

 

 

10.5

%

 

 

 

 

 

 

 

 

Revenues for the year ended October 31, 2019 from generation increased $6.9 million to $14.0 million from $7.2 million for the year ended October 31, 2018.  Generation revenues for the years ended October 31, 2019 and 2018 reflect revenue from electricity generated under the Company’s PPAs.  Generation revenues increased for the year ended October 31, 2019 compared to the year ended October 31, 2018 due to additional revenue recorded for the Bridgeport Fuel Cell Project, which was acquired on May 9, 2019. Revenue recognized under the related PPA subsequent to the acquisition of the Bridgeport Fuel Cell Project is now included in Generation revenues in an amount equal to $7.0 million.  Cost of generation revenues totaled $31.6 million in the year ended October 31, 2019, compared to $6.4 million for the year ended October 31, 2018.  


The increase in Cost of generation revenues was primarily a result of: (i) our growing generation fleet, (ii) an impairment charge for the Triangle Street Project and (iii) an impairment charge for the Bolthouse Farms Project, which are further described as follows:

i.

Growing generation fleet: The 14.9 MW Bridgeport Fuel Cell Project was acquired by the Company on May 9, 2019. As a result of this acquisition, the Company is now incurring costs related to the fuel for the plant as well as service, administration and depreciation costs and expenses associated with the amortization of the intangible asset related to the acquired PPA.  Depreciation and amortization expense recorded during the fiscal year ended October 31, 2019 for the Bridgeport Fuel Cell Project was $3.1 million and $0.6 million, respectively.

ii.

Impairment charge for the Triangle Street Project:  In the fourth quarter of fiscal 2019, management determined that it will not be able to secure a PPA with terms acceptable to the Company for the Triangle Street Project. Therefore, it is management’s current intention to operate the project under a merchant model for the next 5 years. The project will sell power through the Connecticut grid under wholesale tariff rates and Renewable Energy Credits (RECs) to market participants. As a result of management’s decision to operate the project in this manner, an impairment charge of $14.4 million was recorded in the fourth quarter of fiscal 2019. The amount of the impairment charge was determined by comparing the estimated discounted cash flows of the project and the expected residual value of the project to its carrying value.  Management expects to continue to pursue economic enhancements for this project, but cannot currently assess the probability of closing on a revenue contract for the power above wholesale market rates.

iii.

Impairment charge for the Bolthouse Farms Project:  An impairment charge for the Bolthouse Farms Project was recorded as management has decided to pursue termination of the PPA given recent regulatory changes impacting the future cost profile for the Company and Bolthouse Farms. Since it is considered probable that the PPA will be terminated, a $3.1 million impairment charge was recorded, which reflects the difference between the carrying value of the asset and the value of the components that are expected to be redeployed to other projects. This project was removed from the Company’s backlog as of October 31, 2019.

Cost of generation revenues included depreciation of approximately $6.8 million and $4.1 million for the years ended October 31, 2019 and 2018, respectively, and included amortization of $0.6 million for the Bridgeport Fuel Cell Project PPA for the year ended October 31, 2019. We had 26.1 MW of operating power plants in our portfolio as of October 31, 2019, compared to 11.2 MW as of October 31, 2018. This increase is a result of the acquisition of the Bridgeport Fuel Cell Project.

As of October 31, 2019, generation backlog totaled $1.1 billion compared to $839.5 million as of October 31, 2018.  

Advanced Technologies contracts

Advanced Technologies contracts revenue and related costs for the years ended October 31, 2019 and 2018 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2019

 

 

2018

 

 

$

 

 

%

 

Advanced Technologies contracts

 

$

19,619

 

 

$

14,019

 

 

$

5,600

 

 

 

40

%

Cost of Advanced Technologies contracts

 

 

12,884

 

 

 

10,360

 

 

 

2,524

 

 

 

24

%

Gross profit

 

$

6,735

 

 

$

3,659

 

 

$

3,076

 

 

 

84

%

Advanced Technologies contracts gross margin

 

 

34.3

%

 

 

26.1

%

 

 

 

 

 

 

 

 


Revenues for the year ended October 31, 2019 from Advanced Technologies contracts increased $5.6 million to $19.6 million from $14.0 million for the year ended October 31, 2018. The adoption of Topic 606 had no impact on Advanced Technologies revenue for the year ended October 31, 2019.  The increase for the year ended October 31, 2019 was primarily due to the timing of project activity under existing contracts. Cost of Advanced Technologies contract revenues increased $2.5 million to $12.9 million for the year ended October 31, 2019, compared to $10.4 million for the year ended October 31, 2018.  Advanced Technologies contracts for the year ended October 31, 2019 generated a gross profit of $6.7 million compared to a gross profit of $3.7 million for the year ended October 31, 2018.  The increase in Advanced Technologies contract gross margin is related to the timing and mix of contracts being performed during the year ended October 31, 2019, particularly a higher proportion related to private industry contracts.

At October 31, 2019, Advanced Technologies contract backlog totaled $12.0 million compared to $32.4 million at October 31, 2018.

Administrative and selling expenses

Administrative and selling expenses were $31.9 million and $24.9 million for the years ended October 31, 2019 and 2018, respectively.  The increase from the prior year primarily relates to legal and consulting costs related to our restructuring, liquidity and refinancing initiatives. Total legal and professional fees incurred for the year ended October 31, 2019 were $11.5 million, compared to $4.1 million in the year ended October 31, 2018.

Research and development expenses

Research and development expenses decreased to $13.8 million for the year ended October 31, 2019 compared to $22.8 million during the year ended October 31, 2018.  The decrease related to the reduction in spending resulting from the restructuring initiatives and resources being allocated to funded Advanced Technologies projects.


Loss from operations

Loss from operations for the year ended October 31, 2019 was $66.9 million compared to $44.6 million for the year ended October 31, 2018.  The increase in the loss from operations was primarily a result of the fact that there were no significant product sales, unfavorable margins mainly due to higher manufacturing variances (which were an additional $3.3 million for the year ended October 31, 2019 compared to the prior year), unfavorable generation margins resulting from the impairment charges of $20.4 million for the year ended October 31, 2019 and higher administrative and selling expenses of $7.0 million, partially offset by higher margins for service and license revenues, which were primarily due to the $10.0 million in revenue recorded for the EMRE License Agreement and lower research and development expenses of $9.0 million.

Interest expense

Interest expense for the years ended October 31, 2019 and 2018 was $10.6 million and $9.1 million, respectively.  Interest expense for both periods presented includes interest on the loan and security agreement with Hercules Capital, Inc. (“Hercules”), interest expense related to financing obligations resulting from sale-leaseback transactions and interest for the amortization of the fair value discount of the Series 1 Preferred Stock.  The increase in interest expense represents additional interest on the loans made by Fifth Third Bank and Liberty Bank in connection with the acquisition of the Bridgeport Fuel Cell Project and a modification fee of $0.8 million that was recorded in connection with the amendment of the loan agreement with NRG.  The interest expense for the years ended October 31, 2019 and 2018 includes interest for the accretion of the fair value discount for the Series 1 Preferred Stock of $2.3 million and $2.2 million, respectively.

Other income, net

Other income, net was $0.1 million for the year ended October 31, 2019 compared to other income, net of $3.3 million for the year ended October 31, 2018. The income for each of the years ended October 31, 2019 and 2018 includes income of $0.6 million for refundable research and development tax credits.  The income for fiscal year 2019 was offset by expense of $0.6 million for the fair value adjustments of an interest rate swap.  Other income, net for the prior year also includes a foreign exchange gain related to the remeasurement of the Canadian Dollar denominated preferred stock obligation of our U.S. Dollar functional currency Canadian subsidiary and a foreign exchange gain that was realized on payments and unbilled receivable balances denominated in South Korean Won for the HYD contract.

(Provision) benefit for income taxes

We have not paid federal or state income taxes in several years due to our history of net operating losses, although we have paid foreign income and withholding taxes in South Korea.  The Company recorded an income tax provision totaling $0.1 million for the year ended October 31, 2019 compared to a benefit of $3.0 million for the year ended October 31, 2018.  The income tax benefit in 2018 was primarily related to the Tax Cuts and Jobs Act (the “Act”) that was enacted on December 22, 2017. The Act reduced the U.S. federal corporate tax rate from 34% to 21% effective January 1, 2018, which resulted in a deferred tax benefit of $1.0 million primarily related to a reduction of the Company’s deferred tax liability for in process research and development (“IPR&D”) for the year ended October 31, 2018.  The Act also established an unlimited carryforward period for the net operating loss (“NOL”) the Company generated in fiscal year 2018.  This provision of the Act resulted in a reduction of the valuation allowance attributable to deferred tax assets at the enactment date by $2.0 million based on the indefinite life of the resulting NOL as well as the deferred tax liability for IPR&D.

As of October 31, 2019, we had $850.0 million of federal NOL carryforwards that expire in the years 2020 through 2039 and $438.8 million of state NOL carryforwards that expire in the years 2020 through 2039.  Additionally, we had $8.8 million of state tax credits available that expire from tax years 2020 to 2039.

Series A warrant exchange

For the year ended October 31, 2019, we recorded a charge to common stockholders for the difference between the fair value of the Series A Warrant (which was issued by the Company in July 2016) prior to our entry into the February 21, 2019 Exchange Agreement with the Series A Warrant holder (the “Exchange Agreement”) of $0.3 million and the fair value of the common shares issuable at the date of the Exchange Agreement of $3.5 million.


Series B preferred stock dividends

Dividends charges for the Series B Preferred Stock were $3.2 million in each of the years ended October 31, 2019 and 2018.

Series C preferred stock deemed dividends and redemption value adjustment, net

As discussed in more detail in Note 15. “Redeemable Preferred Stock” of the Notes to Consolidated Financial Statements, conversions during the years ended October 31, 2019 and 2018 resulted in a net deemed contribution of $1.6 million and a deemed dividend of $9.6 million, respectively.  The deemed contributions (dividends) represent the difference between the fair value of the common shares issued to settle the conversion amounts and the carrying value of the shares of the Company’s Series C Convertible Preferred Stock (such shares are referred to herein as the “Series C Preferred Shares” and such stock is referred to herein as the “Series C Preferred Stock”).  Additionally, during the year ended October 31, 2019, the net loss to common stockholders was impacted by a $0.5 million deemed contribution resulting from accounting for the Waiver Agreement, dated February 21, 2019, between the Company and the holder of the Series C Preferred Stock (the “Waiver Agreement”) and a $8.6 million redemption value adjustment recorded to adjust the carrying value of the Series C Preferred Shares to their redemption value during the quarter ended January 31, 2019 due to the occurrence of equity condition failures (as defined in the Certificate of Designations of the Series C Preferred Stock).

Series D preferred stock deemed dividends and redemption accretion

Conversions where the conversion price was below the initial conversion price (as adjusted for the reverse stock split) of $16.56 per share resulted in a variable number of shares being issued to settle the conversion amounts and are treated as a partial redemption of the shares of the Company’s Series D Convertible Preferred Stock (such shares are referred to herein as the “Series D Preferred Shares” and such stock is referred to herein as the “Series D Preferred Stock”).  Conversions during the years ended October 31, 2019 and 2018 that were settled in a variable number of shares and treated as redemptions resulted in deemed dividends of $6.0 million and $2.1 million, respectively.  The deemed dividends represent the difference between the fair value of the common shares issued to settle the conversion amounts and the carrying value of the Series D Preferred Shares.

The Series D Preferred Stock redemption accretion of $3.8 million recorded during the year ended October 31, 2019 reflects the accretion of the difference between the carrying value of the Series D Preferred Stock and the amount that would have been redeemed if stockholder approval had not been obtained for the issuance of common stock equal to 20% or more of our outstanding voting stock prior to the issuance of the Series D Preferred Stock.   If we had been unable to obtain such stockholder approval and were therefore prohibited from issuing shares of common stock as a result of this limitation (the “Exchange Cap Shares”) to a holder of Series D Preferred Stock at any time after April 30, 2019, we would have been required to pay cash to such holder in exchange for the redemption of such number of Series D Preferred Shares held by such holder that would not have been convertible into such Exchange Cap Shares.  Stockholder approval was obtained at the annual meeting of the Company’s stockholders on April 4, 2019 and no further accretion was required.

Net loss attributable to common stockholders and loss per common share  

Net loss attributable to common stockholders represents the net loss for the period less the impact from the Series A Warrant exchange charge, Series B Preferred Stock dividends, Series C Preferred Stock deemed dividends and contributions, Series C redemption value adjustment, and Series D Preferred Stock dividends and redemption accretion.  For the years ended October 31, 2019 and 2018, net loss attributable to common stockholders was $100.2 million and $62.2 million, respectively, and loss per common share was $1.82 and $9.01, respectively.


Comparison of the Years Ended October 31, 2018 and 2017

Revenues and Costs of revenues

Our revenues and cost of revenues for the years ended October 31, 2018 and 2017 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2018

 

 

2017

 

 

$

 

 

%

 

 

2018

 

 

2017

 

 

$

 

 

%

 

Total revenues

 

$

89,437

 

 

$

95,666

 

 

$

(6,229

)

 

 

(7

)%

 

$

89,437

 

 

$

95,666

 

 

$

(6,229

)

 

 

(7

)%

Total costs of revenues

 

 

86,344

 

 

 

92,932

 

 

 

(6,588

)

 

 

(7

)%

 

 

86,344

 

 

$

92,932

 

 

 

(6,588

)

 

 

(7

)%

Gross profit

 

$

3,093

 

 

$

2,734

 

 

$

359

 

 

 

13

%

 

$

3,093

 

 

$

2,734

 

 

$

359

 

 

 

13

%

Gross margin

 

 

3.5

%

 

 

2.9

%

 

 

 

 

 

 

 

 

 

 

3.5

%

 

 

2.9

%

 

 

 

 

 

 

 

 

 

Total revenues for the year ended October 31, 2018 decreased $6.2 million, or 7%, to $89.4 million from $95.7 million during the year ended October 31, 2017.  Total cost of revenues for the year ended October 31, 2018 decreased by $6.6 million, or 7%, to $86.3 million from $92.9 million during the year ended October 31, 2017. The Company's gross margin was 3.5% in fiscal year 2018, as compared to the prior year gross margin of 2.9%.  A discussion of the changes in product sales, service agreement and license revenues, Advanced Technologies contract revenues, and generation revenues follows. Refer to “Critical Accounting Policies and Estimates” for more information on revenue and cost of revenue classifications.

Product sales

Our product sales, cost of product sales and gross profit for the years ended October 31, 2018 and 2017 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2018

 

 

2017

 

 

$

 

 

%

 

 

2018

 

 

2017

 

 

$

 

 

%

 

Product sales

 

$

52,490

 

 

$

43,047

 

 

$

9,443

 

 

 

22

%

 

$

52,490

 

 

$

43,047

 

 

$

9,443

 

 

 

22

%

Cost of product sales

 

 

54,504

 

 

 

49,843

 

 

 

4,661

 

 

 

9

%

 

 

54,504

 

 

 

49,843

 

 

 

4,661

 

 

 

9

%

Gross loss from product sales

 

$

(2,014

)

 

$

(6,796

)

 

$

4,782

 

 

 

70

%

 

$

(2,014

)

 

$

(6,796

)

 

$

4,782

 

 

 

70

%

Product sales gross margin

 

 

(3.8

)%

 

 

(15.8

)%

 

 

 

 

 

 

 

 

Product sales gross loss margin

 

 

(3.8

)%

 

 

(15.8

)%

 

 

 

 

 

 

 

 

 

Product revenuessales for the year ended October 31, 2018 included $49.4 million of power plant revenue and $3.1 million of revenue related to engineering and construction services. This is compared to product revenuessales for the year ended October 31, 2017, which included $41.0 million of power plant revenue and $2.0 million of revenue related to engineering and construction services.

The increase in product revenuessales for the year ended October 31, 2018 when compared to the prior year period was primarily due to the 20 MW order from Hanyang Industrial Development Co., Ltd (“HYD”),HYD, pursuant to which we provided equipment to HYD for a fuel cell project with Korea Southern Power Co., Ltd. (“KOSPO”).KOSPO. Shipments began in the fourth quarter of fiscal 2017, which resulted in $38.5 million in revenue recorded in the prior year, and were completed in the first quarter of fiscal 2018, which resulted in $28.5 million in revenue recorded in fiscal year 2018. The Company completed commissioning the plant in the third quarter of fiscal 2018. The Company also completed the sale of certain project assets, including a 2.8 MW natural gas fueled plant at the City of Tulare and a 1.4 MW plant at Trinity College.

 


Cost of product revenuessales increased $4.7 million for the year ended October 31, 2018 to $54.5 million, compared to $49.8 million in the same period in the prior year.  Overall gross loss from product revenuessales was $2.0 million for the year ended October 31, 2018 compared to gross loss of $6.8 million in the prior year comparable period.  Gross loss decreased from the prior year period due primarily to the favorable margins realized for the HYD contract and the sale of certain project assets.  Both periods were impacted by the under-absorption of fixed overhead costs due to low production volumes of approximately 25 MW in each fiscal year.

As of October 31, 2018, product sales backlog totaled approximately $1.0 thousand$1,000 compared to $31.3 million as of October 31, 2017.


Service and license revenuesLicense Revenues

Our service agreements and license revenues and associated cost of revenues for the years ended October 31, 2018 and 2017 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2018

 

 

2017

 

 

$

 

 

%

 

 

2018

 

 

2017

 

 

$

 

 

%

 

Service and license revenues

 

$

15,757

 

 

$

27,050

 

 

$

(11,293

)

 

 

(42

)%

 

$

15,757

 

 

$

27,050

 

 

$

(11,293

)

 

 

(42

)%

Cost of service and license revenues

 

 

15,059

 

 

 

25,285

 

 

 

(10,226

)

 

 

(40

)%

 

 

15,059

 

 

 

25,285

 

 

 

(10,226

)

 

 

(40

)%

Gross profit from service and

license revenues

 

$

698

 

 

$

1,765

 

 

$

(1,067

)

 

 

60

%

 

$

698

 

 

$

1,765

 

 

$

(1,067

)

 

 

60

%

Service and license revenues gross

margin

 

 

4.4

%

 

 

6.5

%

 

 

 

 

 

 

 

 

 

 

4.4

%

 

 

6.5

%

 

 

 

 

 

 

 

 

 

Revenues for the year ended October 31, 2018 from service agreements and license fee and royalty agreements decreased $11.3 million to $15.8 million from $27.1 million for the year ended October 31, 2017.  Service agreement revenue decreased from the year ended October 31, 2017 primarily due to lower revenue from fewer module replacements in the year ended October 31, 2018 as compared to the same period in the prior year. Revenue from license, royalty and material management fees decreased to $2.2 million for the year ended October 31, 2018 from $2.7 million for the prior year period due to lower royalties recognized.

Cost of service and license revenues decreased $10.2 million to $15.1 million for the year ended October 31, 2018 from $25.3 million for the year ended October 31, 2017.  Cost of service agreements includes maintenance and operating costs, module exchanges, and performance guarantees.  The decrease over the prior year period relates to lower expenses associated with module replacements and lower operating costs in the year ended October 31, 2018.

Overall gross profit from service and license revenues was $0.7 million for the year ended October 31, 2018. The overall gross margin percentage of 4.4 percent for the year ended October 31, 2018 compared to 6.5 percent in the prior year period.  Service margins were negatively impacted by, among other immaterial factors, costs associated with a terminated legacy service contract during the year ended October 31, 2018.

As of October 31, 2018, service backlog totaled approximately $316.0$251.7 million compared to $182.3 million as of October 31, 2017.  Service backlog does not include future royalties or license revenues.revenues for either 2018 or 2017.  This backlog is for service agreements of up to twenty years and is expected to generate positive margins and cash flows based on current estimates.20 years.

Generation revenues

 

Generation revenue and related costs for the years ended October 31, 2018 and 2017 were as follows:

 

Years Ended October 31,

 

 

Change

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2018

 

 

2017

 

 

$

 

 

%

 

 

2018

 

 

2017

 

 

$

 

 

%

 

Generation revenues

 

$

7,171

 

 

$

7,233

 

 

$

(62

)

 

 

(1

)%

 

$

7,171

 

 

$

7,233

 

 

$

(62

)

 

 

(1

)%

Cost of generation revenues

 

 

6,421

 

 

 

5,076

 

 

 

1,345

 

 

 

26

%

 

 

6,421

 

 

 

5,076

 

 

 

1,345

 

 

 

26

%

Gross profit from generation revenues

 

$

750

 

 

$

2,157

 

 

$

(1,407

)

 

 

(65

)%

Generation revenues gross profit

 

$

750

 

 

$

2,157

 

 

$

(1,407

)

 

 

(65

)%

Generation revenues gross margin

 

 

10.5

%

 

 

29.8

%

 

 

 

 

 

 

 

 

 

 

10.5

%

 

 

29.8

%

 

 

 

 

 

 

 

 

 

Revenues for the year ended October 31, 2018 from generation totaled $7.2 million, which is generally consistent with revenues for the year ended October 31, 2017.  Generation revenues for the years ended October 31, 2018 and 2017 reflects revenue from electricity generated from the Company’s PPAs.  Cost of generation revenues totaled $6.4 million in the year ended October 31, 2018, compared to $5.1 million for the comparable prior year period.  The decrease in gross profit from generation revenues was primarily a result of the $0.5 million impairment of a 1.4 MW project in development that was terminated in fiscal year 2018 and higher maintenance activities at certain installations that occurred in the first half of 2018. Cost of generation revenues included depreciation of approximately $4.1 million for each of the years ended October 31, 2018 and 2017. The Company had 11.2 MW of operating power plants in its portfolio for both periods presented.periods.

As of October 31, 2018, generation backlog totaled approximately $839.5 million compared to $296.3 million as of October 31, 2017.


Advanced Technologies contracts

Advanced Technologies contracts revenue and related costs for the years ended October 31, 2018 and 2017 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2018

 

 

2017

 

 

$

 

 

%

 

 

2018

 

 

2017

 

 

$

 

 

%

 

Advanced Technologies contracts

 

$

14,019

 

 

$

18,336

 

 

$

(4,317

)

 

 

(24

)%

 

$

14,019

 

 

$

18,336

 

 

$

(4,317

)

 

 

(24

)%

Cost of Advanced Technologies contracts

 

 

10,360

 

 

 

12,728

 

 

 

(2,368

)

 

 

(19

)%

 

 

10,360

 

 

 

12,728

 

 

 

(2,368

)

 

 

(19

)%

Gross profit

 

$

3,659

 

 

$

5,608

 

 

$

(1,949

)

 

 

(35

)%

Advanced Technologies contracts gross profit

 

$

3,659

 

 

$

5,608

 

 

$

(1,949

)

 

 

(35

)%

Advanced Technologies contracts gross margin

 

 

26.1

%

 

 

30.6

%

 

 

 

 

 

 

 

 

 

 

26.1

%

 

 

30.6

%

 

 

 

 

 

 

 

 

 

Advanced Technologies contract revenue for the year ended October 31, 2018 was $14.0 million, which reflects a decrease of $4.3 million when compared to $18.3 million of revenue for the year ended October 31, 2017.  Advanced Technologies contract revenue was lower for the year ended October 31, 2018 primarily due to the timing of project activity under existing contracts.  Cost of Advanced Technologies contract revenues decreased $2.4 million to $10.4 million for the year ended October 31, 2018, compared to $12.7 million for the same period in the prior year.  Advanced Technologies contracts for the year ended October 31, 2018 generated a gross profit of $3.7 million compared to a gross profit of $5.6 million for the year ended October 31, 2017.  The decrease in Advanced Technologies contract gross margin is related to the timing and mix of contracts being performed during the year ended October 31, 2018, particularly a lower proportion related to private industry contracts.

At October 31, 2018, Advanced Technologies contract backlog totaled approximately $32.4 million compared to $44.3 million at October 31, 2017.

Administrative and selling expenses

Administrative and selling expenses were $24.9 million and $25.9 million for the years ended October 31, 2018 and 2017, respectively.  The decrease from the prior year period relates to lower compensation expense offset marginally by higher professional related expenditures and business development activities during the year ended October 31, 2018.

Research and development expenses

Research and development expenses increased to $22.8 million for the year ended October 31, 2018 compared to $20.4 million during the year ended October 31, 2017.  The increase from the prior year period is primarily due to timing of research and development activities related to new products including the SureSource 4000.


Restructuring expense

Restructuring expense of $1.4 million was recorded for the year ended October 31, 2017, relating to personnel separation costs from the business restructuring that was undertaken to reduce costs and align production levels with the level of production needs at the time. There were no restructuring activities for the year ended October 31, 2018.

Loss from operations

Loss from operations for the year ended October 31, 2018 was $44.6 million compared to $44.9 million for the year ended October 31, 2017.  The decrease was due to higher gross profit realized for the year ended October 31, 2018, lower administrative and selling expense and the lack of restructuring expense during the year ended October 31, 2018.  This was offset by increased research and development expenses.

Interest expense

Interest expense for the years ended October 31, 2018 and 2017 was $9.1 million and $9.2 million, respectively.  Interest expense for both periods presented includes interest on the loan and security agreement with Hercules and interest expense related to sale-leaseback transactions. The interest expense for the years ended October 31, 2018 and 2017 includes interest for the accretion of the redeemable preferred stock of a subsidiary fair value discount of $2.2 million and $2.0 million, respectively.


Other income, net

Other income, net, was $3.3 million for the year ended October 31, 2018 compared to other income, net of $0.2 million for the year ended October 31, 2017.  The other income, net for both periods presented includes foreign exchange gains (losses) related to the remeasurement of the Canadian Dollar denominated preferred stock obligation of our U.S. Dollar functional currency Canadian subsidiary. For the year ended October 31, 2018, foreign exchange gain was realized on payments and unbilled receivable balances denominated in South Korean Won for the HYD contract. Refundable research and development tax credits for the years ended October 31, 2018 and 2017 were $0.6 million and $0.9 million, respectively.

Benefit (provision) for income taxes

We have not paid federal or state income taxes in several years due to our history of net operating losses, although we have paid foreign income and withholding taxes in South Korea.  The Company recorded an income tax benefit totaling $3.0 million for the year ended October 31, 2018 compared to income tax expense of $0.04 million for the year ended October 31, 2017.  The income tax benefit for the year ended October 31, 2018 primarily related to the Tax Cuts and Jobs Act (the “Act”) that was enacted on December 22, 2017. The Act reduced the U.S. federal corporate tax rate from 34% to 21% effective January 1, 2018, which resulted in a deferred tax benefit of $1.0 million primarily related to a reduction of the Company’s deferred tax liability for in process research and development (“IPR&D”).&D.  The Act also established an unlimited carryforward period for the NOL the Company generated in fiscal year 2018.  This provision of the Act resulted in a reduction of the valuation allowance attributable to deferred tax assets at the enactment date by $2.0 million based on the indefinite life of the resulting NOL as well as the deferred tax liability for IPR&D.

As of October 31, 2018, we had $799.9 million of federal NOL carryforwards that expire in the years 2019 through 2037 and $410.2 million inof state NOL carryforwards that expire in the years 2019 through 2037.  Additionally, we had $8.3 million of state tax credits available that expire from tax years 2018 to 2037.

Series DB preferred stock redemption accretiondividends

The

Dividends recorded and paid on the Series DB Preferred Stock redemption accretionwere $3.2 million in each of $2.1 million for the yearyears ended October 31, 2018 reflects the accretion of the difference between the carrying value and the amount that would be redeemed should stockholder approval not be obtained for common stock issuance equal to 20% or more of the Company’s outstanding voting stock as of the date of issuance of the Series D Preferred Stock.   In the event that the Company is unable to obtain such stockholder approval and is therefore prohibited from issuing shares of common stock as a result of this limitation2017.


(the “Exchange Cap Shares”) to a holder of Series D Preferred Stock at any time after April 30, 2019, the Company shall pay cash to such holder in exchange for the redemption of such number of Series D Preferred Shares held by such holder that are not convertible into such Exchange Cap Shares at a price equal to the product of  (i) such number of Exchange Cap Shares and (ii) the closing sale price on the trading day immediately preceding the date such holder delivers the applicable conversion notice with respect to such Exchange Cap Shares to the Company.

Series C preferred stock deemed dividends and redemption value adjustment, net

Installment conversions occurring prior to August 27, 2018 in which the conversion price was below the initial conversion price of $1.84 per share and installment conversions occurring between August 27, 2018 and October 31, 2018 in which the conversion price was below the adjusted conversion price of $1.50 per share resulted in a variable number of shares being issued to settle the installment amount and were treated as a partial redemption of the Series C Preferred Shares.  Installment conversions during the year ended October 31, 2018 that were settled in a variable number of shares and treated as redemptions resulted in deemed dividends of $9.6 million.  There were no deemed dividends recorded for the year ended October 31, 2017 since the Series C Preferred Shares were not issued until September 2017 and installment conversions started in October 2017.  The deemed dividend represents the difference between the fair value of the common shares issued to settle the installment amounts and the carrying value of the Series C Preferred Shares.

Series BD preferred stock dividendsredemption accretion and redemption accretion

Dividends recorded and paid on the

The Series BD Preferred Stock were $3.2redemption accretion of $2.1 million in each offor the yearsyear ended October 31, 2018 reflects the accretion of the difference between the carrying value and 2017.the amount that would be redeemed if stockholder approval had not been obtained for common stock issuance equal to 20% or more of the Company’s outstanding voting stock as of the date of issuance of the Series D Preferred Stock.   In the event that the Company had been unable to obtain such stockholder approval and was therefore prohibited from issuing shares of common stock as a result of this limitation (the “Exchange Cap Shares”) to a holder of Series D Preferred Stock at any time after April 30, 2019, the Company would have been obligated to pay cash to such holder in exchange for the redemption of such number of Series D Preferred Shares held by such holder that are not convertible into such Exchange Cap Shares at a price equal to the product of  (i) such number of Exchange Cap Shares and (ii) the closing sale price on the trading day immediately preceding the date such holder delivers the applicable conversion notice with respect to such Exchange Cap Shares to the Company.


Net loss attributable to common stockholders and loss per common share

 

Net loss attributable to common stockholders represents the net loss for the period less the Series D Preferred Stock redemption accretion, preferred stock deemed dividends on the Series C Preferred Stock and the preferred stock dividends on the Series B Preferred Stock.  For the years ended October 31, 2018 and 2017, net loss attributable to common stockholders was $62.2 million and $57.1 million, respectively, and loss per common share was $0.75$9.01 and $1.14,$13.73, respectively.

Comparison of the Years Ended October 31, 2017 and 2016

Revenues and Costs of revenues

Our revenues and cost of revenues for the years ended October 31, 2017 and 2016 were as follows:

 

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

Total revenues

 

$

95,666

 

 

$

108,252

 

 

$

(12,586

)

 

 

(12

)%

Total costs of revenues

 

$

92,932

 

 

$

108,609

 

 

 

(15,677

)

 

 

(14

)%

Gross profit (loss)

 

$

2,734

 

 

$

(357

)

 

$

3,091

 

 

 

866

%

Gross margin

 

 

2.9

%

 

 

(0.3

)%

 

 

 

 

 

 

 

 

Total revenues for the year ended October 31, 2017 decreased $12.6 million, or 12%, to $95.7 million from $108.3 million during the year ended October 31, 2016, due primarily to decreased product sales as discussed below.  Total cost of revenues for the year ended October 31, 2017 decreased by $15.7 million, or 14%, to $92.9 million from $108.6 million during the year ended October 31, 2016. The Company's gross margin was 2.9% in fiscal year 2017, as compared to the prior year gross margin loss of 0.3%.  A discussion of the changes in product sales, service agreement and license revenues, Advanced Technologies contract revenues, and generation revenues follows. Refer to “Critical Accounting Policies and Estimates” for more information on revenue and cost of revenue classifications.


Product sales

Our product sales, cost of product sales and gross profit for the years ended October 31, 2017 and 2016 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2017

 

 

2016\

 

 

$

 

 

%

 

Product sales

 

$

43,047

 

 

$

62,563

 

 

$

(19,516

)

 

 

(31

)%

Cost of product sales

 

 

49,843

 

 

 

63,474

 

 

 

(13,631

)

 

 

(21

)%

Gross loss profit from product sales

 

$

(6,796

)

 

$

(911

)

 

$

(5,885

)

 

 

(646

)%

Product sales gross margin

 

 

(15.8

)%

 

 

(1.5

)%

 

 

 

 

 

 

 

 

Product sales for the year ended October 31, 2017 included $41.0 million of power plant revenue and $2.0 million of revenue primarily related to power plant component sales and engineering, procurement and construction services (“EPC services”). This is compared to product sales for the year ended October 31, 2016 which included $11.7 million of power plant revenue, $41.8 million of fuel cell kits revenue and $9.1 million of revenue primarily from power plant component sales and EPC services.  Product sales decreased $19.5 million, or 31%, for the year ended October 31, 2017 to $43.0 million from $62.5 million for the prior year period.

The decline in revenue during the period was due primarily to lower revenue from POSCO Energy due to (i) the lack of kit sales for the year ended October 31, 2017 as the Company’s multi-year kit order with POSCO Energy concluded at the end of fiscal year 2016 and (ii) the transition to a royalty-only based model.  The Company is entitled to receive a 3.0% royalty on POSCO Energy net product sales manufactured in South Korea as well as a royalty on each scheduled fuel cell module replacement under service agreements for modules that were built by POSCO Energy. Also contributing to the decline in revenue over the comparable period was the increase in instances in which the Company installs power plants for customers that have executed PPAs.  The power plants are recognized as “Project assets” on the Consolidated Balance Sheets and generation revenue is recognized as earned over the life of the PPA or as a product sale in the event the Company sells the entire project (service agreement revenues would accompany a product sale).  The decrease in kit revenue was partially offset by an increase in power plant revenue primarily relating to the 20 MW order from HYD of which a substantial portion of revenue had been recorded for the delivered components.  

Cost of product sales decreased $13.7 million for the year ended October 31, 2017, to $49.8 million compared to $63.5 million in the prior year period.  The decrease in cost of sales in fiscal year 2017 was driven by lower overall product volume which included no kit sales during the fiscal year and retention of project assets on the balance sheet rather than sales to end customers or investors.  Cost of product sales includes costs to design, engineer, manufacture and ship our power plants and power plant components to customers, site engineering and construction costs where we are responsible for power plant system installation, costs for assembly and conditioning equipment sold to POSCO Energy, warranty expense and inventory excess and obsolescence charges.  The decrease in product sales gross margin was primarily due to lower manufacturing production for the year ended October 31, 2017 resulting in a higher level of under-absorbed fixed costs.

As of October 31, 2017, product sales backlog totaled approximately $31.3 million compared to $24.9 million as of October 31, 2016.


Service and License Revenues

Our service agreements and license revenues and associated cost of revenues for the years ended October 31, 2017 and 2016 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

Service and license revenues

 

$

27,050

 

 

$

31,491

 

 

$

(4,441

)

 

 

(14

)%

Cost of service and license revenues

 

 

25,285

 

 

 

32,592

 

 

 

(7,307

)

 

 

(22

)%

Gross profit (loss) from service and

   license revenues

 

$

1,765

 

 

$

(1,101

)

 

$

2,866

 

 

 

260

%

Service and license revenues gross

   margin

 

 

6.5

%

 

 

(3.5

)%

 

 

 

 

 

 

 

 

Revenues for the year ended October 31, 2017 from service agreements and license fee and royalty agreements totaled $27.1 million, compared to $31.5 million for the prior year.  The decrease related primarily to fewer module exchanges under service agreements performed in 2017.  Revenue for license fee and royalty agreements totaled $2.7 million and $6.2 million for the years ended October 31, 2017 and 2016, respectively, due to lower royalties recognized.  The Company’s license and royalty agreements with POSCO Energy included a minimum royalty which expired in December 2016.

Service agreements and license cost of revenues decreased to $25.3 million for fiscal year 2017 from $32.6 million for the prior year.  Gross margin for the year ended October 31, 2017 was 6.5% which improved from a gross margin loss of 3.5%.  The improvement in gross margin over the prior year was a result of the fact that the prior year included contract loss accruals recorded in connection with the extension of certain legacy contracts as well as due to changes in estimated costs for certain legacy contracts and charges which were incurred in connection with the termination of service agreements at certain sites.  The fiscal year 2017 gross margin also included MW module replacements with favorable margins.

As of October 31, 2017, service backlog totaled approximately $182.3 million compared to $204.8 million as of October 31, 2016.  Service backlog does not include future royalties or license revenues.  This backlog was for service agreements of up to twenty years and is expected to generate positive margins and cash flows based on then current estimates.

Generation revenues

Generation revenue and related costs for the years ended October 31, 2017 and 2016 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

Generation revenues

 

$

7,233

 

 

$

1,267

 

 

$

5,966

 

 

 

471

%

Cost of generation revenues

 

 

5,076

 

 

 

664

 

 

 

4,412

 

 

 

664

%

Generation revenues gross profit

 

$

2,157

 

 

$

603

 

 

$

1,554

 

 

 

258

%

Generation revenues gross margin

 

 

29.8

%

 

 

47.6

%

 

 

 

 

 

 

 

 

Revenues for the year ended October 31, 2017 from generation totaled $7.2 million, compared to $1.3 million for the prior year period.  Revenues for the year ended October 31, 2017 reflected revenue from electricity generated pursuant to the Company’s PPAs. Cost of generation totaled $5.1 million for the year ended October 31, 2017, compared to $0.7 million for the prior year period.  Gross profit from generation revenues increased to $2.2 million for the year ended October 31, 2017, compared to $0.6 million for the prior year period.  The increases represented the growth in the Company’s operating portfolio.  The reduction in generation revenues gross margin percentage was the result of higher costs and lower revenues from electricity generation on certain plants during the initial startup operation period.  As of October 31, 2017, the Company had 11.2 MW of operating power plants in its portfolio.

As of October 31, 2017, generation backlog totaled approximately $296.3 million compared to $142.5 million as of October 31, 2016.


Advanced Technologies contracts

Advanced Technologies contracts revenue and related costs for the years ended October 31, 2017 and 2016 were as follows:

 

 

Years Ended October 31,

 

 

Change

 

(dollars in thousands)

 

2017

 

 

2016

 

 

$

 

 

%

 

Advanced Technologies contracts

 

$

18,336

 

 

$

12,931

 

 

$

5,405

 

 

 

42

%

Cost of Advanced Technologies contracts

 

 

12,728

 

 

 

11,879

 

 

 

849

 

 

 

7

%

Advanced Technologies contracts gross profit

 

$

5,608

 

 

$

1,052

 

 

$

4,556

 

 

 

433

%

Advanced Technologies contracts gross margin

 

 

30.6

%

 

 

8.1

%

 

 

 

 

 

 

 

 

Advanced Technologies contracts revenue for the year ended October 31, 2017 was $18.3 million, representing an increase of $5.4 million compared to $12.9 million of revenue for the year ended October 31, 2016.  Cost of Advanced Technologies contracts increased to $12.7 million for the year ended October 31, 2017, compared to $11.9 million for the prior year.  Gross profit from Advanced Technologies contracts for the year ended October 31, 2017 was $5.6 million compared to $1.1 million for the year ended October 31, 2016, and gross margin was 30.6% for the year ended October 31, 2017 compared to 8.1% during the prior year period.  The increase in gross margin was related to the timing and mix of contracts then being performed, particularly a higher proportion related to private industry contracts.

At October 31, 2017, Advanced Technologies contract backlog totaled approximately $44.3 million compared to $60.1 million at October 31, 2016.

Administrative and selling expenses

Administrative and selling expenses were $25.9 million for the year ended October 31, 2017 compared to $25.2 million for the year ended October 31, 2016.  The increase resulted primarily from higher business development costs incurred.  Business development costs may vary from period to period depending on the nature and frequency of customer and state-level requests for proposals.

Research and development expenses

Research and development expenses decreased $0.4 million to $20.4 million for the year ended October 31, 2017, compared to $20.8 million during the year ended October 31, 2016.

Restructuring expense

Restructuring expense of $1.4 million was recorded for the year ended October 31, 2017, relating to personnel separation costs from the business restructuring that was undertaken to reduce costs and align production levels with the level of production needs at the time.

Loss from operations

Loss from operations for the year ended October 31, 2017 was $44.9 million compared to $46.4 million for the year ended October 31, 2016, primarily as a result of higher gross margins in fiscal year 2017, which were partially offset by higher operating expenses primarily for restructuring expense.

Interest expense

Interest expense for the years ended October 31, 2017 and 2016 was $9.2 million and $5.0 million, respectively.  The increase resulted from borrowings under the Company's Loan and Security Agreement with Hercules and interest expense related to sale-leaseback transactions recorded under the finance method.  The interest expense for the years ended October 31, 2017 and 2016 includes interest for the amortization of the redeemable preferred stock of a subsidiary fair value discount of $2.0 million and $1.8 million, respectively.


Other income, net

Other income, net, was $0.2 million for the year ended October 31, 2017 compared to other income, net of $0.6 million for the year ended October 31, 2016. Unrealized foreign exchange (losses) gains aggregated to ($0.7) million and $0.1 million in fiscal years 2017 and 2016, respectively, which primarily related to the preferred stock obligation of our Canadian subsidiary, FCE Ltd. FCE Ltd.'s functional currency is U.S. dollars, while the preferred stock obligation is payable in Canadian dollars.  Refundable research and development tax credits for the years ended October 31, 2017 and 2016 were $0.9 million and $0.4 million, respectively.

Provision for income taxes

We have not paid federal or state income taxes in several years due to our history of net operating losses (“NOLs”), although we have paid income taxes in South Korea. For the year ended October 31, 2017, our provision for income taxes was $0.04 million, compared to $0.5 million in the prior year.  We cannot estimate when production volumes will be sufficient to generate taxable domestic income. Accordingly, as of October 31, 2017, no tax benefit had been recognized for these NOLs or other deferred tax assets as significant uncertainty existed surrounding the recoverability of these deferred tax assets.

As of October 31, 2017, we had $752.7 million of federal NOL carryforwards that expire in the years 2019 through 2037 and $414.7 million in state NOL carryforwards that expire in the years 2018 through 2037.  Additionally, we had $11.6 million of state tax credits available, of which $0.6 million expires in 2018. The remaining credits do not expire.

Net loss attributable to noncontrolling interest

The net loss attributed to the noncontrolling interest for the year ended October 31, 2016 was $0.3 million.  During October 2016, the Company purchased the noncontrolling interest in FuelCell Energy Services, GmbH, from Fraunhofer IKTS, giving the Company sole ownership and eliminating future noncontrolling interest.

Preferred Stock dividends

Dividends recorded and paid on the Series B Preferred Stock were $3.2 million in each of the years ended October 31, 2017 and 2016.

Net loss attributable to common stockholders and loss per common share  

Net loss attributable to common stockholders represents the net loss for the period, less the net loss attributable to noncontrolling interest and less the preferred stock dividends on the Series B Preferred Stock.  For the years ended October 31, 2017 and 2016, net loss attributable to common stockholders was $57.1 million and $54.2 million, respectively, and basic and diluted loss per common share was $1.14 and $1.82, respectively.

LIQUIDITY AND CAPITAL RESOURCES

As

Cash, cash equivalents and restricted cash totaled $39.8 million as of October 31, 2018, we believe that our cash, cash equivalents on hand, cash flows from operating activities, availability under our loan facilities and access2019 compared to debt and capital markets will be sufficient to meet our working capital and capital expenditure needs for at least the next twelve months.


We expect to maintain appropriate cash and debt levels based upon our expected cash requirements for operations, capital expenditures, construction of project assets and principal, interest and dividend payments.  In the future, we may also engage in additional debt or equity financings, including project specific debt financings under existing and new facilities.  We believe that, when necessary, we will have adequate access to the capital markets, although the timing, size and terms of any financing will depend on multiple factors, including market conditions, future order flow and the need to adjust production capacity.  There can be no assurance that we will be able to raise additional capital at the times, in the amounts, or on the terms required for the implementation of our business plan and strategy. In addition, our capital-intensive business model of building generation assets increases the risk that we will be unable to successfully implement our plans, particularly if we do not raise additional capital in the amounts required. If we are unable to raise additional capital at the times or in the amounts required, or on terms favorable to us, our growth potential may be adversely affected and we may have to modify our plans which could include restructuring, workforce reductions, change in production volumes and asset or intellectual property sales. If these strategies are not successful, we may be required to delay, reduce and/or cease our operations.

Cash and cash equivalents including restricted cash totaled $80.2 million as of October 31, 2018, compared to $87.4 million as of October 31, 2017.  As of October 31, 2018:consisting of:

Unrestricted cash and cash equivalents was $39.3 million compared to $49.3of $9.4 million as of October 31, 2017.2019, compared to $39.3 million as of October 31, 2018.

Restricted cash and cash equivalents of $30.3 million, of which $3.5 million was classified as current and $26.9 million was classified as non-current, in each case as of October 31, 2019, compared to $40.9 million of total restricted cash and cash equivalents, of which $5.8 million was classified as current and $35.1 million was classified as non-current, compared to $38.1 million of total restricted cash and cash equivalentsin each case as of October 31, 2017, of which $4.6 million was classified as current and $33.5 million was classified as non-current.2018.

Subsequent

The Company faced significant liquidity challenges in fiscal 2019, which were addressed through a series of actions late in the fiscal year and subsequent to fiscal year end,end. In the second and third quarters of fiscal 2019, management concluded that, as a result of December 31, 2018,the Company’s history of negative cash flows from operating and cash equivalents including restricted cashinvesting activities, negative working capital, aged accounts payable, forbearance agreements with suppliers, and cash equivalents totaled $74.9  million. Unrestricted cashsignificant short-term debt maturities, there was substantial doubt about the Company’s ability to continue as a going concern. To address these issues, we restructured our management team and cash equivalents was $34.7 millionour operations in ways that are intended to support our growth and restricted cashachieve our profitability and cash equivalents was $40.2 million.

sustainability goals. We raised capital under our at-the-market sales plan, which allowed us to pay down our accounts payable and stay current on our forbearance agreements. In addition, to the cashwe repaid a substantial portion of our short-term debt, retired our Series C and cash equivalents described above, the Company has $90.0 million of availability under its project finance loan agreement with Generate Lending, LLC (“Lender”Series D Preferred Stock obligations, entered into new or “Generate Lending”). On December 21, 2018, the Company, through its indirect wholly-owned subsidiary FuelCell Energy Finance II, LLC (“FCEF II” or “Borrower”),amended financing arrangements and entered into a Construction Loan Agreement (the “Agreement” orlicense arrangement with EMRE, which resulted in $10.0 million of up-front proceeds. While some of the “Generate Lending Construction Loan Agreement”) with Generate Lending pursuantindicators of substantial doubt still exist, such as historical losses and negative cash flows, as a result of the previous actions taken by the Company in response to the liquidity challenges that arose in the second and third quarters of fiscal 2019, management has concluded that substantial doubt was alleviated and the Company expects to meet its obligations for at least one year from the date of issuance of these financial statements.  Key definitive agreements which Generate Lending agreed (the “Commitment”) to make available to FCEF IIsupport the Company’s future liquidity position include:

On October 31, 2019, the Company and certain of its subsidiaries as guarantors entered into a $200.0 million senior secured credit facility inwith Orion Energy Partners Investment Agent, LLC, as Administrative Agent and Collateral Agent (the “Agent”), and its affiliates, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., and Orion Energy Credit Opportunities Fund II PV, L.P., as lenders (the “Orion Facility”).  The Orion Facility is structured as a delayed draw term loan to be provided by the lenders.  In conjunction with the closing of the Orion Facility, on October 31, 2019, the Company drew down $14.5 million (the “Initial Funding”). The Company drew down an aggregate principal amountadditional $65.5 million on November 22, 2019 (the “Second Funding”). The Company may draw the remainder of up to $100.0the Orion Facility, $120.0 million, over the first 18 months following the Initial Funding and subject to further Lenderthe Agent’s approval to fund: (i) construction costs, inventory and availableother capital up to $300.0 million if requested by the Company (the “Facility”) to fund the manufacture, construction, installation, commissioning and start-upexpenditures of  stationaryadditional fuel cell projects with contracted cash flows (under PPAs with creditworthy counterparties) that meet or exceed a mutually agreed coverage ratio; and (ii) inventory, working capital, and other costs that may be required to be developeddelivered by the Company on behalfpurchase orders, service agreements, or other binding customer agreements with creditworthy counterparties.

On November 5, 2019, the Company signed a two-year Joint Development Agreement (“JDA”), which was effective as of October 31, 2019, with EMRE, pursuant to which the Company will continue exclusive research and development efforts with EMRE to evaluate and develop new and/or improved carbonate fuel cells to reduce carbon dioxide emissions from industrial and power sources, in exchange for (a) payment of (i) an exclusivity and technology access fee of $5.0 million, (ii) up to $45.0 million for research and development efforts, and (iii) milestone-based payments of up to $10.0 million after certain


technological milestones are met, and (b) certain licenses.  Since the JDA was signed in fiscal year 2020, the associated revenue recognition and backlog will be accounted for in fiscal years 2020 and 2021.

As of Borrower during the Availability Period (as defined below and in the Agreement). Fuel cell projects must meet certain conditions to be determined to be “Approved Projects” under the Facility. The Facility will be comprised of multiple loans to individual Approved Projects (each, a “Working Capital Loan”). Each Working Capital Loan will be sized to the lesser of (i) 100% of the construction budget and (ii) the invested amount that allows Lender to achieve a 10% unlevered, after-tax inefficient internal rate of return. Approved Projects will be funded on a cost incurred basis. FCEF IIOctober 31, 2019, FCE Ltd. or the Company, will contribute any additional equity required to construct an Approved Project on a pari-passu basis with the Working Capital Loans.  The Commitment to provide Working Capital Loans will remain in place for thirty-six months from the date of the Agreement (the “Availability Period”). Working Capital Loans borrowed during the Availability Period for Approved Projects may be outstanding until the achievement of an Approved Project’s Commercial Operation Date, to the extent that such date is after the Availability Period. Interest will accrue at 9.5% per annum, calculated on a 30/360 basis, on all outstanding principal, paid on the first business day of each month.

The initial draw amount under the Facility, funded at closing, was $10 million. The initial draw reflects loan advances for the first Approved Project under the Facility, the Bolthouse Farms 5 MW project in California. Additional drawdowns are expected to take place as the Company completes certain project milestones. The Company expects to use this Facility to fund the constructionguarantor of its utility-scale backlog, including the three projects totaling 39.8 MW with LIPA (as defined below) and the two projects awarded pursuant to the Connecticut DEEP RFP, totaling 22.2 MW.


The Company continues to work with the Connecticut Green Bank to source financing for the construction of the 7.4 MW plant for the Connecticut Municipal Electric Energy Cooperative located on the U.S. Navy submarine base in Groton, CT and the 3.7 MW Triangle Street project in Danbury, CT as well as the acquisition of the 14.9 MW Bridgeport fuel cell park from Dominion Energy. These financings are expected to close in early 2019.

As previously disclosed, on July 30, 2014, the Company’s wholly owned subsidiary, FuelCell Energy Finance, LLC (“FuelCell Finance”), entered into a loan agreement (the “Loan Agreement”) with NRG Energy, Inc. (“NRG”) pursuant to which NRG extended a $40 million revolving construction and term financing facility (the “Loan Facility”) to FuelCell Finance for the purpose of accelerating project development by the Company and its subsidiaries. On December 13, 2018, FuelCell Finance’s wholly owned subsidiary, Central CA Fuel Cell 2, LLC, drew a construction loan advance of $5.8 million under the Loan Facility. This advance will be used to support the completion of construction of the 2.8 MW Tulare BioMAT project in California. This plant is expected to meet its commercial operations date (“COD”) in March 2019.  In conjunction with the December 13, 2018 draw, FuelCell Finance and NRG entered into an amendment to the Loan Agreement (the “Amendment”) to revise the definitions of the terms “Maturity Date” and “Project Draw Period” under the Loan Agreement and to make other related revisions.  Prior to the Amendment, FuelCell Finance and its subsidiaries were able to request draws under the Loan Facility through July 30, 2019 and the Maturity Date of each note under the Loan Facility was five years after the first disbursement under such note.  Pursuant to the Amendment, FuelCell Finance and its subsidiaries were able to request draws only through December 31, 2018 and the Maturity Date of each note is the earlier of (a) March 31, 2019 and (b) the COD (commercial operation date or substantial completion date, as applicable)FCE Ltd.’s payment obligations with respect to the fuel cell project owned bySeries 1 Preferred Shares, was obligated to pay, on or before December 31, 2020, all accrued and unpaid dividends on the borrower under such note.  There are currently no other drawdowns or outstanding balancesSeries 1 Preferred Shares and the balance of the principal redemption price with respect to all of the Series 1 Preferred Shares. Interest under the Loan Facility.

Series 1 Preferred Shares accrued at annual rate of 5%. In addition, we have an effective shelf registration statement on file with the SECholder of the Series 1 Preferred Shares had the right to exchange such shares for issuancefully paid and non-assessable shares of equity and debt securities.

On June 13, 2018,common stock of the Company at certain specified prices, and FCE Ltd. had the option of making dividend payments in the form of common stock of the Company or cash. As of October 31, 2019, the Company did not have sufficient shares available to satisfy these obligations.  On January 20, 2020, the Company, FCE Ltd. and Enbridge entered into an At Market Issuance Sales Agreementa letter agreement (the “Sales“January 2020 Letter Agreement”) with B. Riley FBR, Inc., pursuant to which they agreed to amend the articles of FCE Ltd. relating to and Oppenheimer & Co. Inc. (together,setting forth the “Agents”) to create an at the market equity program under which the Company, from time to time, may offer and sell shares of its common stock having an aggregate offering price of up to $50,000,000 through the Agents. Under the Sales Agreement, the Agent making the sales is entitled to a commission in an amount equal to 3.0%terms of the gross proceeds from such sales. Since entering intoSeries 1 Preferred Shares to: (i) remove the Sales Agreement,provisions of the Company sold 5.7 millionarticles permitting or requiring the issuance of shares of the Company’s common stock at prevailing market prices underin exchange for the Sales Agreement and received gross proceedsSeries 1 Preferred Shares or as payment of $8.0 million and paid $0.9 million of fees and commissions.

On August 27, 2018,amounts due to the Company entered into an Underwriting Agreement with Oppenheimer & Co. Inc. (the “Underwriter”), relating to an underwritten offering (the “Offering”)holders of the Series D1 Preferred Shares.  SubjectShares, (ii) remove certain provisions of the articles relating to the terms and conditions contained in the Underwriting Agreement, the Underwriter agreed to purchase, and the Company agreed to sell, 30,680 Series D Preferred Shares, initially convertible into 22,231,884 shares of the Company’s common stock (without regard to any limitation on conversion set forth in the Series D Certificate of Designation) at an initial conversion price of $1.38 per share, subject to certain adjustments.  The Offering closed on August 29, 2018.  The net proceeds to the Company from the saleredemption of the Series D1 Preferred Stock, after deductingShares, (iii) increase the underwriting discountsannual dividend rate, commencing on January 1, 2020, to 15%, (iv) extend the final payment date for all accrued and commissionsunpaid dividends and Offering expenses payable by the Company, was $25.3 million.  The Company intends to use, and has been using, the net proceedsall return of capital payments (i.e., payments of the Offering for workingprincipal redemption price) from December 31, 2020 to December 31, 2021, (v) clarify when dividend and return of capital project financing,payments are to be made in the future and general corporate purposes.extend the quarterly dividend and return of capital payments through December 31, 2021 (which were previously to be paid each quarter through December 31, 2020), (vi) remove certain terms and provisions of the articles that are no longer applicable, and (vii) make other conforming changes to the articles.

During fiscal year 2017, the Company completed an equity capital raise, which included the issuance of warrants. If all remaining warrants related to this equity offering are exercised in periods subsequent to October 31, 2018, the Company could receive additional cash proceeds of up to $18.5 million.

The Company’s future liquidity will be dependent on obtaining a combinationits ability to (i) timely complete current projects in process within budget, including approved amounts that have been financed as financing does not cover overages, (ii) increase cash flows from its generation portfolio, including by meeting conditions required to timely commence operations of increasednew projects and operating its generation portfolio in compliance with minimum performance guarantees, (iii) obtain approval of and receive funding for project construction under the Orion Facility and meet conditions for release of funds, (iv) increase order and contract volumes, increased cash flows from our generationwhich would lead to additional product sales and service portfoliosservices agreements, (v) obtain funding for and receive payment for research and development under current and future Advanced Technology contracts, including achieving a $5 million technological performance milestone in the JDA during calendar year 2020, and (vi) implement the cost reductions necessary to achieve profitable operations. Our business model requires substantial outside financing arrangements and satisfaction of the conditions of such financing arrangements to deploy our projects and facilitate the growth of our business. If financing is not available to us on acceptable terms if and when needed, if we do not satisfy the conditions of our financing arrangements or if we spend more than the financing approved for projects, we may be required to reduce planned spending, sell assets, seek alternative financing and take other measures, which could have a material adverse effect on our operations.

As of January 14, 2020, we had 14,034,001 shares of common stock available for issuance, of which 10,290,934 shares were reserved for issuance under various convertible securities, options, and warrants, under our stock purchase and incentive plans, and under our at-the-market sales plan.  The limited number of shares available for issuance limits our ability to raise capital in the equity markets and satisfy obligations with shares instead of cash, which could adversely impact our ability to fund our business and operations. We must obtain stockholder approval to increase the number of shares of common stock we are authorized to issue under our Certificate of Incorporation.  At the April 4, 2019 annual meeting of stockholders, our stockholders did not approve our request to increase the number of shares of common stock that we are authorized to issue from 225,000,000 shares to 335,000,000 shares. In the event that the Company’s Board of Directors determines to seek stockholder approval for an increase in authorized shares in the future, there can be no assurances of obtaining such stockholder approval.

While there can be no assurances, we anticipate raising additional required capital from new and existing investors and lenders. We expect to work with lenders and financial institutions to secure long-term debt, tax equity and sale-leasebacks for our project asset portfolio as we achieve the Commercial Operation Dates for these projects. This financing, if received, may allow the Company to recycle capital from these projects by reinvesting the capital in other projects and to pay down the Orion Facility over time. It should be noted that the lenders and the Agent under the Orion Credit Agreement (“Orion”) have broad approval rights over our ability to draw and allocate funds from the


Orion Facility. There can be no assurance that the Company can obtain such financing or that the Company can obtain such financing on terms acceptable to the Company.  If the Company is unable to obtain such financing or raise additional capital, the Company may reduce its expenditures or slow its project spending.  If the Company cannot obtain such financing or cannot obtain such financing on terms acceptable to the Company, it would negatively impact the Company’s business model, operations, and liquidity.

We believe that our cash flows from our existing backlog, including PPAs, service agreements and Advanced Technology contracts, combined with our current unrestricted cash and cash equivalents, cash which is expected to become unrestricted, and available borrowings under the Orion Facility will be sufficient to meet our anticipated cash needs for at least the next 12 months.

Generation/Operating Portfolio, Projects and Backlog

To grow our generation portfolio, the Company will invest in developing and building turn-key fuel cell projects which will be owned by the Company and classified as project assets on the balance sheet. This strategy requires liquidity and is expectedthe Company expects to continue to have increasing liquidity requirements as project sizes increase.increase and more projects are added to backlog. We may commence building project assets upon the award of a project or execution of a multi-year PPA with an end-user that has a strong credit profile.  Project development and construction cycles, which span the time between securing a PPA and commercial operation of the plant, vary substantially and can take years. As a result of these project cycles


and strategic decisions to finance the construction of certain projects, we may need to make significant up-front investments of resources in advance of the receipt of any cash from the sale or long-term financing of such projects. These up-front investments may include using our working capital, availability under our construction financing facilities or other financing arrangements. Delays in construction progress and completing current projects in process within budget, or in completing financing or the sale of our projects may impact our liquidity.liquidity in a material way.

Our operating portfolio (11.2(26.1 MW as of October 31, 2018)2019) contributes higher long-term cash flows to the Company than if these projects had been sold. These projects currently generate $7 - $8approximately $22.0 million per year in annual revenue.revenue depending on plant output, operations performance and site conditions. The Company plans to continue to grow this portfolio while also selling projects to investors.  As of October 31, 2018,2019, the Company had projects representing an additional 43.347.1 MW under development and construction, which projects are expected to generate operating cash flows in future periods. These totals do not include the 39.8 MW Long Island Power Authority (“LIPA”) project awards, which are not yet in backlog. Including the LIPA awards, the projects in process totaled 83.1 MW as of October 31, 2018.  We expect these projects, which include the LIPA awards, to generate an additional $70 - $80 million of annual recurring revenue once they become operational. Retaining long-term cash flow positive projects, combined with our service fleet, reducesis expected to result in reduced reliance on new project sales to achieve cash flow positive operations.operations, however, operations and performance issues could impact results. The Company expects to finance the construction of the projects still under development and construction using proceeds from the Orion Facility, subject to lender approval, satisfaction of conditions for release of funding, including third party consents, and keeping project costs within approved budgets. We have worked with and are continuing to work with lenders and financial institutions to secure long-term debt, tax equity and sale-leasebacks for our project asset portfolio, as well as Generate Lendingbut there can be no assurance that such financing can be attained, or that, if attained, it will be retained and NRG for construction period financing.sufficient. As of October 31, 2018,2019, we have financed four projects through sale-leaseback transactions.  As of October 31, 2018,2019, total financing obligations and debt outstanding related to project assets was $46.1$85.1 million.  Future required payments totaled $67.5 million as of October 31, 2019. The outstanding financing obligation under the sale-leaseback transactions includes an embedded gain, which will be recognized at the end of the lease term.

Our operating portfolio provides the Company with the full benefit of future cash flows.flows, net of any debt service requirements.


The following table summarizes our operating portfolio as of October 31, 2018:2019:

 

Project Name

 

Location

 

Power Off-Taker

 

Rated

Capacity

(MW)

 

Actual

Commercial

Operation Date

(FuelCell

Energy Fiscal

Quarter)

 

PPA

Term

(Years)

 

Location

 

Power Off-Taker

 

Rated

Capacity

(MW)

 

Actual

Commercial

Operation Date

(FuelCell

Energy Fiscal

Quarter)

 

PPA

Term

(Years)

Central CT State University (“CCSU”)

 

New Britain, CT

 

CCSU (CT University)

 

1.4

 

Q2 ‘12

 

10

 

New Britain, CT

 

CCSU (CT University)

 

1.4

 

Q2 ‘12

 

10

UCI Medical Center (“UCI”)

 

Orange, CA

 

UCI (CA University Hospital)

 

1.4

 

Q1 '16

 

19

 

Orange, CA

 

UCI (CA University Hospital)

 

1.4

 

Q1 '16

 

19

Riverside Regional Water Quality Control Plant

 

Riverside, CA

 

City of Riverside (CA Municipality)

 

1.4

 

Q4 '16

 

20

 

Riverside, CA

 

City of Riverside (CA Municipality)

 

1.4

 

Q4 '16

 

20

Pfizer, Inc.

 

Groton, CT

 

Pfizer, Inc.

 

5.6

 

Q4 '16

 

20

 

Groton, CT

 

Pfizer, Inc.

 

5.6

 

Q4 '16

 

20

Santa Rita Jail

 

Dublin, CA

 

Alameda County, California

 

1.4

 

Q1 '17

 

20

 

Dublin, CA

 

Alameda County, California

 

1.4

 

Q1 '17

 

20

Bridgeport Fuel Cell Project

 

Bridgeport, CT

 

Connecticut Light and Power Company (CT Utility)

 

14.9

 

Q1 '13

 

15

 

 

 

Total MW Operating:

 

11.2

 

 

 

 

 

 

 

Total MW Operating:

 

26.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


In May 2019, we closed on the acquisition of the 14.9 MW Bridgeport Fuel Cell Project in Bridgeport, Connecticut from Dominion Generation, Inc. We own and operate the Bridgeport Fuel Cell Project as part of our generation portfolio, which is included in the table above. The total cash consideration paid was $35.5 million. We funded the acquisition with a combination of third party financing and $15.0 million of restricted cash on hand that was tied to the project and released at closing. Liberty Bank and Fifth Third Bank jointly provided the senior project-level debt facility of $25.0 million, while the Connecticut Green Bank provided additional subordinated capital.  The PPA term runs through December 2028.

The following table summarizes projects in process as of October 31, 2018:

Project Name

 

Location

 

Power Off-Taker

 

Rated

Capacity

(MW)

 

 

Estimated

Commercial

Operation Date

(FuelCell Energy

Fiscal Quarter)

 

PPA

Term

(Years)

Triangle St

 

Danbury, CT

 

Eversource (CT Utility)

 

3.7

 

 

Q1 '19

 

Tariff

Tulare BioMAT

 

Tulare, CA

 

PG&E CA (CA Utility)

 

2.8

 

 

Q2 '19

 

20

Bolthouse Farms

 

Bakersfield, CA

 

Bolthouse Farms (Campbell's)

 

 

   5.0

 

 

Q3 '19

 

20

Groton Sub Base

 

Groton, CT

 

CMEEC (CT Electric Co-op)

 

7.4

 

 

Q4 '19

 

20

Toyota

 

Los Angeles, CA

 

Southern California Edison; Toyota

 

2.2

 

 

Q3 '20

 

20

LIPA 1

 

Long Island, NY

 

PSEG / LIPA, LI NY (Utility)

 

7.4

 

 

Q3 '20

 

20

LIPA 2

 

Long Island, NY

 

PSEG / LIPA, LI NY (Utility)

 

18.5

 

 

Q4 '20

 

20

LIPA 3

 

Long Island, NY

 

PSEG / LIPA, LI NY (Utility)

 

13.9

 

 

Q1 '21

 

20

CT RFP-1

 

Hartford, CT

 

Eversource (CT Utility)

 

7.4

 

 

Q4 '21

 

20

CT RFP-2

 

Derby, CT

 

United Illuminating (CT Utility)

 

14.8

 

 

Q2 '21

 

20

 

 

 

 

Total MW in Process:

 

83.1

 

 

 

 

 

The Company had a contract backlog totaling approximately $1.2 billion as of October 31, 2018.  The Company also had project awards with respect to 39.8 MW of LIPA projects totaling an additional $792.5 million, resulting in total backlog and awards of approximately $2.0 billion as of October 31, 2018. On December 19, 2018, one LIPA PPA totaling 7.4 MW was executed and was included in backlog. The remaining PPAs are expected to be executed in the first half of fiscal year 2019.

On August 28, 2018, the Company sold a 1.4 MW project previously classified as Generation backlog.  The Company also executed a service agreement with the customer, which was added to backlog as of October 31, 2018. The services backlog will be recognized as recurring revenue over the 15-year project term of our service agreement.2019:

Project Name

 

Location

 

Power Off-Taker

 

Rated

Capacity

(MW)

 

Estimated

Commercial

Operation Date

(FuelCell

Energy Fiscal

Quarter)

 

PPA

Term

(Years)

Triangle St

 

Danbury, CT

 

Tariff - Eversource (CT Utility)

 

3.7

 

Q1 '20

 

Tariff

Tulare BioMAT

 

Tulare, CA

 

Southern California Edison (CA Utility)

 

2.8

 

Q1 '20

 

20

Groton Sub Base

 

Groton, CT

 

CMEEC (CT Electric Co-op)

 

7.4

 

Q3 '20

 

20

Toyota

 

Los Angeles, CA

 

Southern California Edison; Toyota

 

2.2

 

Q4 '22

 

20

San Bernardino

 

San Bernardino, CA

 

City of San Bernardino Municipal Water Department

 

1.4

 

Q2 '21

 

20

LIPA 1

 

Long Island, NY

 

PSEG / LIPA, LI NY (Utility)

 

7.4

 

Q1 '21

 

20

CT RFP-1

 

Hartford, CT

 

Eversource/United Illuminating (CT Utilities)

 

7.4

 

Q3 '21

 

20

CT RFP-2

 

Derby, CT

 

Eversource/United Illuminating (CT Utilities)

 

14.8

 

Q2 '21

 

20

 

 

 

 

Total MW in Process:

 

47.1

 

 

 

 


Backlog by revenue category is as follows:

 

Services and license backlog totaled $316.0$192.3 million as of October 31, 20182019, compared to $182.3$251.7 million as of October 31, 2017.2018.  Services backlog includes future contracted revenue from routine maintenance and scheduled module exchanges for power plants under service agreements.

Generation backlog totaled $1.1 billion as of October 31, 2019, compared to $839.5 million as of October 31, 2018 compared to $296.3 million as of October 31, 2017.2018.  Generation backlog represents future contracted energy sales under contracted PPAs between the Company and the end-user of the power. During the quarter ended October 31, 2019, the Bolthouse Farms Project (with a prior backlog value of $40.3 million) was removed from backlog because management has decided to pursue termination of the PPA given recent regulatory changes impacting the future cost profile for the Company and Bolthouse Farms.

Product sales backlog totaled $1.0 thousand$1,000 as of October 31, 2018 compared to $31.3 million2018.   There was no product backlog as of October 31, 2017.2019.

Advanced Technologies contract backlog totaled $12.0 million as of October 31, 2019 compared to $32.4 million as of October 31, 2018 compared to $44.3 million as of October 31, 2017.2018.

Backlog represents definitive agreements executed by the Company and our customers. Projects with respect tofor which the Company intends to retain ownershipwe have a PPA are included in generation backlog, which represents future revenue under long-term PPAs.  Projects sold to customers (and not retained by the Company) are included in product sales and service backlog. Project awards referenced bybacklog and the Company are notifications that the Company has been selected, typically through a competitive bidding process, to enter into definitive agreements. These awards have been publicly disclosed.  The Companyrelated generation backlog is working to enter into definitive agreements with respect to these project awards and,removed upon execution of a definitive agreement with respect to a project award, that project award will become backlog. Project awards that were not included in backlog as of October 31, 2018 include the 39.8 MW LIPA project awards (which are expected to become generation backlog). These awards in total represent approximately $792.5 million of future revenue potential over the life of the projects, assuming the Company retains ownership of the projects.  If the Company were to sell such projects, the backlog amount would be decreased (in an amount determined by thesale.


negotiated sales price at the time of sale) and would consist of product sales to be recognized over a one to two year period and service revenue to be recognized over a twenty year term.

Factors that may impact our liquidity in fiscal year 20192020 and beyond include:

TimingWhile the Company has access to the $200.0 million Orion Facility to finance construction of its generation portfolio, the timing, availability and allocation of any new draws beyond the $80.0 million which has been funded under the Orion Facility are at the discretion of the lenders, which may negatively impact the Company’s liquidity as well as its ability to complete various construction projects. In addition, we expect to work with lenders and financial institutions to secure long-term debt, tax equity and sale-leasebacks for our project awardsasset portfolio as we achieve the Commercial Operation Dates for these projects. This financing, if received, may allow the Company to recycle capital from these projects by reinvesting the capital in other projects and factory production rate. Theto pay down the Orion Facility over time. It should be noted that Orion has broad approval rights over our ability to draw and allocate funds from the Orion Facility. There can be no assurance that the Company bidscan obtain such financing or that the Company can obtain such financing on terms acceptable to the Company.  If the Company cannot obtain such financing or cannot obtain such financing on terms acceptable to the Company, it would negatively impact the Company’s business, business model, operations, and liquidity.

We bid on large projects in diverse markets that can have long decision cycles and uncertain outcomes.  The Company managesWe manage production rate based on expected demand and projects schedules. Changes to production rate take time to implement. In fiscal 2018,conjunction with and following the Company began to increase itsreorganization and reduction in workforce in April 2019, we reduced our production rate from a levelto approximately 2 MW, which has resulted in an annualized production rate through October 31, 2019 of 25 MW and17 MW.   The annualized production rate as of December 31, 2018 theJanuary 2020 is 25 MW.  The Company will evaluate future increases in production run-rate was approximately 35 MW on an annualized basis.rate if and when warranted by business conditions.

As project sizes and the number of projects evolve, project cycle times may increase. We may need to make significant up-front investments of resources in advance of the receipt of any cash from the sale of our projects. These amounts include development costs, interconnection costs, posting of letters of credit, bonding or other forms of security, and incurring engineering, permitting, legal, and other expenses. 

The amount of accounts receivable and unbilled receivables as of October 31, 20182019 and October 31, 20172018 was $14.5 million ($3.5 million of which is classified as “Other assets”) and $32.4 million ($9.4 million of which is classified as “Other assets”) and $81.3 million ($12.8 million of which is classified as “Other assets”), respectively. Included in accounts receivable as of October 31, 2018 and October 31, 2017 was $23.1 million and $38.3 million, respectively, of unbilled accounts receivable. Unbilled accounts receivable represents revenue that has been recognized in advance of billing the customer under the terms of the underlying contracts. Such costs have been funded with working capital and the unbilled amounts are expected to be billed and collected from customers once we meet the billing criteria under the contracts.  Our accounts receivable balances may fluctuate as of any balance sheet date depending on the timing of individual contract milestones and progress on completion of our projects.


The amount of total inventory as of October 31, 2019 and October 31, 2018 was $56.7 million ($2.2 million is classified as long-term inventory) and $53.6 million (none of which is classified as long-term inventory), respectively, which includes work in process inventory totaling $31.2 million and $29.1 million, respectively. Work in process inventory can generally be deployed rapidly while the balance of our inventory requires further manufacturing prior to deployment.  To execute on our business plan, we must produce fuel cell modules and procure BOP components in required volumes to support our planned construction schedules and potential customer contractual requirements. As a result, we may manufacture modules or acquire BOP components in advance of receiving payment for such activities. This may result in fluctuations in inventory and in use of cash as of any given balance sheet date. 

The amount of total inventory as of October 31, 2018 and October 31, 2017 was $53.6 million and $74.5 million, respectively, which includes work in process inventory totaling $29.1 million and $54.4 million, respectively. Work in process inventory can generally be deployed rapidly while the balance of our inventory requires further manufacturing prior to deployment.  As we continue to execute on our business plan, we must produce fuel cell modules and procure balance of plant (“BOP”) components in required volumes to support our planned construction schedules and potential customer contractual requirements. As a result, we may manufacture modules or acquire BOP in advance of receiving payment for such activities. This may result in fluctuations of inventory and use of cash as of any balance sheet date. 

The amount of total project assets as of October 31, 20182019 and October 31, 20172018 was $99.6$144.1 million and $73.0$99.6 million, respectively. Project assets consist of capitalized costs for fuel cell projects that are either operating and producing revenue or are under construction.  Project assets as of October 31, 20182019 consisted of $28.6$59.2 million of completed, operating installations currently operating and $71.0$84.9 million of projects in development.  As of October 31, 2018,2019, we had 11.226.1 MW of our operating project assets that generated $7.2$14.0 million of revenue in fiscal 2018.year 2019.  Also, as of October 31, 2018,2019, the Company had an additional 83.147.1 MW under development and construction, some of which is expected to generate operating cash flows in fiscal year 2019. We expect this portfolio to continue to grow.2020.

Under the terms of certain contracts, the Company will provide performance security for future contractual obligations. As of October 31, 2018,2019, we had pledged approximately $40.9$6.7 million of our cash and cash equivalents as collateral for performance security and for letters of credit for certain banking requirements and contracts. This balance may increase with a growing backlog and installed fleet.

For fiscal year 2019,2020, we forecast capital expenditures in the range of approximately $2.0 to $4.0 million compared to $10.0capital expenditures of $2.2 million in fiscal year 2018.2019.  Capital expenditures for fiscal year 2019 reflectreflected the completion of the Company’s conditioning facility at its Torrington manufacturing plant and maintenance capital expenditures.  Over the past two years, we have completed the expansion of our 65,000 square foot manufacturing facility in Torrington, Connecticut by adding approximately 102,000 square feet for a total size of 167,000 square feet.  Initially, this additional space will be used to enhance and streamline logistics functions through consolidation of satellite warehouse locations and will provide the space needed to reconfigure the existing production process to improve manufacturing efficiencies and realize cost savings.  Investments in 2019 are expected to include finalizing the addition of module conditioning capacity to our Torrington facility. Commissioning is expected to be completed in the first quarter of fiscal year 2019, leading to expected logistics, time and cost savings as modules are currently shipped to our Danbury, Connecticut facility for conditioning.


Cash Flows

Cash and cash equivalents and restricted cash and cash equivalents totaled $39.8 million as of October 31, 2019 compared to $80.2 million as of October 31, 2018 compared to $87.4 million as of October 31, 2017.2018.  As of October 31, 2018,2019, restricted cash and cash equivalents was $30.3 million, of which $3.5 million was classified as current and $26.9 million was classified as non-current, compared to $40.9 million total restricted cash and cash equivalents as of October 31, 2018, of which $5.8 million was classified as current and $35.1 million was classified as non-current, compared to $38.1 million total restricted cash and cash equivalents as of October 31, 2017, of which $4.6 million was classified as current and $33.5 million was classified as non-current.

The following table summarizes our consolidated cash flows:

 

 

2018

 

 

2017

 

 

2016

 

(dollars in thousands)

 

2019

 

 

2018

 

 

2017

 

Consolidated Cash Flow Data:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net cash provided by (used in)

operating activities

 

$

16,322

 

 

$

(71,845

)

 

$

(46,595

)

Net cash (used in) provided by operating activities

 

$

(30,572

)

 

$

16,322

 

 

$

(71,845

)

Net cash used in investing activities

 

 

(51,260

)

 

 

(31,444

)

 

 

(41,452

)

 

 

(69,300

)

 

 

(51,260

)

 

 

(31,444

)

Net cash provided by financing activities

 

 

27,717

 

 

 

72,292

 

 

 

120,658

 

 

 

59,655

 

 

 

27,717

 

 

 

72,292

 

Effects on cash from changes in foreign currency

rates

 

 

12

 

 

 

129

 

 

 

(35

)

 

 

(244

)

 

 

12

 

 

 

129

 

Net (decrease) increase in cash and cash

equivalents

 

$

(7,209

)

 

$

(30,868

)

 

$

32,576

 

Net decrease in cash and cash equivalents

 

$

(40,461

)

 

$

(7,209

)

 

$

(30,868

)

 

The key components of our cash inflows and outflows were as follows:

Operating Activities – Net cash used in operating activities was $30.6 million during fiscal year 2019 compared to $16.3 million provided by operating activities was $16.3 million during fiscal year 2018 compared toand $71.8 million used in operating activities during fiscal year 2017.  

Net cash used in operating activities during fiscal year 2019 was primarily the result of the net loss of $77.6 million and increases in inventory of $6.4 million and unbilled receivables of $4.5 million.  These amounts were offset by increases in deferred revenue of $6.0 million and accrued liabilities of $2.4 million, decreases in accounts receivable of $4.8 million and other assets of $2.1 million and net non-cash adjustments of $42.7 million.


Net cash provided by operating activities during fiscal year 2018 was primarily the result of decreases in accounts receivable of $48.7 million, inventories of $31.7 million, deferred revenue of $1.3 million and net non-cash activity of $15.4 million.  Accounts receivable and inventory decreased primarily as a result of cash received and inventory delivered under the HYD contract.  TheThese amounts were offset by the net loss of $47.3 million for fiscal year 2018, decreases in accounts payable of $19.8 million and accrued liabilities of $11.3 million, and an increase in other assets of $2.3 million.

Net cash used in operating activities during fiscal year 2017 was primarily a result of the net loss of $53.9 million, increases in accounts receivable of $51.3 million and inventory of $8.0 million, and decreases in accrued liabilities of $2.3 million and deferred revenue of $0.9 million.  The decreases were offset by non-cash activity of $20.2 million and an increase in accounts payable of $25.0 million.

Investing Activities – Net cash used in investing activities was $69.3 million during fiscal year 2019 compared to net cash used in investing activities of $51.3 million during fiscal year 2018 compared toand net cash used in investing activities of $31.4 million during fiscal year 2017.

Net cash used in investing activities during fiscal year 2019 included the purchase by the Company of all of the outstanding membership interests in Bridgeport Fuel Cell, LLC (“BFC”), the owner of the 14.9 MW Bridgeport Fuel Cell Project, for $35.5 million, $31.7 million invested in project assets to expand our operating portfolio and $2.2 million for capital expenditures.

Net cash used in investing activities during fiscal year 2018 included a $41.2 million investment in project assets to expand our operating portfolio and $10.0 million for capital expenditures.

Net cash used in investing activities during fiscal year 2017 included a $19.7 million investment in project assets to expand our operating portfolio and $12.4 million for capital expenditures which was primarily for the substantial completion of the Torrington facility expansion.  Net cash used for the year was offset by cash received in connection with an asset acquisition of $0.6 million.

Financing Activities - Net cash provided by financing activities was $27.7$59.7 million during fiscal year 20182019 compared to $27.7 million in fiscal year 2018 and $72.3 million in fiscal year 2017.

Net cash provided by financing activities during fiscal year 2019 resulted from the receipt of $69.6 million of debt proceeds, which included $26.7 million to acquire all of the membership interest in BFC, $14.5 million from the Orion Facility and the reminder related to project level financings offset by debt repayments of $48.4 million, the payment of deferred financing costs of $3.3 million and the payment of preferred dividends and return of capital of $1.8 million.  The sale of common stock during fiscal year 2019 resulted in proceeds, net of fees, of $43.6 million.

Net cash provided by financing activities during fiscal year 2018 resulted from net proceeds of $25.3 million received in connection with the offering and issuance of the Series D Preferred Stock, the receipt of $13.1 million under the amended Hercules Loanloan and Security Agreementsecurity agreement with Hercules and net proceeds received of $10.5 million from warrant exercises


and sales of our common stock under the At Market Issuance Sales Agreement entered into with B. Riley FBR, Inc. and Oppenheimer & Co. Inc. on June 13, 2018, offset by cash payments of $16.6 million primarily relating to repayments under the Hercules Loanloan and Security Agreementsecurity agreement with Hercules and the payment of preferred dividends and the return of capital of $4.2 million.

Net cash provided by financing activities during fiscal year 2017 included net proceeds received from the issuance of the Series C preferred shares of $27.9 million, cash received from a common stock offering of $14.2 million, cash received from warrant exercises of $12.7 million, and net proceeds from open market sales of common stock of $12.6 million.  Net cash provided by financing activities also included $17.9 million of net proceeds from debt primarily relating to a sale-leaseback transaction with PNC.PNC Energy Capital, LLC (“PNC”).  Cash received was offset by the repayment of debt of $8.6 million, and the payment of preferred dividends and the return of capital of $4.2 million.


Commitments and Significant Contractual Obligations

A summary of our significant future commitments and contractual obligations as of October 31, 20182019 and the related payments by fiscal year is summarized as follows:

 

 

Payments Due by Period

 

(dollars in thousands)

 

Payments Due by Period

 

 

 

 

 

 

Less than

 

 

1 - 3

 

 

3 - 5

 

 

More Than

 

 

 

 

 

 

Less than

 

 

1 - 3

 

 

3 - 5

 

 

More Than

 

Contractual Obligations

 

Total

 

 

1 year

 

 

years

 

 

years

 

 

5 years

 

 

Total

 

 

1 year

 

 

years

 

 

years

 

 

5 years

 

Purchase commitments (1)

 

$

63,984

 

 

$

57,670

 

 

$

6,223

 

 

$

91

 

 

$

 

 

$

34,553

 

 

$

32,053

 

 

$

2,478

 

 

$

22

 

 

$

 

Series 1 Preferred obligation (2)

 

 

5,287

 

 

 

952

 

 

 

4,335

 

 

 

 

 

 

 

 

 

5,039

 

 

 

1,662

 

 

 

3,377

 

 

 

 

 

 

 

Term loans (principal and interest)

 

 

49,034

 

 

 

16,812

 

 

 

16,240

 

 

 

4,932

 

 

 

11,050

 

Term and Construction loans (principal and interest) (3)

 

 

84,413

 

 

 

22,189

 

 

 

20,900

 

 

 

20,474

 

 

 

20,662

 

Capital and operating lease commitments (3)(4)

 

 

5,889

 

 

 

1,078

 

 

 

1,051

 

 

 

756

 

 

 

3,004

 

 

 

13,973

 

 

 

1,024

 

 

 

2,500

 

 

 

1,742

 

 

 

8,707

 

Sale-leaseback financing obligation (4)(5)

 

 

21,229

 

 

 

3,717

 

 

 

6,771

 

 

 

4,616

 

 

 

6,125

 

 

 

17,512

 

 

 

3,560

 

 

 

5,564

 

 

 

4,528

 

 

 

3,860

 

Option fee (5)(6)

 

 

550

 

 

 

250

 

 

 

300

 

 

 

 

 

 

 

 

 

300

 

 

 

150

 

 

 

150

 

 

 

 

 

 

 

Series B Preferred dividends payable (6)(7)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total

 

$

145,973

 

 

$

80,479

 

 

$

34,920

 

 

$

10,395

 

 

$

20,179

 

 

$

155,790

 

 

$

60,638

 

 

$

34,969

 

 

$

26,766

 

 

$

33,229

 

 

(1)

Purchase commitments with suppliers for materials, supplies and services incurred in the normal course of business.

(2)

As of October 31, 2019: The terms of the Class A Cumulative Redeemable Exchangeable Preferred Share Agreement (the “SeriesSeries 1 Preferred Share Agreement”) requireShares required payments of (i) an annual amount of Cdn. $500,000 for dividends and (ii) an annual amount of Cdn. $750,000 as return of capital payments payable in cash. These payments willwere scheduled to end on December 31, 2020. Dividends accrueaccrued at a 1.25 percent1.25% quarterly rate on the unpaid principal balance, and additional dividends will accrueaccrued on the cumulative unpaid dividends at a rate of 1.25 percent1.25% per quarter, compounded quarterly. On December 31, 2020, theThe amount of all accrued and unpaid dividends on the Series 1 Preferred Shares of Cdn. $21.1 million as of October 31, 2019 and the balance of the principal redemption price of Cdn. $4.4 million willas of October 31, 2019 were scheduled to be duepaid to the holders of the Series 1 Preferred Shares. The Company hasShares on December 31, 2020. In addition, FCE Ltd. had the option of making dividend payments in the form of cash or shares of the Company’s common stock or cash under terms outlined in the Series 1 Preferred Share Agreement.stock. For purposes of preparing the above table, the final balance of accrued and unpaid dividends due December 31, 2020 of Cdn. $21.1 million iswas assumed to be paid in the form of common stock and not included in this table.table, however, the Company did not have sufficient authorized and unissued shares of common stock to make such payment as of October 31, 2019.  On January 20, 2020, the Company, FCE Ltd. and Enbridge entered into a letter agreement, pursuant to which they agreed to amend the articles of FCE Ltd. relating to and setting forth the terms of the Series 1 Preferred Shares to modify certain terms of the Series 1 Preferred Shares.  Refer to Note 23. “Subsequent Events” for additional information regarding such letter agreement and such modified terms.  

(3)

The Company has certain corporate and project finance term and construction loans outstanding, the terms of which are further summarized below.

(4)

Future minimum lease payments on capital and operating leases.

(4)(5)

The amount represents payments due on sale-leaseback transactions of our wholly-owned subsidiaries, under their respective financing agreements with PNC.  Lease payments under this facilitythese sale-leasebacks are generally payable in fixed quarterly installments over a ten-year period.

(5)(6)

The Company entered into an agreement with a customer on June 29, 2016 that includes a fee for the purchase of the plants at the end of the term of the agreement.  The fee is payable in installments over the term of the agreement.

(6)(7)

We pay $3.2 million in annual dividends, if and when declared, on our Series B Preferred Stock. The $3.2 million annual dividend payment, if declared, has not been included in this table as we cannot reasonably determine when or if we will be able to convert the Series B Preferred Stock into shares of our common stock. We may, at our option, convert these shares into the number of shares of our common stock that are issuable at the then prevailing conversion rate if the closing price of our common stock exceeds 150 percent150% of the then prevailing conversion price ($1411,692 per share at October 31, 2018)2019) for 20 trading days during any consecutive 30 trading day period.

 


Term and Construction Loans

Webster Bank Loan. In November 2016, the Company’sour wholly-owned subsidiary, FuelCell Energy Finance, LLC (“FuelCell Finance”), entered into a membership interest purchase agreement with GW Power LLC (“GWP”) whereby FuelCell Finance purchased all of the outstanding membership interests in New Britain Renewable Energy, LLC (“NBRE”) from GWP.  GWP assigned the NBRE interestinterests to FuelCell Finance free and clear of all liens other than a pledge in favor of Webster Bank, National Association (“Webster Bank”).  FuelCell Finance assumed the debt outstanding withto Webster Bank in the amount of $2.3 million.million (the “Webster Facilities”).  The term loan interest rate iswas 5.0% per annum and payments, which commenced in January 2017, were due on a quarterly basis commenced in January 2017.basis.  The balance outstanding as of October 31, 20182019 was $1.1$0.5 million.  This balance was paid off subsequent to October 31, 2019 with proceeds from the Orion Facility, and the Webster Facilities were terminated.

State of Connecticut Loan. In April 2016,October 2015, the Company entered into a loan and security agreement (the “Hercules Agreement”) with Hercules Capital, Inc. (“Hercules”) for a loan with an aggregate principal amount of up to $25.0 million, subject to certain terms and conditions.  The Company received an initial term loan advance on the date of closing of $15.0 million and an additional $5.0 million in September 2016.  The loan was a 30 month secured facility. The term loan interest rate was previously 9.75% per annum and increased to 10.0% per annum during the three months ended January 31, 2018 as a result of the increase in the prime rate.  In addition to interest, which is paid on a monthly basis, principal payments commenced on November 1, 2017 in equal monthly installments.   The loan balance and all accrued and unpaid interest was due and payable by October 1, 2018.  Under the terms of the Hercules Agreement, there was an end of term charge of $1.7 million also due and paid October 31, 2018.

The Hercules Agreement was amended on September 5, 2017, October 27, 2017, March 28, 2018, August 29, 2018 and December 19, 2018.  The March 28, 2018 Amendment (the “March Amendment”) allowed the Company to draw a term loan advance of $13.1 million.  The aggregate amount outstanding, which included the amount outstanding under the original Hercules Agreement of $11.9 million and the term loan advance under the March Amendment, was $25.0 million as of October 31, 2018.  The term loan maturity date is April 1, 2020.  Payments for the aggregate amount outstanding are interest only for the initial 12-month period, followed by equal monthly installments of principal and interest until the term loan maturity date and the term loan interest rate was 10.15% per annum which increased to 10.40% in June 2018 and to 10.65% in September 2018 as a result of the increases in the prime rate.  The term loan interest rate is the greater of either (i) 9.90% plus the prime rate minus 4.50%, and (ii) 9.90%.  The end of term charge of $1.7 million was paid on October 1, 2018.  An additional end of term charge of $0.9 million will be due on April 1, 2020.  The end of term charge is being accreted over a 30-month term.  

As collateral for obligations under the Hercules Agreement, as amended, the Company granted Hercules a security interest in FuelCell Energy, Inc.’s existing and thereafter-acquired assets except for intellectual property and certain other excluded assets.  The collateral does not include assets held by FuelCell Finance or any project subsidiary thereof. The Company may continue to collateralize and finance its project subsidiaries through other lenders and partners.  Under the Hercules Agreement, as amended, there is a minimum cash covenant which requires the Company to maintain an unrestricted cash balance in accounts subject to an account control agreement in favor of Hercules of at least the greater of (a) 75% of the outstanding loan balance plus (b) the amount of accounts payable (as defined under GAAP) not paid within 90 days of the date payment was issued.  The Hercules Agreement, as amended, contains customary representations and warranties, affirmative and negative covenants, and events of default that entitle Hercules to cause our indebtedness under the agreement to become immediately due and payable. 

On August 29, 2018, in connection with the issuance of Series D Preferred Stock, the Company and Hercules (and various affiliated entities) entered into the fourth amendment to the Hercules Agreement to (i) modify the definition of “Permitted Indebtedness” to include certain redemption and/or conversion rights as set forth in the Series D Certificate of Designation, (ii) permit the Company, so long as no event of default has occurred and is continuing, to repurchase or redeem stock in cash pursuant to the redemption and/or conversion rights set forth in the Series D Certificate of Designation; provided that, the Company must make any such repurchase, redemption or payment in common stock and not in cash or other consideration unless prohibited pursuant to the terms of the Series D Certificate of Designation or otherwise prohibited by applicable law, (iii) permit the Company, so long as no event of default has occurred and is continuing, to pay cash dividends under the Series D Preferred Shares as required in the Series D Certificate of Designation; provided that, the Company must pay such dividends in common stock and not in cash or other consideration unless prohibited pursuant to the terms of the Series D Certificate of Designation or otherwise prohibited by applicable law, and (iv) add a new event of default, which occurs upon the delivery of a Triggering


Event Redemption Notice (as defined under the Series D Certificate of Designation) under the Series D Certificate of Designation.

On December 19, 2018, to facilitate the Generate Lending Construction Loan Agreement described above, the Company and Hercules (and various affiliated entities) entered into the fifth amendment to the Hercules Agreement to (i) modify the definitions of “Permitted Investment”, “Permitted Liens”, “Project Companies”, “Project Company Indebtedness”, and “Qualified Subsidiary” to permit the creation of a new holding company, FuelCell Energy Finance II, LLC, to hold the membership interests of project companies to be funded under the Facility with Generate Lending described above and (ii) modify the definition of “Project Roundtrip Transaction” to increase the investment amount under a Project Roundtrip Transaction to $40.0 million.

In November 2015, the Company closed on a definitive Assistance Agreement with the State of Connecticut and received a disbursement of $10.0 million, which was used for the first phase of the expansion of ourthe Company’s Torrington, Connecticut manufacturing facility.  In conjunction with this financing, the Company entered into a $10.0 million Promissory Notepromissory note and related security agreements securing the loan with equipment liens and a mortgage on its Danbury, Connecticut location. Pursuant to the terms of the loan, payment of principal is deferred for the first four years with principal payments beginning in November 2019.  Monthly interest paymentsInterest accrues at a fixed interest rate of 2.0 percent per annum began in December 2015.  The financing2.0%, and the loan is payablerepayable over 15 years from the date of the first advance, which occurred in October of 2015. Principal payments were deferred for four years from disbursement and is predicatedbegan on certain terms and conditions, includingDecember 1, 2019.  Under the forgiveness ofAssistance Agreement, the Company was eligible for up to 50 percent of the$5.0 million in loan principalforgiveness if certain job retention and job creation targets are reached.  

On April 17, 2017, the Company created 165 full-time positions and retained 538 full-time positions for two consecutive years (the “Employment Obligation”) as measured on October 28, 2017 (the “Target Date”). The Assistance Agreement was subsequently amended in April 2017 to extend the Target Date by two years to October 28, 2019.    

In January 2019, the Company and the State of Connecticut entered into an amendmenta Second Amendment to the Assistance Agreement extending certain(the “Second Amendment”). The Second Amendment extends the Target Date to October 31, 2022 and amends the Employment Obligation to require the Company to continuously maintain a minimum of 538 full-time positions for 24 consecutive months. Based on the job creation target dates until October 28, 2019.  In addition,Company’s current headcount and plans for fiscal year 2020, it will be short of meeting this requirement.  If the Company meets the Employment Obligation, as modified by the Second Amendment, and creates an additional 91 full-time positions, the Company may receive upa credit in the amount of $2.0 million to $10.0 millionbe applied against the outstanding balance of non-refundable transferable tax credits if certain termsthe loan.  The Second Amendment deletes and conditions are met.  Undercancels the provisions of the Assistance Agreement as amended, the Company targeted employment of 703 Connecticut employees by October 2019.  In connection with this amendmentrelated to the Assistance Agreement, in July 2018,second phase of the Company announced an increase in its annual production rateexpansion project and committed to hire over 100 employees.  As of October 31, 2018,the loans related thereto, but the Company had 431 Connecticut employees.not drawn any funds or received any disbursements under those provisions. A job audit will be performed within 90 days of the Target Date.  If the Company does not meet this target in the required time period, principal under the promissory noteEmployment Obligation, then an accelerated payment penalty will be paidassessed at an annuala rate of $14.0 thousand for each employee under$18,587.36 times the 703 employee target.  The Company cannot currently predict whethernumber of employees below the time period for meeting this targetEmployment Obligation.  Such penalty is immediately payable and will be extended.applied first to accelerate the payment of any outstanding fees or interest due and then to accelerate the payment of outstanding principal.  

As discussed above, on July 30, 2014, the Company’s subsidiary, FuelCell Finance, entered into a Loan Agreement with NRG.  Pursuant to the Loan Agreement, NRG extended a $40.0 million Loan Facility to FuelCell Finance for the purpose of accelerating project development by the Company and its subsidiaries.  Under the Loan Agreement, FuelCell Finance and its subsidiaries were permitted to draw on the Loan Facility to finance the construction of projects through the commercial operating date of the power plants.  Additionally, FuelCell Finance

Connecticut Green Bank Loans.  We had the option to continue the financing term for each project after the commercial operating date for a maximum term of five years per project.  The interest rate is 8.5 percent per annum for construction-period financing and 8.0 percent thereafter.  As of October 31, 2018, there was no outstanding balance on this facility.  

On December 13, 2018, FuelCell Finance’s wholly owned subsidiary, Central CA Fuel Cell 2, LLC, drew a construction loan advance of $5.8 million under the Loan Facility. This advance will be used to support the completion of construction of the 2.8 MW Tulare BioMAT project in California. This plant is expected to meet its commercial operations date (COD) in March 2019.  In conjunction with the December 13, 2018 draw, FuelCell Finance and NRG entered into an amendment to the Loan Agreement (the “Amendment”) to revise the definitions of the terms “Maturity Date” and “Project Draw Period” under the Loan Agreement and to make other related revisions.  Prior to the Amendment, FuelCell Finance and its subsidiaries were able to request draws under the Loan Facility through July 30, 2019 and the maturity date of each note under the Loan Facility was five years after the first disbursement under such note.  Pursuant to the Amendment, FuelCell Finance and its subsidiaries may now request draws only through December 31, 2018 and the maturity date of each note is the earlier of (a) March 31, 2019 and (b) the COD (commercial operation date or substantial completion date, as applicable) with respect to the fuel cell project owned by the borrower under such note.  There are currently no other drawdowns or outstanding balances under the Loan Facility.

In March 2013, we closed on a long-term loan agreement with the Clean Energy Finance and Investment Authority, now known as the Connecticut Green Bank for a loan totaling approximately $5.9 million in support of the Bridgeport fuel cell park project.Fuel Cell Project. During the year ended October 31, 2019, this loan was partially repaid with a new project level loan from the Connecticut Green Bank (as discussed below) in connection with the Company’s acquisition of all of the membership interests in BFC.  The balance under the long-term loan agreement carriesas of October 31, 2019 was $1.8 million.  Subsequent to October 31, 2019, the long-term loan agreement was amended and the Connecticut Green Bank provided the Company with an additional loan in the aggregate principal amount of $3.0 million.  See Note 23. “Subsequent Events” of the Notes to Consolidated Financial Statements for additional information regarding the amendment to the loan agreement and the additional loan.

On May 9, 2019, in connection with the closing of the purchase of BFC, BFC entered into a subordinated credit agreement with the Connecticut Green Bank whereby Connecticut Green Bank provided financing in the amount of $6.0 million (the “Subordinated Credit Agreement”).  As security for the Subordinated Credit Agreement, Connecticut Green Bank received a perfected lien, subordinated and second in priority to the liens securing the $25.0 million loaned under the BFC Credit Agreement (as defined below), in all of the same collateral securing the BFC Credit Agreement (as described below). The interest rate under the Subordinated Credit Agreement is 8% per annum. The debt service coverage ratio required to be maintained under the Subordinated Credit Agreement may not be less than 1.10 as of 5.0 percentthe end of each fiscal quarter, beginning with the quarter ended July 31, 2020. The term of the Subordinated Credit Agreement expires 7 years from the date of the advance of the loan.  Principal and interest are due monthly in amounts sufficient to fully amortize the loan over an 84-month period ending in May 2026. The balance under the Subordinated Credit Agreement as of October 31, 2019 was $5.8 million.


Enhanced Capital Loan.  On January 9, 2019, the Company, through its indirect wholly-owned subsidiary, TRS Fuel Cell, LLC, entered into a Loan and Security Agreement (the “Enhanced Capital Loan Agreement”) with Enhanced Capital Connecticut Fund V, LLC (“Enhanced”) for a loan in the amount of $1.5 million.  The collateral for this loan included any project assets, accounts receivable and inventory owned by TRS Fuel Cell, LLC.  Interest accrued at a rate of 6.0% per annum and principal repayments will commencewas paid on the first business day of each month.  The loan maturity date was three years from the date of the Enhanced Capital Loan Agreement, upon which the outstanding principal and any accrued interest would be due and payable.  Under the terms of the Enhanced Capital Loan Agreement, the Company was required to close on tax equity financing by January 14, 2020.  Given that the Company did not secure tax equity financing for this project, on January 13, 2020, TRS Fuel Cell, LLC and Enhanced entered into a payoff letter whereby the loan was paid off and extinguished on January 14, 2020.

Fifth Third Bank Groton Loan. On February 28, 2019, our indirect wholly-owned subsidiary, Groton Borrower entered into the Groton Agreement with Fifth Third Bank pursuant to which Fifth Third Bank agreed to make available to Groton Borrower a construction loan facility in an aggregate principal amount of up to $23.0 million (the “Groton Facility”) to fund the manufacture, construction, installation, commissioning and start-up of the 7.4 MW fuel cell power plant for the CMEEC at the United States Navy submarine base in Groton, Connecticut.  Groton Borrower made an initial draw under the Groton Facility on the date of closing of the facility of $9.7 million and made an additional draw of $1.4 million in April 2019. The original maturity date of the Groton Facility was the earlier of (a) October 31, 2019, (b) the commercial operation date of the Groton Project, or (c) one business day after receipt of proceeds of debt financing (i.e., take out financing) in an amount sufficient to repay the outstanding indebtedness under the Groton Facility.

On August 13, 2019, Groton Borrower and Fifth Third Bank entered into Amendment No. 1 to the Groton Agreement, which reduced the aggregate principal amount available to Groton Borrower under the Groton Facility from $23.0 million to $18.0 million and pursuant to which Groton Borrower committed to, among other things, deliver to Fifth Third Bank, no later than September 28, 2019 (which deadline was automatically extended to October 21, 2019 upon the Company’s repayment of its corporate loan facility with Hercules on September 30, 2019), a binding loan agreement for permanent financing and one or more binding letters of intent from tax equity investors.  

On October 21, 2019, Groton Borrower and Fifth Third entered into Amendment No. 2 to the Groton Agreement (the “Second Groton Amendment”), pursuant to which Groton Borrower agreed to deliver to Fifth Third Bank, no later than December 16, 2019, a binding agreement, in form and substance reasonably acceptable to Fifth Third Bank:  (i) executed by Groton Borrower and one or more Take-out Lenders (as defined in the Groton Agreement), pursuant to which the Take-out Lenders shall have, individually or collectively, agreed to provide a Take-out Financing (as defined in the Groton Agreement); or (ii) executed by Groton Borrower and one or more tax equity investors or other third parties, pursuant to which such tax equity investors or third parties, via a tax equity or other financing transaction, shall have, individually or collectively, agreed to provide funds to Groton Borrower in an amount no less than the then-outstanding Construction Loans (as defined in the Groton Agreement) under the Groton Agreement and accrued interest.  The Second Groton Amendment further provided, however, that if (A) neither such binding agreement nor a commitment letter for either of such agreements (which commitment letter shall not include a due diligence or similar funding condition) was provided to Fifth Third Bank by November 21, 2019, then commencing on November 22, 2019 until delivery of such commitment letter, the interest rate on the loans was to be the LIBOR rate plus 4% per annum and within three business days after such date, Groton Borrower was to pay to Fifth Third Bank a fee of $15,000 and (B) such binding agreement was not provided to Fifth Third by December 16, 2019, then commencing on December 17, 2019, the outstanding obligations under the Groton Agreement were to bear interest at a rate equal to the LIBOR rate plus 6% per annum.  The total outstanding balance under the Groton Facility as of October 31, 2019 was $11.1 million.  This balance was paid off subsequent to the end of the fiscal year on November 22, 2019, and the Groton Facility was terminated.

BFC Loans.  On May 9, 2019, in connection with the purchase of the membership interests of BFC, FuelCell Finance entered into a Credit Agreement with Liberty Bank, as administrative agent and co-lead arranger, and Fifth Third Bank, as co-lead arranger and swap hedger (the “BFC Credit Agreement”), whereby (i) Fifth Third Bank provided financing to BFC in the amount of $12.5 million towards the purchase price for the BFC acquisition; and (ii) Liberty Bank provided financing to BFC in the amount of $12.5 million towards the purchase price for the BFC acquisition. As security for the BFC Credit Agreement, Liberty Bank and Fifth Third Bank were granted a first priority lien in (i) all assets of BFC, including BFC’s cash accounts, fuel cells, and all other personal property, as well as third party contracts including the Energy Purchase Agreement between BFC and Connecticut Light and Power Company dated July 10, 2009, as amended; (ii) certain fuel cell modules that are intended to be used to replace the Bridgeport Fuel Cell Project’s fuel cell modules as part of routine operation and maintenance; and (iii) FuelCell Finance’s ownership interest in BFC.  


eighth anniversary

The maturity date under the BFC Credit Agreement is May 9, 2025. Monthly principal and interest are to be paid in arrears in an amount sufficient to fully amortize the term loan over a 72 month period.  BFC has the right to make additional principal payments or pay the balance due under the BFC Credit Agreement in full provided that it pays any associated breakage fees with regard to the interest rate swap agreements fixing the interest rate. The interest rate under the BFC Credit Agreement fluctuates monthly at the 30-day LIBOR rate plus 275 basis points on an initial total notional value of $25.0 million, reduced for principal payments.  An interest rate swap agreement was required to be entered into with Fifth Third Bank in connection with the project’s provisional acceptance date which is December 20, 2021.  Outstanding amountsBFC Credit Agreement to protect against movements in the floating LIBOR index. Accordingly, on May 16, 2019, BFC entered into the 1992 ISDA Master Agreement, along with the Schedule to such Agreement, with Fifth Third Bank, and executed the related trade confirmations on May 17, 2019. The net interest rate across the BFC Credit Agreement and the swap transaction results in a fixed rate of 5.09%.  

The obligations of BFC to Fifth Third Bank under the swap agreement are treated as obligations under the BFC Credit Agreement and, accordingly, are secured by futurethe same collateral securing the obligations of BFC under the BFC Credit Agreement.

The BFC Credit Agreement also requires BFC to maintain a debt service reserve at each of Liberty Bank and Fifth Third Bank of $1.25 million, both of which were funded on May 10, 2019, to be held in deposit accounts at each respective bank, with funds to be disbursed with the consent of or at the request of the required lenders in their sole discretion. Each of Liberty Bank and Fifth Third Bank also has an operation and module replacement reserve (“O&M Reserve”) of $250,000, both of which were funded at closing of the BFC Credit Agreement, to be held in deposit accounts at each respective bank, and thereafter BFC is required to deposit $100,000 per month into each O&M Reserve for the first five years of the BFC Credit Agreement, with such funds to be released at the sole discretion of Liberty Bank and Fifth Third Bank, as applicable. BFC is also required to maintain excess cash flow reserve accounts at each of Liberty Bank and Fifth Third Bank and to evenly split and deposit the excess cash flows from the Bridgeport fuel cell park contracts. The outstanding balance onFuel Cell Project into these accounts. Excess cash flow consists of cash generated by BFC from the Bridgeport Fuel Cell Project after payment of all expenses (including after payment of intercompany service fees to the Company), debt service to Liberty Bank and Fifth Third Bank, the funding of all required reserves, and payments to Connecticut Green Bank Notefor the subordinated facility.  BFC is also required to maintain a debt service coverage ratio of not less than 1.20, measured for the trailing year based on fiscal quarters beginning with the quarter ended July 31, 2020. The BFC Credit Agreement contains representations, warranties and other covenants.  The Company also has certain quarterly and annual financial reporting requirements under the BFC Credit Agreement. The annual financial statements to be provided pursuant to such requirements are to be audited and accompanied by a report of an independent certified public accountant, which report shall not include a “going concern” matter of emphasis or any qualification or exception as to the scope of such audit.

Orion Senior Secured Credit Facility.  On October 31, 2019, we (and certain of our subsidiaries as guarantors) entered into the Orion Credit Agreement with the Agent, and its affiliates, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., and Orion Energy Credit Opportunities Fund II PV, L.P., as lenders, regarding a $200.0 million senior secured credit facility (the “Orion Facility”), structured as a delayed draw term loan, to be provided by the lenders, subject to certain lender approvals.  In conjunction with the closing of the Orion Facility, on October 31, 2019, we drew down $14.5 million and received $14.1 million after a Loan Discount (described below) of $0.4 million in the Initial Funding to fully repay debt outstanding to NRG and Generate and to fund dividends paid to the holders of our Series B Preferred Stock on or before November 15, 2019.  The balance of the Initial Funding was used primarily to pay third party costs and expenses associated with closing of the Orion Facility.

The Initial Funding is secured by corporate assets as described in the Pledge and Security Agreement among us, certain of our subsidiaries as guarantors, and the Agent (the “Pledge and Security Agreement”), including our intellectual property assets and our interest in certain fuel cell projects owned by us, but not including liens on certain of our assets and projects which are currently subject to other third party financing and for which none of the proceeds of the Initial Funding were applied (“Excluded Assets”). Those corporate subsidiaries whose assets are pledged to the Agent as part of the collateral are also corporate guarantors of the Orion Facility.  As of the Initial Funding, the following projects had assets that were not pledged as collateral for the Orion Facility and were included in Excluded Assets: (a) the Bridgeport Project; (b) the Pfizer Project; (c) the Riverside Regional Water Quality Control Project; (d) the Santa Rita Jail Project; (e) the Triangle Street Project; (f) the UC Irvine Medical Center Project; (g) the CCSU Project and (h) the Groton Project (as described elsewhere herein). Additionally, our corporate headquarters at 3 Great Pasture Road, Danbury, Connecticut and certain scheduled equipment previously pledged to the State of Connecticut to secure the $10.0 million State of Connecticut loan used to complete the expansion of our Torrington manufacturing facility are Excluded Assets.


In connection with the Company’s providing collateral to the Agent for the Orion Facility, the Company granted security interests to the Agent in all of the Company’s bank accounts subject to deposit account security agreements, other than certain bank accounts referred to as “Excluded Accounts” and bank accounts maintained for Excluded Assets (as defined in the Orion Credit Agreement).  Certain bank accounts have been established pursuant to the terms and conditions of the Orion Credit Agreement, for which security interests have been granted to the Agent, including general corporate accounts, accounts for each of the Covered Projects (as defined in the Orion Credit Agreement), a Project Proceeds Account (for the proceeds of Permitted Project Dispositions/Refinancings), a Borrower Waterfall Account (into which net operating cash flow of the Company after payment of operating expenses will be deposited for the payment of debt service to the Agent), a Debt Reserve Account (to fund a reserve for required debt service payments to the State of Connecticut and Connecticut Green Bank), a Preferred Reserve Account (to fund a reserve for required dividends on the Company’s Series B Preferred Stock and the Series 1 Preferred Shares (or, in lieu of such dividends, the amount required to redeem shares of Series 1 Preferred Stock in an amount equal to the amount of dividends that would otherwise have been paid in respect thereof)), a Module Replacement Reserve Account (to fund a reserve intended to be for the cost of module replacements for projects owned by the Company that would occur during the outstanding term of the Orion Facility) and certain other accounts.   Excluded Accounts consist of bank accounts of the Company used to collateralize performance bonds and other sureties for projects and third party obligations and certain other certain operating accounts of the Company (i.e., payroll, benefits, sales and income tax withholding and related accounts).

Subsequent to October 31, 2019, a second draw (the “Second Funding”) of $65.5 million, funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Co-Invest, L.P., was made on November 22, 2019 to fully repay our outstanding third party debt with respect to the outstanding construction loan to Fifth Third Bank on the Groton Project and the outstanding loan to Webster Bank on the CCSU Project as well as to fund remaining going forward construction costs and anticipated capital expenditures relating to the Groton Project (a 7.4 MW project), the LIPA Yaphank Solid Waste Management Project (a 7.4 MW project), and the Tulare BioMAT project (a 2.8 MW project).  The funds drawn in the Second Funding were reduced by a Loan Discount (described below) of $1.6 million, which was retained by the lenders.  Simultaneously with the Second Funding, the lien on our intellectual property assets that was granted to the Agent at the time of the Initial Funding was released and a lien was granted to the Agent to secure the Orion Facility on the assets of the Groton Project and CCSU Project as well as with respect to the equity interests in such project companies.

In conjunction with the Second Funding, the Company and the other loan parties entered into the First Amendment to the Orion Credit Agreement (the “First Orion Amendment”), which required the Company to establish a $5 million debt reserve, with such reserve to be released on the first date following the date of the Second Funding on which all of the following events shall have occurred: (a) each of (x) the commercial operation date for the Tulare BioMAT project shall have occurred and (y) a disposition, refinancing or tax equity investment in the Tulare BioMAT project of at least $5 million is consummated; (b) each of (x) the 7.4 MW project in Groton, Connecticut (the “Groton Project”) shall have achieved its business plan in accordance with the Groton Construction Budget (as defined in the Credit Agreement), (y) the commercial operation date for the Groton Project shall have occurred and (z) the Groton Project shall have met its annualized output and heat rate guarantees for three months; and (c) a disposition, refinancing or tax equity investment of at least $30 million shall have occurred with respect to the Groton Project.  The First Orion Amendment further requires the Company to (i) provide, no later than December 31, 2019 (or such later date as the Agent may, in its sole discretion, agree in writing), a biogas sale and purchase agreement through December 31, 2021 for the Tulare BioMAT project, which was obtained as of such date; (ii) obtain by December 31, 2019 (or such later date as the Agent may, in its sole discretion, agree in writing) a fully executed contract for certain renewable energy credits for the Groton Project, which was obtained as of such date, and (iii) provide by January 31, 2020 (or such later date as the Agent may, in its sole discretion, agree in writing) certain consents and estoppels from CMEEC related to the Groton Project and an executed seventh modification to the lease between CMEEC and the United States Government, acting by and through the Department of the Navy. The First Orion Amendment provides that, if the requirements set forth in clauses (ii) and (iii) above are not timely satisfied, the Company will grant the Agent, on behalf of the lenders, a security interest and lien on all of the Company’s intellectual property, with such lien and security interest to be released at such time as the Company has satisfied such requirements.

On January 20, 2020, in conjunction with the January 2020 Letter Agreement, and in order to obtain the lenders’ consent to the January 2020 Letter Agreement as required under the Orion Credit Agreement, the Company and the


other loan parties entered into the Second Orion Amendment, which adds a new affirmative covenant to the Orion Credit Agreement that obligates the Company to, and to cause FCE Ltd. to, on or prior to November 1, 2021, either (i) pay and satisfy in full all of their respective obligations in respect of, and fully redeem and cancel, all of the Series 1 Preferred Shares of FCE Ltd., or (ii) deposit in a newly created account of FCE Ltd. or the Company cash in an amount sufficient to pay and satisfy in full all of their respective obligations in respect of, and to effect a redemption and cancellation in full of, all of the Series 1 Preferred Shares of FCE Ltd. The Second Orion Amendment also provides that the articles of FCE Ltd. setting forth the modified terms of the Series 1 Preferred Shares will be considered a “Material Agreement” under the Orion Credit Agreement. Under the Second Orion Amendment, a failure to satisfy this new affirmative covenant or to otherwise comply with the terms of the Series 1 Preferred Shares will constitute an event of default under the Orion Credit Agreement, which could result in the acceleration of any amounts outstanding under the Orion Credit Agreement.

We may draw the remainder of the Orion Facility, $120.0 million, over the first 18 months following the Initial Funding and subject to the Agent’s approval to fund: (i) construction costs, inventory and other capital expenditures of  additional fuel cell projects with contracted cash flows (under PPAs with creditworthy counterparties) that meet or exceed a mutually agreed coverage ratio; and (ii) inventory, working capital, and other costs that may be required to be delivered by us on purchase orders, service agreements, or other binding customer agreements with creditworthy counterparties.

Under the Orion Credit Agreement, we also agreed to grant to the Agent a right of first offer (“ROFO”) with regard to construction financing indebtedness proposed to be incurred by us with respect to fuel cell projects intended to be owed by us. To the extent that the ROFO is not exercised by the Agent, we may obtain construction financing for these projects from third parties.  The ROFO does not apply to, and there is no restriction on our right to consummate, take-out financings, including tax equity financings, of any projects upon completion of those projects and such projects’ being placed in service.  

Under the Orion Credit Agreement, cash interest of 9.9% per annum will be paid quarterly in cash. In addition to the cash interest, “PIK” interest of 2.05% per annum will accrue which will be added to the outstanding principal balance of the Orion Facility but will be paid quarterly in cash to the extent of available cash after payment of our operating expenses and the funding of certain reserves for the payment of outstanding indebtedness to the State of Connecticut and Connecticut Green Bank. Each lender will fund its commitments on each funding date in an amount equal to the principal amount of the loans to be funded by such lender on such date, less 2.50% of the aggregate principal amount of the loans funded by such lender on such date (the “Loan Discount”), in accordance with the Loan Discount Letter entered into between us and the Agent as of October 31, 2018 was $6.1 million.2019 (the “Loan Discount Letter”). Such Loan Discount shall be in all respects fully earned on the Initial Funding Date and non-refundable and non-creditable thereafter.  

Outstanding principal on the Orion Facility will be amortized on a straight-line basis over a seven-year term in quarterly payments  beginning one year after the Initial Funding; provided that, if we do not have sufficient cash on hand to make any required quarterly amortization payments, such amounts shall be deferred and payable at such time as sufficient cash is available to make such payments subject to all outstanding principal being due and payable on the maturity date, which is the date that is eight years after the closing date or October 31, 2027.

The Orion Credit Agreement includes mandatory prepayment requirements and a prepayment premium of up to 30% of the amount being prepaid in the event that certain triggering events occur, including events of loss (destruction of or damage to any property of a loan party) where the proceeds received from such events of loss are not applied to the repair or restoration of the affected property, the sale, transfer or other disposition of project assets funded by the Orion Facility, if the proceeds from such disposition are not reinvested in substantially similar assets that are useful and necessary for the business (as defined in the Orion Credit Agreement) pursuant to a transaction permitted under the Orion Credit Agreement within a certain period of time, the incurrence of debt other than permitted indebtedness (as defined in the Orion Credit Agreement) and certain events of default (as defined in the Orion Credit Agreement), and also includes a post-default rate increase feature in the event certain events of default occur (in each case as defined in the Orion Credit Agreement).

In connection with the closing of the Orion Credit Agreement and the Initial Funding, on October 31, 2019, the Company issued warrants to the Initial Funding lenders under the Orion Credit Agreement to purchase up to a total of 6,000,000 shares of the Company’s common stock, at an exercise price of $0.310 per share (the “Initial Funding Warrants”).  In addition, under the Orion Credit Agreement, on the date of the Second Funding (November 22, 2019),


the Company issued the warrants to the Second Funding lenders to purchase up to a total of 14,000,000 shares of the Company’s common stock, with an exercise price with respect to 8,000,000 of such shares of $0.242 per share and with an exercise price with respect to 6,000,000 of such shares of $0.620 per share (the “Second Funding Warrants”, and together with the Initial Funding Warrants, collectively the “Orion Warrants”).  

The Orion Warrants have an 8-year term from the date of issuance, are exercisable immediately beginning on the date of issuance, and include provisions permitting cashless exercises.  The Orion Warrants contain provisions regarding adjustment to their exercise prices and the type or class of security issuable upon exercise, including, without limitation, adjustments as a result of the Company undertaking or effectuating (a) a stock dividend or dividend of other securities or property, (b) a stock split, subdivision or combination, (c) a reclassification, (d) the distribution by the Company to substantially all of the holders of its common stock (or other securities issuable upon exercise of an Orion Warrant) of rights, options or warrants entitling such holders to subscribe for or purchase common stock (or other securities issuable upon exercise of an Orion Warrant) at a price per share that is less than the average of the closing sales price per share of the Company’s common stock for the ten consecutive trading days ending on and including the trading day before such distribution is publicly announced, and (e) a Fundamental Transaction (as defined in the Orion Warrants) or Change of Control (as defined in the Orion Credit Agreement).

In April 2008,addition to the commitments listed in the table under the heading “Commitments and Significant Contractual Obligations,” we entered into a 10-year loan agreement withhave the Connecticut Development Authority allowing for a maximum amount borrowed of $4.0 million. following outstanding obligations.

Restricted Cash

As of October 31, 2019 and 2018, we had an outstanding balance of $0.3 million on this loan. The interest rate is 5.0 percent per annum.  Interest only payments commenced in January 2014 and the loan is collateralized by the assets procured under this loan as well as $4.0 million of additional machinery and equipment. Repayment terms required interest and principal payments through May 2018.  However, the repayment terms were modified in April 2018, such that the remaining balance and interest will be paid on a monthly basis through December 2018.

We have pledged approximately $30.3 million and $40.9 million, respectively, of our cash and cash equivalents as performance security and for letters of credit for certain banking requirements and contracts. As of October 31, 2019 and 2018, outstanding letters of credit totaled $5.7 million and $3.8 million. Thesemillion, respectively. The letters of credit outstanding as of October 31, 2019 expire on various dates through August 2025.2028.  Under the terms of certain contracts, the Companywe will provide performance security for future contractual obligations.  The restricted cash balance as of October 31, 2018 includes $15.0 million which was placed in a Grantor’s Trust account to secure certain Company obligations under the 15-year service agreement for the Bridgeport fuel cell park project and is reflected as long-term restricted cash.  The restrictions on the $15.0 million will be removed upon completion of the final module exchange at the Bridgeport fuel cell park project under the terms of the service agreement.  The restricted cash balance as of October 31, 20182019 also includes $18.2included $17.9 million primarily to support obligations ofunder the power purchase and service agreements related to the PNC sale-leaseback transactions.transactions and $6.7 million relating to future obligations associated with the Bridgeport Fuel Cell Project.

As of October 31, 2019 and 2018, we had uncertain tax positions aggregating $15.7 million and have reduced our NOL carryforwards by this amount. Because of the level of NOLs and valuation allowances, unrecognized tax benefits, even if not resolved in our favor, would not result in any cash payment or obligation and therefore have not been included in the contractual obligation table under the heading “Commitments and Significant Contractual Obligations.”

In addition to the commitments listed in the table under the heading “Commitments and Significant Contractual Obligations,” we have the following outstanding obligations:

Power purchase agreements

Under the terms of our PPAs, customers agree to purchase power from our fuel cell power plants at negotiated rates. Electricity rates are generally a function of the customers’ current and estimated future electricity pricing available from the grid. We are responsible for all operating costs necessary to maintain, monitor and repair our fuel cell power plants. Under certain agreements, we are also responsible for procuring fuel, generally natural gas or biogas,Biogas, to run our fuel cell power plants.  In addition, under certain agreements, we are required to produce minimum amounts of power under our PPAs and we have the right to terminate PPAs by giving written notice to the customer, subject to certain exit costs.  As of October 31, 2018,2019, our operating portfolio was 11.226.1 MW.

Service and warranty agreements

We warranty our products for a specific period of time against manufacturing or performance defects. Our standard U.S. warranty period is generally fifteen15 months after shipment or twelve12 months after acceptance of the product. In addition to the standard product warranty, we have contracted with certain customers to provide services to ensure the power plants meet minimum operating levels for terms of up to twenty20 years. Pricing for service contracts is based upon estimates of future costs, which could be materially different from actual expenses. Refer to “Critical Accounting Policies and Estimates” for additional details.

Advanced Technologies contracts

We have contracted with various government agencies and certain companies from private industry to conduct research and development as either a prime contractor or sub-contractor under multi-year, cost-reimbursement and/or cost-share type contracts or cooperative agreements. Cost-share terms require that participating contractors share the


total cost of the project based on an agreed upon ratio. In many cases, we are reimbursed only a portion of the costs


incurred or to be incurred on the contract. While government research and development contracts may extend for many years, funding is often provided incrementally on a year-by-year basis if contract terms are met and Congress authorizes the funds.  As of October 31, 2019 and 2018, Advanced Technologies contracts backlog totaled $12.0 million and $32.4 million, respectively, of which $11.8 million and $15.9 million, respectively, is funded and $0.2 million and $16.5 million, respectively, is unfunded. Should funding be terminated or delayed or if business initiatives change, we may choose to devote resources to other activities, including internally funded research and development.

Off-Balance Sheet Arrangements

We have no off-balance sheet debt or similar obligations, other than operating leases, which are not classified as debt. We do not guarantee any third-party debt. See Note 1920. “Commitments and Contingencies” to our consolidated financial statements for the year ended October 31, 20182019 included in this Annual Report on Form 10-K for further information.

 

CRITICAL ACCOUNTING POLICIES AND ESTIMATES

The preparation of financial statements and related disclosures requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities. Actual results could differ from those estimates. Estimates are used in accounting for, among other things, revenue recognition, contract loss accruals, excess, slow-moving and obsolete inventories, product warranty accruals, loss accruals on service agreements, share-based compensation expense, allowance for doubtful accounts, depreciation and amortization, impairment of goodwill and in-process research and development intangible assets, impairment of long-lived assets (including project assets) and contingencies. Estimates and assumptions are reviewed periodically, and the effects of revisions are reflected in the consolidated financial statements in the period they are determined to be necessary.

Our critical accounting policies are those that are both most important to our financial condition and results of operations and require the most difficult, subjective or complex judgments on the part of management in their application, often as a result of the need to make estimates about the effect of matters that are inherently uncertain. Our accounting policies are set forth below.

Goodwill and Intangible Assets

Goodwill represents the excess of the aggregate purchase price over the fair value of the net assets acquired in a purchase business combination and is reviewed for impairment at least annually. The intangible asset represents indefinite livedindefinite-lived in-process research and development for cumulative research and development efforts associated with the development of solid oxide fuel cells (SOFC) stationary power generation and is also reviewed at least annually for impairment.

Accounting Standards Codification Topic 350, "Intangibles - Goodwill and Other," (ASC 350)Other" (“ASC 350”) permits the assessment of qualitative factors to determine whether events and circumstances lead to the conclusion that it is necessary to perform the two-step goodwill impairment test required under ASC 350.

The Company completed its annual impairment analysis of goodwill and in-process research and development assets as of July 31, 20182019 and 2017.2018.  The Company performed a qualitative assessment for fiscal year 20182019 and determined that it was more likely than not that there was no impairment of goodwill or the indefinite livedindefinite-lived intangible asset.

Impairment of Long Lived Assets (including Project Assets)

Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset group may not be recoverable. If events or changes in circumstances indicate that the carrying amount of the asset group may not be recoverable, we compare the carrying amount of an asset group to future undiscounted net cash flows, excluding interest costs, expected to be generated by the asset group and their ultimate disposition. If the sum of the undiscounted cash flows is less than the carrying value, the impairment to be recognized


is measured by the amount by which the carrying amount of the asset group exceeds the fair value of the asset group.


During the year ended October 31, 2019, the Company recorded project asset impairment charges for (i) the Triangle Street Project and (ii) the Bolthouse Farms Project, which are further described as follows:

i.

Impairment charge for the Triangle Street Project:  In the fourth quarter of fiscal 2019, management determined that it will not be able to secure a PPA with terms acceptable to the Company for the Triangle Street Project. Therefore, it is management’s current intention to operate the project under a merchant model for the next 5 years. The project will sell power through the Connecticut grid under wholesale tariff rates and Renewable Energy Credits (RECs) to market participants. As a result of management’s decision to operate the project in this manner, an impairment charge of $14.4 million was recorded in the fourth quarter of fiscal 2019. The amount of the impairment charge was determined by comparing the estimated discounted cash flows of the project and the expected residual value of the project to its carrying value.  Management expects to continue to pursue economic enhancements for this project, but cannot currently assess the probability of closing on a revenue contract for the power above wholesale market rates.

ii.

Impairment charge for the Bolthouse Farms Project:  An impairment charge for the Bolthouse Farms Project was recorded as management has decided to pursue termination of the PPA given recent regulatory changes impacting the future cost profile for the Company and Bolthouse Farms. Since it is considered probable that the PPA will be terminated, a $3.1 million impairment charge was recorded, which reflects the difference between the carrying value of the asset and the value of the components that are expected to be redeployed to other projects. This project was removed from the Company’s backlog as of October 31, 2019.

The Company recorded a $0.5 million impairment of a project asset forduring the year ended October 31, 2018 due to the termination of a project. No impairments were recorded for the year ended October 31, 2017.project.

Revenue Recognition

We earn

Under Accounting Standards Codification (“ASC”) Topic 606:  Revenue from Contracts with Customer (“Topic 606”), the amount of revenue recognized for any goods or services reflects the consideration that the Company expects to be entitled to receive in exchange for those goods and services. To achieve this core principle, the Company applies the following five-step approach: (1) identify the contract with the customer; (2) identify the performance obligations in the contract; (3) determine the transaction price; (4) allocate the transaction price to performance obligations in the contract; and (5) recognize revenue when or as a performance obligation is satisfied.

A contract is accounted for when there has been approval and commitment from (i)both parties, the salerights of the parties are identified, payment terms are identified, the contract has commercial substance and installationcollectability of fuel cell power plants including site engineeringconsideration is probable. Performance obligations under a contract are identified based on the goods or services that will be transferred to the customer that are both capable of being distinct and constructionare distinct in the context of the contract. In certain instances, the Company has concluded distinct goods or services (ii) saleshould be accounted for as a single performance obligation that is a series of completed project assets, (iii) equipment only sales (modules, BOPs, component part kitsdistinct goods or services that have the same pattern of transfer to the customer. To the extent a contract includes multiple promised goods or services, the Company must apply judgment to determine whether the customer can benefit from the goods or services either on their own or together with other resources that are readily available to the customer (the goods or services are distinct) and spare partsif the promise to customers), (iv)transfer the goods or services to the customer is separately identifiable from other promises in the contract (the goods or services are distinct in the context of the contract). If these criteria are not met, the promised services are accounted for as a single performance under long-term service agreements, (v)obligation. The transaction price is determined based on the saleconsideration that the Company will be entitled to in exchange for transferring goods or services to the customer. To the extent the transaction price includes variable consideration, the Company estimates the amount of electricity and othervariable consideration that should be included in the transaction price, generally utilizing the expected value streams under PPAs and utility tariffs from project assets retainedmethod. Determining the transaction price requires judgment. If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. Contracts that contain multiple performance obligations require an allocation of the transaction price to each performance obligation based on a relative standalone selling price basis. Standalone selling price is determined by the price at which the performance obligation is sold separately. If the standalone selling price is not observable through past transactions, the Company (vi) license feesestimates the standalone selling price by taking into account available information such as market conditions and royalty income from manufacturing and technology transfer agreements, and (vii) government and customer-sponsored Advanced Technologies projects.internally approved pricing guidelines related to the performance obligations. Performance obligations are satisfied either over time or at a point in time as discussed in


further detail below. In addition, the Company’s contracts with customers generally do not include significant financing components or non-cash consideration.

As further clarification, revenue elements

Revenue streams are classified as follows:

Product. Includes the sale of completed project assets, sale and installation of fuel cell power plants andincluding site engineering and construction services, and the sale of component part kits, modules, BOPsBOP components and spare parts to customers.

Service and license.Service. Includes performance under long-term service agreements for power plants owned by third partiesparties.

License and royalty. Includes license fees and royalty income from manufacturing and technology transfer agreements.the licensure of intellectual property.

Generation. Includes the sale of electricity under PPAs and utility tariffs from project assets retained by the Company.  This also includes revenue received from the sale of other value streams from these assets including the sale of heat, steam, capacity and renewable energy credits.

Advanced Technologies. Includes revenue from customer-sponsored and government-sponsored Advanced Technologies projects.

See below for discussion of revenue recognition under Topic 606 by disaggregated revenue stream, including a comparison to revenue recognition treatment under ASC 605, Revenue Recognition (“ASC 605”).  Our revenue is generated from customers located throughout the U.S., Europe and Asia and from agencies of the U.S. government.

For customer contracts whereCompleted project assets

Contracts for the Company is responsible for supplysale of equipment and site construction (full turn-key construction project) and has adequate cost history and estimating experience, and with respect to which management believes it can reasonably estimate total contract costs, revenue is recognized undercompleted project assets include the percentage of completion method of accounting. The use of percentage of completion accounting requires significant judgment relative to estimating total contract costs, including assumptions relative to the length of time to complete the contract, the nature and complexitysale of the work to be performedproject asset, the assignment of the service agreement, and total project costs. Our estimates are based upon the professional knowledgeassignment of the PPA.  The relative stand-alone selling price is estimated and experience of our engineers, project managers and other personnel, who review each long-term contract on a quarterlyis used as the basis to assess the contract’s schedule, performance, technical matters and estimated cost at completion. When changes in estimated contract costs are identified, such revisions may result in current period adjustments to operations applicable to performance in prior periods. Revenues are recognized based on the percentagefor allocation of the contract value that incurred costsconsideration.  Revenue is recognized upon the satisfaction of the performance obligations, which includes the transfer of control of the project asset to date bearthe customer, which is when the contract is signed and the PPA is assigned to the customer.  See below for further discussion regarding revenue recognition for service agreements.  The revenue recognition for completed project assets under Topic 606 is consistent with treatment under ASC 605.

Contractual payments related to the sale of the project asset and assignment of the PPA are generally received up-front.  Payment terms for service agreements are generally ratable over the term of the agreement.

Service agreements

Service agreements represent a single performance obligation whereby the Company performs all required maintenance and monitoring functions, including replacement of modules, to ensure the power plant(s) under the service agreement generate a minimum power output.  To the extent the power plant(s) under service agreements do not achieve the minimum power output, certain service agreements include a performance guarantee penalty.  Performance guarantee penalties represent variable consideration, which is estimated total contract costs, after giving effect to estimates of costs to completefor each service agreement based on most recent information. For customer contractspast experience, using the expected value method.  The net consideration for new or significantly customized products, where management does not believe it has the ability to reasonably estimate total contract costs, revenueeach service agreement is recognized using the completed contract method and therefore allcosts incurred to date relative to total estimated costs at completion to measure progress.  Under ASC 605, revenue and costs for the contract are deferred and not recognized until installation and acceptance of the power plant is complete. We recognize anticipated contract losses as soon as they become known and estimable.  Actual results could vary from initial estimates and estimates will be updated as conditions change.

Revenue from equipment only sales where the Company does not have the obligations associated with overall construction of the project (modules, BOPs, fuel cell kits and spare parts sales) are recognized upon shipment or title transfer under the terms of the customer contract. Terms for certain contracts provide for a transfer of title and risk of loss to our customers at our factory locations and certain key suppliers upon completion of our contractual requirement to produce products and prepare the products for shipment.


Revenue from service agreements iswas generally recorded ratably over the term of the service agreement, as ourthe performance of routine monitoring and maintenance under thesethe service agreements is generallywas expected to be incurred on a straight-line basis.  For service agreements where we expect to have aIf there was an estimated module exchange at some point during the term, (generally service agreements in excess of five years), the costs of performance arewere not expected to be incurred on a straight-line basis, and therefore a portion of the initial contract value relatedrelating to the module exchange(s) isexchange was deferred and is recognized upon such module replacement event(s).event.  Prior to the implementation of Topic 606, an estimate for a performance guarantee was not recorded until a performance issue occurred at a particular power plant. At that point, the actual power plant’s output was compared against the minimum output guarantee and an accrual was recorded. Furthermore, under ASC 605, performance guarantee accruals were recorded based on actual performance and the related expense was recorded to service and license cost of revenues. The review of power plant performance was updated for each reporting period to incorporate the most recent performance of the power plant and minimum output guarantee payments made to customers, if applicable.


The Company reviews its cost estimates on service agreements on a quarterly basis and records any changes in estimates on a cumulative catch-up basis.

We recognize license fees

Loss accruals for service agreements are recognized to the extent that the estimated remaining costs to satisfy the performance obligation exceed the estimated remaining unrecognized net consideration.  Estimated losses are recognized in the period in which losses are identified.

The Company records any amounts that are billed to customers in excess of revenue recognized as deferred revenue and other revenue recognized in excess of amounts billed to customers as unbilled receivables.  Payment terms for service agreements are generally ratable over the term of the associated agreement. The Company records license fees and royalty income from POSCO Energy as a result of manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012.  The manufacturing and technology transfer agreements we entered with POSCO Energy collectively provide them with the rights to manufacture SureSource power plants in South Korea and exclusive rights to sell in Asia.

Under PPAs and project assets retained by the Company, revenue from the sale of electricity and other value streams is recognized as electricity is provided to the customer.  These revenues are classified as generation revenues.Advanced Technologies contracts

Advanced Technologies contracts include both private industrythe promise to perform research and government entities.development services and as such this represents one performance obligation.  Revenue from most government sponsored Advanced Technologies projects is recognized as direct costs are incurred plus allowable overhead less cost share requirements, if any.  Revenue is only recognized to the extent the contracts are funded.  Revenue from fixed price Advanced Technologies projects is recognized using percentagethe cost to cost input method. There was no impact of completion accounting.adoption of Topic 606 on revenue recognition for Advanced Technologies programscontracts.

The Company records any amounts that are often multi-yearbilled to customers in excess of revenue recognized as deferred revenue and revenue recognized in excess of amounts billed to customers as unbilled receivables.  Payments are based on costs incurred for government sponsored Advanced Technologies projects or structuredand upon completion of milestones for all other projects.

License agreements

The Company entered into manufacturing and technology transfer agreements (the “license agreements”) with POSCO Energy in phases2007, 2009 and 2012.  Revenue from the license fees received from POSCO Energy was previously recognized over the term of the associated agreements.  In connection with subsequent phases dependent on reaching certain milestones priorthe adoption of Topic 606, several performance obligations were identified including previously satisfied performance obligations for the transfer of licensed intellectual property, two performance obligations for specified upgrades of the previously licensed intellectual property, a performance obligation to additional funding being authorized.  Government contracts are typically structured with cost-reimbursement and/or cost-shared type contracts or cooperative agreements. We are reimbursed for reasonable and allocable costs updeliver unspecified upgrades to the reimbursement limits setpreviously licensed intellectual property on a when-and-if-available basis, and a performance obligation to provide technical support for previously delivered intellectual property.  The performance obligations related to the specified upgrades will be satisfied and related consideration recognized as revenue upon the delivery of the specified upgrades.  The performance obligations for unspecified upgrades and technical support are being recognized on a straight-line basis over the license term on the basis that this represents the method that best depicts the progress towards completion of the related performance obligations.  All fixed consideration for the license agreements was previously collected.

Effective as of June 11, 2019, the Company entered into the EMRE License Agreement with EMRE, pursuant to which the Company agreed, subject to the terms of the EMRE License Agreement, to grant EMRE and its affiliates a non-exclusive, worldwide, fully paid, perpetual, irrevocable, non-transferrable license and right to use the Company’s patents, data, know-how, improvements, equipment designs, methods, processes and the like 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.  Such right and license is sublicensable to third parties performing work for or with EMRE or its affiliates, but shall not otherwise be sublicensable. Upon the payment by EMRE to the Company of $10.0 million, which was received by the Company on June 14, 2019, EMRE and its affiliates were fully vested in the rights and licenses granted in the EMRE License Agreement, and any further obligations under the license agreement are considered by the Company to be minimal.  As a result, the total contract or cooperative agreement,value of $10.0 million was recorded as revenue for the fiscal year ended October 31, 2019.

Generation revenue

For project assets where customers purchase electricity from the Company under certain PPAs, the Company has determined that these agreements should be accounted for as operating leases pursuant to ASC 840, Leases. Revenue


is recognized when electricity has been delivered based on the amount of electricity delivered at rates specified under the contracts, assuming all other revenue recognition criteria are met.  For PPAs that are not accounted for as leases, revenue is recognized based on the output method as there is a directly observable output to the customer (electricity delivered to the customer and on certain contracts we are reimbursed only a portion ofimmediately consumed). The Company is entitled to be compensated for performance completed to date (electricity delivered to the costs incurred.customer).

Sale-Leaseback Accounting

From time to time, the

The Company, through a wholly-owned subsidiary, entershas entered into sale-leaseback transactions for commissioned project assets where we have entered into a PPA with a customer who is both the site host and end user of the power (the "Customer").power.  Due to the Company's continuing involvement with the project and the projects being considered integral equipment, sale accounting is precluded by ASC 840-40.840-40, “Leases”.  Accordingly, the Company uses the financing method to account for these transactions.

Under the financing method of accounting for a sale-leaseback, the Company does not recognize as income any of the sale proceeds received from the lessor that contractually constitutes payment to acquire the assets subject to these arrangements. Instead, the sale proceeds received are accounted for as financing obligations and leaseback payments made by the Company are allocated between interest expense and a reduction to the financing obligation. Interest on the financing obligation is calculated using the Company’s incremental borrowing rate at the inception of the arrangement on the outstanding financing obligation. While we receive financing for the full value of the related power plant asset, we have not recognized revenue on the sale leasebacksale-leaseback transaction.  Instead, revenue is recognized through the sale of electricity and energy credits which are generated as energy is produced.  The sale-leaseback arrangements with PNC allow the Company to repurchase the project assets at fair market value.

Inventories

Inventories consist principally of raw materials and work-in-process.  Inventories are reviewed to determine if valuation adjustments are required for obsolescence (excess, obsolete, and slow-moving inventory). This review includes analyzing inventory levels of individual parts considering the current design of our products and production requirements as well as the expected inventory needs for maintenance on installed power plants.

Warranty and Service Expense Recognition

We warranty our products for a specific period of time against manufacturing or performance defects. Our U.S. warranty is generally limited to a term generallyof 15 months after shipment or 12 months after acceptance of our products. We


accrue for estimated future warranty costs based on historical experience. We also provide for a specific accrual if there is a known issue requiring repair during the warranty period. Estimates used to record warranty accruals are updated as we gain further operating experience. As of October 31, 20182019 and October 31, 2017,2018, the warranty accrual, which is classified in accrued liabilities on the Consolidated Balance Sheets, totaled $0.1 million and $0.3 million, respectively.million.

In addition to the standard product warranty, we have entered into service agreements with certain customers to provide monitoring, maintenance and repair services for fuel cell power plants. Under the terms of these service agreements, the power plant must meet a minimum operating output during the term. If minimum output falls below the contract requirement, we may be subject to performance penalties or may be required to repair and/or replace the customer's fuel cell module(s).module. The Company has accrued for performance guarantees for service agreements of $1.1$0.8 million and $2.2$1.1 million as of October 31, 2019 and 2018, and October 31, 2017, respectively.  Refer to Note 2. “Revenue Recognition” for the change in accounting effective as of November 1, 2019 relating to performance guarantees

The Company records loss accruals on allfor service agreements when the estimated cost of future module exchanges and maintenance and monitoring activities exceedexceeds the remaining unrecognized contract value. Estimates for future costs on service agreements are determined by a number of factors including the estimated remaining life of the module, used replacement modules available, and future operating plans for the power plant. Our estimates are performed on a contract by contract basis and include cost assumptions based on what we anticipate the service requirements will be to fulfill obligations for each contract. As of October 31, 20182019 and October 31, 2017,2018, our loss accruals on service agreement contractsagreements totaled $3.3 million and $0.9 million, and $1.1 million, respectively.


At the end of our service agreements, customers are expected to either renew the service agreement or, based on the Company's rights to title forof the module, the module will be returned to the Company as the plant is no longer being maintained.  As of October 31, 2018 and2019, the Company had $1.0 million related to the residual value of replacement modules in power plants under service agreements compared to $1.2 million as of October 31, 2017, the related residual value asset was $1.2 million and $1.0 million, respectively.2018.

ACCOUNTING GUIDANCE UPDATE

Recently Adopted Accounting Guidance

In March 2016,May 2014, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) No. 2016-09, “Compensation - Stock Compensation” (Topic 718): Improvements to Employee Share-Based Payment Accounting (“ASU 2016-09”). ASU 2016-09 is effective for fiscal years beginning after December 15, 2016, including interim periods within those fiscal years. The adoption of ASU 2016-09 resulted in no net impact to equity as the additional deferred tax asset recorded for previously unrecognized net operating loss carryforwards of $7.8 million was offset by a valuation allowance of the same amount.

In July 2015, the FASB issued ASU 2015-11, “Inventory (Topic 330) – Simplifying the Measurement of Inventory.” This guidance changes the measurement principle for inventory from the lower of cost or market to the lower of cost and net realizable value. Net realizable value is defined as estimated selling prices in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. This guidance is effective for fiscal years, and interim periods within those years, beginning after December 15, 2016. The Company adopted this standard in fiscal year 2018. The adoption of this standard did not have an impact on the Company’s consolidated financial statements.

Recent Accounting Guidance Not Yet Effective

In May 2014, the FASB issued ASU No. 2014-09, “Revenue from Contracts with Customers (Topic 606).” This ASU provides for five principles, which should be followed to determine  The adoption of Topic 606 by the appropriate amount and timing of revenue recognition for the transfer of goods and services to customers. The principles in this ASU should be applied to all contracts with customers regardless of industry. The Company will adopt this ASU in the first quarter of fiscal year 2019.  The Company has numerous different revenue sources including the sale and installation of fuel cell power plants, site engineering and construction services, sale of modules and spare parts, extended warranty service agreements, sale of electricity under power purchase agreements, license fees and royalty income from manufacturing and technology transfer agreements and customer-sponsored Advanced Technologies projects.  This requires application of various revenue recognition methods under current accounting guidance.  The Company has decided to


useon November 1, 2018 using the modified retrospective transition method. The adoption of this ASU is expected to resultmethod resulted in a cumulative effect adjustment increasingthat increased Accumulated deficit by approximately between $7.0 million and $10.0 million on November 1, 2018, which is the result of the change in timing of revenue recognition for the Company’s service agreements and license revenue.  $6.7 million.

In February 2016, the FASB issued ASU 2016-02, “Leases” which, for operating leases, requires a lessee to recognize a right-of-use asset and a lease liability, initially measured at the present value of the lease payments, in its balance sheet. The standard also requires a lessee to recognize a single lease cost, calculated so that the cost of the lease is allocated over the lease term, on a generally straight-line basis. This ASU is effective for public companies for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years (first quarter of fiscal year 2020 for the Company). Early adoption is permitted. The Company has both operating and capital leases (refer to Note 18. Commitments and Contingencies) as well as sale-leasebacks accounted for under the finance method and may have other arrangements that contain embedded leases as characterized in this ASU.  We expect that adoption of this ASU will result in the recognition of right-of-use assets and lease liabilities not currently recorded in our consolidated financial statements under existing accounting guidance. However, we are still evaluating all of the Company’s contractual arrangements and the impact that adoption of ASU 2016-02 will have on the Company’s consolidated financial statements.

In January 2017, the FASB issued ASU No. 2017-04, “Intangibles-Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment” which provides for a one-step quantitative impairment test, whereby a goodwill impairment loss will be measured as the excess of a reporting unit’s carrying amount over its fair value (not to exceed the total goodwill allocated to that reporting unit). It eliminates Step 2 of the current two-step goodwill impairment test, under which a goodwill impairment loss is measured by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. The standard isCompany early adopted this ASU effective on a prospective basis for interim and annual periods beginning after December 15, 2019, with earlyNovember 1, 2018.  The adoption permitted. Management is currently assessing the impact the standard willof this ASU did not have on the Company, but it is not expected to have a materialan impact on the Company’s consolidated financial statements.

Recent Accounting Guidance Not Yet Effective

In February 2016, the FASB issued ASU 2016-02, “Leases” that amends the accounting and disclosure requirements for leases.  The new guidance requires that a lessee shall recognize a right-of-use (“ROU”) asset and a corresponding lease liability, initially measured at the present value of the lease payments, in its balance sheet.  Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the Consolidated Statements of Operations.  The Company was required to adopt the new guidance on November 1, 2019.  In July 2018, the FASB issued an amendment to the new leasing standard which provides an alternative transition method that allows companies to recognize a cumulative effect adjustment to the opening balance sheet upon adoption.  The Company intends to elect this alternative transition method and forgo the adjustments to comparative-period financial information.

The Company has both operating and capital leases (refer to Note 20. “Commitments and Contingencies”) as well as sale-leaseback transactions that are accounted for under the finance method.  The new standard provides entities with several practical expedient elections.  Among them, the Company intends to elect the package of practical expedients that permits the Company to not reassess prior conclusions related to its leasing arrangements, lease classifications and initial direct costs. In addition, the Company plans to elect the practical expedients to not separate lease and non-lease components, to use hindsight in determining the lease terms and impairment of ROU assets, and to not apply the new standard’s recognition requirements to short-term leases or use the portfolio approach to a group of leases with similar characteristics. Upon adoption of this ASU, the Company will record ROU assets and the present value of its lease liabilities which are currently not recognized on its consolidated balance sheet.  The Company is in the process of implementing changes to its business processes, systems and controls to support the new lease standard and its disclosure requirements.

On adoption, the Company expects to recognize a lease liability of approximately $10.3 million and corresponding ROU assets of approximately $10.1 million.  Any cumulative effect of the adoption recorded to accumulated deficit is not expected to be significant.  The Company also does not expect there to be a significant net effect on the consolidated statements of operations, however, what was previously presented as rent expense related to operating leases will be recognized as interest expense on the Company’s minimum lease obligation and depreciation of right-of-use asset.


Item 7A.

QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

Interest Rate Exposure Risk

Cash is invested overnight with high credit quality financial institutions and therefore we are not exposed to market risk on our cash holdings from changing interest rates. Based on our overall interest rate exposure as of October 31, 2018,2019, including all interest rate sensitive instruments, a change in interest rates of 1% would not have a material impact on our results of operations.

Foreign Currency Exchange Risk

As of October 31, 2019 and 2018, approximately 6% and 4%, respectively, of our total cash, cash equivalents and investments were in currencies other than U.S. dollars (primarily the Euro, Canadian dollars and South Korean Won) and we have no plans of repatriation. We make purchases from certain vendors in currencies other than U.S. dollars. Although we have not experienced significant foreign exchange rate losses to date, we may in the future, especially to the extent that we do not engage in currency hedging activities. The economic impact of currency exchange rate movements on our operating results is complex because such changes are often linked to variability in real growth, inflation, interest rates, governmental actions and other factors. These changes, if material, may cause us to adjust our financing and operating strategies.

Derivative Fair Value Exposure Risk

Series 1 Preferred Shares

The conversion feature and the variable dividend obligation of ourFCE Ltd.’s Series 1 Preferred Shares are embedded derivatives that require bifurcation from the host contract. The aggregate fair value of these derivatives included within long-term debt and other liabilities as of October 31, 2019 and 2018 was $0.6 million and 2017 was $0.8 million, for each period presented.respectively. The fair value was based on valuation models using various assumptions, including historical stock price volatility, risk-free interest rate and a credit spread based on the yield indexes of technology high yield bonds, foreign exchange volatility as the Series 1 Preferred Shares are denominated in Canadian dollars, and the closing price of our common stock. Changes in any of these assumptions would change the underlying fair value with a corresponding charge or credit to operations.

Interest Rate Swap

On May 16, 2019, an interest rate swap agreement (the “Swap Agreement”) was entered into with Fifth Third Bank in connection with the BFC Credit Agreement for the term of the loan.  The net interest rate across the BFC Credit Agreement and the swap transaction results in a fixed rate of 5.09%.  The interest rate swap will be adjusted to fair value on a quarterly basis.  The estimated fair value is based on Level 2 inputs including primarily the forward LIBOR curve available to swap dealers.  The valuation methodology involves comparison of (i) the sum of the present value of all monthly variable rate payments based on a reset rate using the forward LIBOR curve and (ii) the sum of the present value of all monthly fixed rate payments on the notional amount which is equivalent to the outstanding principal amount of the loan.  The fair value adjustments for the fiscal year ended October 31, 2019 resulted in $0.6 million of charges.


Item 8.

CONSOLIDATED FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA

 

Index to the Consolidated Financial Statements

 

Page

 

 

 

Report of Independent Registered Public Accounting Firm

 

8994

 

 

 

Consolidated Balance Sheets at October 31, 20182019 and 20172018

 

9195

 

 

 

Consolidated Statements of Operations and Comprehensive Loss for the Years Ended October 31, 2019, 2018 2017 and 20162017

 

9296

 

 

 

Consolidated Statements of Changes in Equity for the Years Ended October 31, 2019, 2018 2017 and 20162017

 

9397

 

 

 

Consolidated Statements of Cash Flows for the Years Ended October 31, 2019, 2018 2017 and 20162017

 

9498

 

 

 

Notes to Consolidated Financial Statements

 

9599

 

 

 


Report of Independent Registered Public Accounting Firm

 

To the Stockholders and Board of Directors

FuelCell Energy, Inc.:

OpinionsOpinion on the Consolidated Financial Statements and Internal Control Over Financial Reporting

We have audited the accompanying consolidated balance sheets of FuelCell Energy, Inc. and subsidiaries (the Company) as of October 31, 20182019 and 2017,2018, the related consolidated statements of operations and comprehensive loss, changes in equity, and cash flows for each of the years in the three-yearthree‑year period ended October 31, 2018,2019, and the related notes (collectively, the consolidated financial statements). We also have audited the Company’s internal control over financial reporting as of October 31, 2018, based on criteria established in Internal Control – Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission.  

In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of October 31, 20182019 and 2017,2018, and the results of its operations and its cash flows for each of the years in the three-yearthree‑year period ended October 31, 2018,2019, in conformity with U.S. generally accepted accounting principles. Also

Change in our opinion,Accounting Principle

As discussed in Note 1 to the consolidated financial statements, the Company maintained, in all material respects, effective internal control over financial reportinghas changed its method of accounting for revenue as of October 31,November 1, 2018 based on criteria established indue to the adoption of Financial Accounting Standards Board Accounting Standards Codification Topic 606, Internal Control – Integrated Framework (2013)Revenue from Contracts with Customers issued by the Committee of Sponsoring Organizations of the Treadway Commission..

Basis for OpinionsOpinion

The Company’s management is responsible for theseThese consolidated financial statements for maintaining effective internal control over financial reporting, and for its assessmentare the responsibility of the effectiveness of internal control over financial reporting, included in the accompanying Management’s Annual Report on Internal Control Over Financial Reporting.Company’s management. Our responsibility is to express an opinion on the Company’sthese consolidated financial statements and an opinion on the Company’s internal control over financial reporting based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (PCAOB) and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.

We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the auditsaudit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement, whether due to error or fraud, and whether effectivefraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits, we are required to obtain an understanding of internal control over financial reporting was maintained in all material respects.but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion.

Our audits of the consolidated financial statements included performing procedures to assess the risks of material misstatement of the consolidated financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the consolidated financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the consolidated financial statements. Our audit of internal control over financial reporting included obtaining an understanding of internal control over financial reporting, assessing the risk that a material weakness exists, and testing and evaluating the design and operating effectiveness of internal control based on the assessed risk. Our audits also included performing such other procedures as we considered necessary in the circumstances. We believe that our audits provide a reasonable basis for our opinions.

Definition and Limitations of Internal Control Over Financial Reporting

A company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company’s internal control over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the company’s assets that could have a material effect on the financial statements.


Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with the policies or procedures may deteriorate.

opinion.

/s/ KPMG LLP

We have served as the Company’s auditor since 1995.

Hartford, Connecticut
January 22, 2020

January 10, 2019


FUELCELL ENERGY, INC.

Consolidated Balance Sheets

October 31, 20182019 and 20172018

(Amounts in thousands, except share and per share amounts)

 

 

2018

 

 

2017

 

 

2019

 

 

2018

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Current assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cash and cash equivalents

 

$

39,291

 

 

$

49,294

 

Cash and cash equivalents, unrestricted

 

$

9,434

 

 

$

39,291

 

Restricted cash and cash equivalents - short-term

 

 

5,806

 

 

 

4,628

 

 

 

3,473

 

 

 

5,806

 

Accounts receivable, net of allowance for doubtful accounts of $160 and $79 as of

October 31, 2018 and 2017, respectively

 

 

23,039

 

 

 

68,521

 

Accounts receivable, net of allowance for doubtful accounts of $0 and $160 as of October 31, 2019 and 2018, respectively

 

 

3,292

 

 

 

9,280

 

Unbilled receivables

 

 

7,684

 

 

 

13,759

 

Inventories

 

 

53,575

 

 

 

74,496

 

 

 

54,515

 

 

 

53,575

 

Other current assets

 

 

8,592

 

 

 

6,571

 

 

 

5,921

 

 

 

8,592

 

Total current assets

 

 

130,303

 

 

 

203,510

 

 

 

84,319

 

 

 

130,303

 

Restricted cash and cash equivalents - long-term

 

 

35,142

 

 

 

33,526

 

 

 

26,871

 

 

 

35,142

 

Inventories - long-term

 

 

2,179

 

 

 

 

Project assets

 

 

99,600

 

 

 

73,001

 

 

 

144,115

 

 

 

99,600

 

Property, plant and equipment, net

 

 

48,204

 

 

 

43,565

 

 

 

41,134

 

 

 

48,204

 

Goodwill

 

 

4,075

 

 

 

4,075

 

 

 

4,075

 

 

 

4,075

 

Intangible assets

 

 

9,592

 

 

 

9,592

 

 

 

21,264

 

 

 

9,592

 

Other assets

 

 

13,505

 

 

 

16,517

 

 

 

9,489

 

 

 

13,505

 

Total assets

 

$

340,421

 

 

$

383,786

 

 

$

333,446

 

 

$

340,421

 

LIABILITIES AND EQUITY

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Current liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Current portion of long-term debt

 

$

17,596

 

 

$

28,281

 

 

$

21,916

 

 

$

17,596

 

Accounts payable

 

 

22,594

 

 

 

42,616

 

 

 

16,943

 

 

 

22,594

 

Accrued liabilities

 

 

7,632

 

 

 

18,381

 

 

 

11,452

 

 

 

7,632

 

Deferred revenue

 

 

11,347

 

 

 

7,964

 

 

 

11,471

 

 

 

11,347

 

Preferred stock obligation of subsidiary

 

 

952

 

 

 

836

 

 

 

950

 

 

 

952

 

Total current liabilities

 

 

60,121

 

 

 

98,078

 

 

 

62,732

 

 

 

60,121

 

Long-term deferred revenue

 

 

16,793

 

 

 

18,915

 

 

 

28,705

 

 

 

16,793

 

Long-term preferred stock obligation of subsidiary

 

 

14,965

 

 

 

14,221

 

 

 

16,275

 

 

 

14,965

 

Long-term debt and other liabilities

 

 

71,619

 

 

 

63,759

 

 

 

90,140

 

 

 

71,619

 

Total liabilities

 

 

163,498

 

 

 

194,973

 

 

 

197,852

 

 

 

163,498

 

Redeemable Series B preferred stock (liquidation preference of $64,020 as of October

31, 2018 and October 31, 2017)

 

 

59,857

 

 

 

59,857

 

Redeemable Series C preferred stock (liquidation preference of $8,992 and $33,300 as

of October 31, 2018 and 2017, respectively)

 

 

7,480

 

 

 

27,700

 

Redeemable Series B preferred stock (liquidation preference of $64,020 as of October 31, 2019 and 2018)

 

 

59,857

 

 

 

59,857

 

Redeemable Series C preferred stock (liquidation preference of $8,992 as of October 31, 2018)

 

 

 

 

 

7,480

 

Redeemable Series D preferred stock (liquidation preference of $30,680 as of October

31, 2018)

 

 

27,392

 

 

 

 

 

 

 

 

 

27,392

 

Total equity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Stockholders’ equity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common stock ($0.0001 par value; 225,000,000 and 125,000,000 shares

authorized as of October 31, 2018 and 2017, respectively; 95,672,237 and

69,492,816 shares issued and outstanding as of October 31, 2018 and 2017,

respectively)

 

 

10

 

 

 

7

 

Common stock ($0.0001 par value; 225,000,000 shares authorized as of October 31, 2019 and 2018; 193,608,684 and 7,972,686 shares issued and outstanding as of October 31, 2019 and 2018, respectively)

 

 

19

 

 

 

1

 

Additional paid-in capital

 

 

1,073,454

 

 

 

1,045,197

 

 

 

1,151,454

 

 

 

1,073,463

 

Accumulated deficit

 

 

(990,867

)

 

 

(943,533

)

 

 

(1,075,089

)

 

 

(990,867

)

Accumulated other comprehensive loss

 

 

(403

)

 

 

(415

)

 

 

(647

)

 

 

(403

)

Treasury stock, Common, at cost (156,501 and 88,861 shares as of October

31, 2018 and 2017, respectively)

 

 

(363

)

 

 

(280

)

Treasury stock, Common, at cost (42,496 and 13,042 shares as of October 31, 2019 and 2018, respectively)

 

 

(466

)

 

 

(363

)

Deferred compensation

 

 

363

 

 

 

280

 

 

 

466

 

 

 

363

 

Total stockholders’ equity

 

 

82,194

 

 

 

101,256

 

 

 

75,737

 

 

 

82,194

 

Total liabilities and stockholders’ equity

 

$

340,421

 

 

$

383,786

 

 

$

333,446

 

 

$

340,421

 

 

See accompanying notes to consolidated financial statements.


FUELCELL ENERGY, INC.

Consolidated Statements of Operations and Comprehensive Loss

For the Years Ended October 31, 2019, 2018, 2017, and 20162017

(Amounts in thousands, except share and per share and related party revenue amounts)

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Product sales (including $11.4 million, $0.4 million and

$43.6 million of related party revenue)

 

$

52,490

 

 

$

43,047

 

 

$

62,563

 

Service agreements and license revenues (including $6.5

million, $5.4 million and $8.5 million of related party

revenue)

 

 

15,757

 

 

 

27,050

 

 

 

31,491

 

Product sales

 

$

481

 

 

$

52,490

 

 

$

43,047

 

Service agreements and license revenues

 

 

26,618

 

 

 

15,757

 

 

 

27,050

 

Generation revenues

 

 

7,171

 

 

 

7,233

 

 

 

1,267

 

 

 

14,034

 

 

 

7,171

 

 

 

7,233

 

Advanced Technologies contract revenues

 

 

14,019

 

 

 

18,336

 

 

 

12,931

 

 

 

19,619

 

 

 

14,019

 

 

 

18,336

 

Total revenues

 

 

89,437

 

 

 

95,666

 

 

 

108,252

 

 

 

60,752

 

 

 

89,437

 

 

 

95,666

 

Costs of revenues:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Cost of product sales

 

 

54,504

 

 

 

49,843

 

 

 

63,474

 

 

 

18,552

 

 

 

54,504

 

 

 

49,843

 

Cost of service agreements and license revenues

 

 

15,059

 

 

 

25,285

 

 

 

32,592

 

 

 

18,943

 

 

 

15,059

 

 

 

25,285

 

Cost of generation revenues

 

 

6,421

 

 

 

5,076

 

 

 

664

 

 

 

31,642

 

 

 

6,421

 

 

 

5,076

 

Cost of Advanced Technologies contract revenues

 

 

10,360

 

 

 

12,728

 

 

 

11,879

 

 

 

12,884

 

 

 

10,360

 

 

 

12,728

 

Total cost of revenues

 

 

86,344

 

 

 

92,932

 

 

 

108,609

 

 

 

82,021

 

 

 

86,344

 

 

 

92,932

 

Gross profit (loss)

 

 

3,093

 

 

 

2,734

 

 

 

(357

)

Gross (loss) profit

 

 

(21,269

)

 

 

3,093

 

 

 

2,734

 

Operating expenses:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Administrative and selling expenses

 

 

24,908

 

 

 

25,916

 

 

 

25,150

 

 

 

31,874

 

 

 

24,908

 

 

 

25,916

 

Research and development expenses

 

 

22,817

 

 

 

20,398

 

 

 

20,846

 

 

 

13,786

 

 

 

22,817

 

 

 

20,398

 

Restructuring expense

 

 

 

 

 

1,355

 

 

 

 

 

 

 

 

 

 

 

 

1,355

 

Total operating expenses

 

 

47,725

 

 

 

47,669

 

 

 

45,996

 

 

 

45,660

 

 

 

47,725

 

 

 

47,669

 

Loss from operations

 

 

(44,632

)

 

 

(44,935

)

 

 

(46,353

)

 

 

(66,929

)

 

 

(44,632

)

 

 

(44,935

)

Interest expense

 

 

(9,055

)

 

 

(9,171

)

 

 

(4,958

)

 

 

(10,623

)

 

 

(9,055

)

 

 

(9,171

)

Other income, net

 

 

3,338

 

 

 

247

 

 

 

622

 

 

 

93

 

 

 

3,338

 

 

 

247

 

Loss before benefit (provision) for income taxes

 

 

(50,349

)

 

 

(53,859

)

 

 

(50,689

)

Benefit (provision) for income taxes

 

 

3,015

 

 

 

(44

)

 

 

(519

)

Loss before (provision) benefit for income taxes

 

 

(77,459

)

 

 

(50,349

)

 

 

(53,859

)

(Provision) benefit for income taxes

 

 

(109

)

 

 

3,015

 

 

 

(44

)

Net loss

 

 

(47,334

)

 

 

(53,903

)

 

 

(51,208

)

 

 

(77,568

)

 

 

(47,334

)

 

 

(53,903

)

Net loss attributable to noncontrolling interest

 

 

 

 

 

 

 

 

251

 

Net loss attributable to FuelCell Energy, Inc.

 

 

(47,334

)

 

 

(53,903

)

 

 

(50,957

)

Series A warrant exchange

 

 

(3,169

)

 

 

 

 

 

 

Series B Preferred stock dividends

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,231

)

 

 

(3,200

)

 

 

(3,200

)

Series C Preferred stock deemed dividends

 

 

(9,559

)

 

 

 

 

 

 

Series D Preferred stock redemption accretion

 

 

(2,075

)

 

 

 

 

 

 

Net loss to common stockholders

 

$

(62,168

)

 

$

(57,103

)

 

$

(54,157

)

Series C Preferred stock deemed dividends and redemption value adjustment, net

 

 

(6,522

)

 

 

(9,559

)

 

 

 

Series D Preferred stock deemed dividends and redemption accretion

 

 

(9,755

)

 

 

(2,075

)

 

 

 

Net loss attributable to common stockholders

 

$

(100,245

)

 

$

(62,168

)

 

$

(57,103

)

Net loss to common stockholders per share

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

$

(0.75

)

 

$

(1.14

)

 

$

(1.82

)

 

$

(1.82

)

 

$

(9.01

)

 

$

(13.73

)

Diluted

 

$

(0.75

)

 

$

(1.14

)

 

$

(1.82

)

 

$

(1.82

)

 

$

(9.01

)

 

$

(13.73

)

Weighted average shares outstanding

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Basic

 

 

82,754,268

 

 

 

49,914,904

 

 

 

29,773,700

 

 

 

55,081,266

 

 

 

6,896,189

 

 

 

4,159,575

 

Diluted

 

 

82,754,268

 

 

 

49,914,904

 

 

 

29,773,700

 

 

 

55,081,266

 

 

 

6,896,189

 

 

 

4,159,575

 

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Net loss

 

$

(47,334

)

 

$

(53,903

)

 

$

(51,208

)

 

$

(77,568

)

 

$

(47,334

)

 

$

(53,903

)

Other comprehensive loss:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Foreign currency translation adjustments

 

 

12

 

 

 

129

 

 

 

(35

)

 

 

(244

)

 

 

12

 

 

 

129

 

Comprehensive loss

 

$

(47,322

)

 

$

(53,774

)

 

$

(51,243

)

 

$

(77,812

)

 

$

(47,322

)

 

$

(53,774

)

 

See accompanying notes to consolidated financial statements.

 


FUELCELL ENERGY, INC.

Consolidated Statements of Changes in Equity

For the Years Ended October 31, 2019, 2018, 2017, and 20162017

(Amounts in thousands, except share amounts)

 

Common Stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common Stock

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Shares

 

 

Amount

 

 

Additional

Paid-in

Capital

 

 

Accumulated

Deficit

 

 

Accumulated

Other

Comprehensive

Income (Loss)

 

 

Treasury

Stock

 

 

Deferred

Compensation

 

 

Noncontrolling

Interest in

Subsidiaries

 

 

Total

Equity

 

 

Shares

 

 

Amount

 

 

Additional

Paid-in

Capital

 

 

Accumulated

Deficit

 

 

Accumulated

Other

Comprehensive

Income (Loss)

 

 

Treasury

Stock

 

 

Deferred

Compensation

 

 

Total

Equity

 

Balance, October 31, 2015

 

 

25,964,710

 

 

$

3

 

 

$

934,488

 

 

$

(838,673

)

 

$

(509

)

 

$

(78

)

 

$

78

 

 

$

(555

)

 

$

94,754

 

Sale of common stock, prepaid warrants and warrants,

public offering

 

 

1,474,000

 

 

 

 

 

 

34,736

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

34,736

 

Exercise of prepaid warrants

 

 

1,100,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

-

 

Sale of common stock

 

 

6,023,372

 

 

 

1

 

 

 

36,055

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

36,056

 

Common stock issued, non-employee compensation

 

 

24,379

 

 

 

 

 

 

157

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

157

 

Share based compensation

 

 

 

 

 

 

 

 

3,425

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,425

 

Taxes paid upon vesting of restricted stock awards, net of

stock issued under benefit plans

 

 

587,963

 

 

 

 

 

 

(286

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(286

)

Noncontrolling interest in subsidiaries

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(251

)

 

 

(251

)

Purchase of noncontrolling shares of subsidiary

 

 

 

 

 

 

 

 

(809

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

806

 

 

 

(3

)

Preferred dividends - Series B

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,200

)

Adjustment for deferred compensation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(101

)

 

 

101

 

 

 

 

 

 

-

 

Effect of foreign currency translation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(35

)

 

 

 

 

 

 

 

 

 

 

 

(35

)

Net loss attributable to FuelCell Energy, Inc.

 

 

 

 

 

 

 

 

 

 

 

(50,957

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(50,957

)

Balance, October 31, 2016

 

 

35,174,424

 

 

$

4

 

 

$

1,004,566

 

 

$

(889,630

)

 

$

(544

)

 

$

(179

)

 

$

179

 

 

$

 

 

$

114,396

 

 

 

2,931,202

 

 

$

0

 

 

$

1,004,570

 

 

$

(889,630

)

 

$

(544

)

 

$

(179

)

 

$

179

 

 

$

114,396

 

Sale of common stock, warrants and

public offering

 

 

12,000,000

 

 

 

1

 

 

 

13,883

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13,884

 

 

 

1,000,000

 

 

 

 

 

 

13,884

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

13,884

 

Exercise of prepaid warrants and warrants

 

 

13,660,926

 

 

 

1

 

 

 

12,721

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12,722

 

 

 

1,138,411

 

 

 

1

 

 

 

12,721

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12,722

 

Sale of common stock

 

 

7,245,430

 

 

 

1

 

 

 

12,430

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12,431

 

 

 

603,786

 

 

 

 

 

 

12,431

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12,431

 

Common stock issued, non-employee compensation

 

 

86,001

 

 

 

 

 

 

129

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

129

 

 

 

7,167

 

 

 

 

 

 

129

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

129

 

Share based compensation

 

 

 

 

 

 

 

 

4,585

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4,585

 

 

 

 

 

 

 

 

 

4,585

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

4,585

 

Taxes paid upon vesting of restricted stock awards, net of

stock issued under benefit plans

 

 

1,284,673

 

 

 

 

 

 

(84

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(84

)

 

 

107,056

 

 

 

 

 

 

(84

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(84

)

Series C convertible preferred stock conversions

 

 

108,696

 

 

 

 

 

 

 

167

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

167

 

 

 

9,058

 

 

 

 

 

 

 

167

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

167

 

Preferred dividends — Series B

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,200

)

Effect of foreign currency translation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

129

 

 

 

 

 

 

 

 

 

 

 

 

129

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

129

 

 

 

 

 

 

 

 

 

129

 

Adjustment for deferred compensation

 

 

(67,334

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(101

)

 

 

101

 

 

 

 

 

 

 

 

 

(5,611

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(101

)

 

 

101

 

 

 

 

Net loss attributable to FuelCell Energy, Inc.

 

 

 

 

 

 

 

 

 

 

 

(53,903

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(53,903

)

Net loss

 

 

 

 

 

 

 

 

 

 

 

(53,903

)

 

 

 

 

 

 

 

 

 

 

 

(53,903

)

Balance, October 31, 2017

 

 

69,492,816

 

 

$

7

 

 

$

1,045,197

 

 

$

(943,533

)

 

$

(415

)

 

$

(280

)

 

$

280

 

 

$

 

 

$

101,256

 

 

 

5,791,068

 

 

$

1

 

 

$

1,045,203

 

 

$

(943,533

)

 

$

(415

)

 

$

(280

)

 

$

280

 

 

$

101,256

 

Sale of common stock, net of fees

 

 

5,715,180

 

 

 

1

 

 

 

7,128

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7,129

 

 

 

476,265

 

 

 

 

 

 

7,129

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

7,129

 

Exercise of warrants

 

 

2,595,710

 

 

 

 

 

 

3,326

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,326

 

 

 

216,309

 

 

 

 

 

 

3,326

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,326

 

Common stock issued, non-employee compensation

 

 

158,708

 

 

 

 

 

 

282

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

282

 

 

 

13,226

 

 

 

 

 

 

282

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

282

 

Share based compensation

 

 

 

 

 

 

 

 

3,238

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,238

 

 

 

 

 

 

 

 

 

3,238

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

3,238

 

Taxes paid upon vesting of restricted stock awards, net of

stock issued under benefit plans

 

 

(178,950

)

 

 

 

 

 

(660

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(660

)

 

 

(14,913

)

 

 

 

 

 

(660

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(660

)

Series C convertible preferred stock conversions

 

 

17,956,413

 

 

 

2

 

 

 

20,218

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20,220

 

 

 

1,496,368

 

 

 

 

 

 

20,220

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

20,220

 

Preferred dividends — Series B

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

(3,200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,200

)

Series D Preferred stock redemption accretion

 

 

 

 

 

 

 

 

(2,075

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(2,075

)

 

 

 

 

 

 

 

 

(2,075

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(2,075

)

Effect of foreign currency translation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

12

 

 

 

 

 

 

 

 

 

12

 

Adjustment for deferred compensation

 

 

(67,640

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(83

)

 

 

83

 

 

 

 

 

 

 

 

 

(5,637

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(83

)

 

 

83

 

 

 

 

Net loss attributable to FuelCell Energy, Inc.

 

 

 

 

 

 

 

 

 

 

 

(47,334

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(47,334

)

Net loss

 

 

 

 

 

 

 

 

 

 

 

(47,334

)

 

 

 

 

 

 

 

 

 

 

 

(47,334

)

Balance, October 31, 2018

 

 

95,672,237

 

 

$

10

 

 

$

1,073,454

 

 

$

(990,867

)

 

$

(403

)

 

$

(363

)

 

$

363

 

 

$

 

 

$

82,194

 

 

 

7,972,686

 

 

$

1

 

 

$

1,073,463

 

 

$

(990,867

)

 

$

(403

)

 

$

(363

)

 

$

363

 

 

$

82,194

 

Sale of common stock, net of fees

 

 

119,128,677

 

 

 

12

 

 

 

43,654

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

43,666

 

Common stock issued, non-employee compensation

 

 

29,454

 

 

 

 

 

 

102

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

102

 

Share based compensation

 

 

 

 

 

 

 

 

2,804

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2,804

 

Taxes paid upon vesting of restricted stock awards, net of stock

issued under benefit plans

 

 

52,607

 

 

 

 

 

 

(200

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(200

)

Series A Warrant Exchange

 

 

500,000

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

-

 

Series C convertible preferred stock conversions

 

 

3,914,218

 

 

 

 

 

 

15,489

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

15,489

 

Series C convertible preferred stock adjustment for beneficial

conversion feature

 

 

 

 

 

 

 

 

6,586

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6,586

 

Series C convertible stock redemption value adjustments

 

 

 

 

 

 

 

 

(14,597

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(14,597

)

Preferred dividends — Series B

 

 

 

 

 

 

 

 

(3,231

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,231

)

Series D convertible preferred stock conversions

 

 

62,040,496

 

 

 

6

 

 

 

31,177

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

31,183

 

Series D Preferred stock redemption accretion

 

 

 

 

 

 

 

 

(3,793

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(3,793

)

Impact of the adoption of Topic 606

 

 

 

 

 

 

 

 

 

 

 

(6,654

)

 

 

 

 

 

 

 

 

 

 

 

(6,654

)

Effect of foreign currency translation

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(244

)

 

 

 

 

 

 

 

 

(244

)

Adjustment for deferred compensation

 

 

(29,454

)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(103

)

 

 

103

 

 

 

-

 

Net loss

 

 

 

 

 

 

 

 

 

 

 

(77,568

)

 

 

 

 

 

 

 

 

 

 

 

(77,568

)

Balance, October 31, 2019

 

 

193,608,684

 

 

$

19

 

 

$

1,151,454

 

 

$

(1,075,089

)

 

$

(647

)

 

$

(466

)

 

$

466

 

 

$

75,737

 

 

See accompanying notes to consolidated financial statements.

statement

 


FUELCELL ENERGY, INC.

Consolidated Statements of Cash Flows

For the Years Ended October 31, 2019, 2018 2017 and 20162017

(Amounts in thousands, except share amounts)

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Cash flows from operating activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss

 

$

(47,334

)

 

$

(53,903

)

 

$

(51,208

)

 

$

(77,568

)

 

$

(47,334

)

 

$

(53,903

)

Adjustments to reconcile net loss to net cash used in operating

activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Share-based compensation

 

 

3,238

 

 

 

4,585

 

 

 

3,425

 

 

 

2,804

 

 

 

3,238

 

 

 

4,585

 

Loss (gain) from change in fair value of embedded derivatives

 

 

60

 

 

 

91

 

 

 

(14

)

(Gain) loss from change in fair value of embedded derivatives

 

 

(176

)

 

 

60

 

 

 

91

 

Depreciation

 

 

8,648

 

 

 

8,518

 

 

 

4,949

 

 

 

12,353

 

 

 

8,648

 

 

 

8,518

 

Amortization of non-cash interest expense

 

 

5,957

 

 

 

6,256

 

 

 

3,207

 

Non-cash interest expense on preferred stock and debt obligations

 

 

6,097

 

 

 

5,957

 

 

 

6,256

 

Deferred income taxes

 

 

(3,035

)

 

 

 

 

 

 

 

 

 

 

 

(3,035

)

 

 

 

Foreign currency transaction losses (gains)

 

 

(223

)

 

 

581

 

 

 

(324

)

Impairment of property, plant and equipment and project assets

 

 

20,360

 

 

 

 

 

 

 

Unrealized loss on derivative contract

 

 

624

 

 

 

 

 

 

 

Unrealized foreign exchange (gains) losses

 

 

(29

)

 

 

(223

)

 

 

581

 

Other non-cash transactions

 

 

760

 

 

 

165

 

 

 

451

 

 

 

716

 

 

 

760

 

 

 

165

 

Decrease (increase) in operating assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Accounts receivable

 

 

48,731

 

 

 

(51,276

)

 

 

30,235

 

 

 

4,842

 

 

 

24,169

 

 

 

(35,388

)

Unbilled receivables

 

 

(4,488

)

 

 

24,562

 

 

 

(15,888

)

Inventories

 

 

31,714

 

 

 

(7,972

)

 

 

(8,052

)

 

 

(6,427

)

 

 

31,714

 

 

 

(7,972

)

Other assets

 

 

(2,264

)

 

 

(714

)

 

 

(837

)

 

 

2,120

 

 

 

(2,264

)

 

 

(714

)

(Decrease) increase in operating liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

Increase (Decrease) in operating liabilities:

 

 

 

 

 

 

 

 

 

 

 

 

Accounts payable

 

 

(19,846

)

 

 

25,020

 

 

 

(3,019

)

 

 

(173

)

 

 

(19,846

)

 

 

25,020

 

Accrued liabilities

 

 

(11,345

)

 

 

(2,290

)

 

 

1,240

 

 

 

2,377

 

 

 

(11,345

)

 

 

(2,290

)

Deferred revenue

 

 

1,261

 

 

 

(906

)

 

 

(26,648

)

 

 

5,996

 

 

 

1,261

 

 

 

(906

)

Net cash provided by (used in) operating activities

 

 

16,322

 

 

 

(71,845

)

 

 

(46,595

)

Net cash (used in) provided by operating activities

 

 

(30,572

)

 

 

16,322

 

 

 

(71,845

)

Cash flows from investing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Capital expenditures

 

 

(10,028

)

 

 

(12,351

)

 

 

(7,726

)

 

 

(2,151

)

 

 

(10,028

)

 

 

(12,351

)

Expenditures for long-term project assets

 

 

(41,232

)

 

 

(19,726

)

 

 

(33,726

)

Cash acquired from acquisition

 

 

 

 

 

633

 

 

 

 

Project asset expenditures

 

 

(31,675

)

 

 

(41,232

)

 

 

(19,726

)

Asset acquisition

 

 

(35,474

)

 

 

 

 

 

633

 

Net cash used in investing activities

 

 

(51,260

)

 

 

(31,444

)

 

 

(41,452

)

 

 

(69,300

)

 

 

(51,260

)

 

 

(31,444

)

Cash flows from financing activities:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Repayment of debt

 

 

(16,616

)

 

 

(8,571

)

 

 

(30,452

)

 

 

(48,395

)

 

 

(16,616

)

 

 

(8,571

)

Proceeds from debt

 

 

13,091

 

 

 

17,877

 

 

 

85,935

 

 

 

69,596

 

 

 

13,091

 

 

 

17,877

 

Payments of deferred finance costs

 

 

(352

)

 

 

(206

)

 

 

(1,758

)

 

 

(3,302

)

 

 

(352

)

 

 

(206

)

Purchase of non-controlling shares of subsidiary

 

 

 

 

 

 

 

 

(3

)

Net proceeds from issuance of Series C preferred shares

 

 

 

 

 

27,866

 

 

 

 

 

 

 

 

 

 

 

 

27,866

 

Net proceeds from issuance of Series D preferred shares

 

 

25,317

 

 

 

 

 

 

 

 

 

 

 

 

25,317

 

 

 

 

Proceeds from common stock issuance and warrant exercises, net of registration fees

 

 

10,455

 

 

 

39,396

 

 

 

70,929

 

Proceeds from sale of common stock and warrant exercises, net

 

 

43,573

 

 

 

10,455

 

 

 

39,396

 

Payment of preferred dividends and return of capital

 

 

(4,178

)

 

 

(4,156

)

 

 

(4,170

)

 

 

(1,840

)

 

 

(4,178

)

 

 

(4,156

)

Common stock issued for stock plans and related expenses

 

 

 

 

 

86

 

 

 

177

 

 

 

23

 

 

 

 

 

 

86

 

Net cash provided by financing activities

 

 

27,717

 

 

 

72,292

 

 

 

120,658

 

 

 

59,655

 

 

 

27,717

 

 

 

72,292

 

Effects on cash from changes in foreign currency rates

 

 

12

 

 

 

129

 

 

 

(35

)

 

 

(244

)

 

 

12

 

 

 

129

 

Net (decrease) increase in cash, cash equivalents, and restricted cash

 

 

(7,209

)

 

 

(30,868

)

 

 

32,576

 

Net decrease increase in cash, cash equivalents, and restricted cash

 

 

(40,461

)

 

 

(7,209

)

 

 

(30,868

)

Cash, cash equivalents, and restricted cash-beginning of year

 

 

87,448

 

 

 

118,316

 

 

 

85,740

 

 

 

80,239

 

 

 

87,448

 

 

 

118,316

 

Cash, cash equivalents, and restricted cash-end of year

 

$

80,239

 

 

$

87,448

 

 

$

118,316

 

 

$

39,778

 

 

$

80,239

 

 

$

87,448

 

 

See accompanying notes to the consolidated financial statements.


Note 1. Nature of Business, Basis of Presentation and Significant Accounting Policies

Nature of Business and Basis of Presentation

FuelCell Energy, Inc., together with its subsidiaries (the “Company”, “FuelCell Energy”, “we”, “us”, or “our”) is a leading integrated fuel cell company with a growing global presence.presence in delivering environmentally-responsible distributed baseload power solutions through our proprietary, molten-carbonate fuel cell technology. We design, manufacture, install,develop turn-key distributed power generation solutions and operate and provide comprehensive service ultra-clean, efficientfor the life of the power plant. We are working to expand the proprietary technologies that we have developed over the past five decades into new products, markets and reliable stationarygeographies. Our mission and purpose remains to utilize our proprietary, state-of-the-art fuel cell power plants.  Our SureSourceplants to reduce the global environmental footprint of baseload power plants generate electricitygeneration by providing environmentally responsible solutions for reliable electrical power, hot water, steam, chilling, hydrogen, micro-grid applications, and usable high quality heat for commercial, industrial, government and utility customers.  We have commercialized our stationary carbonate fuel cells and are also pursuing the complementary development of planar solid oxide fuel cells and other fuel cell technologies.  Our operations are funded primarily through sales of equity instruments to strategic investors or in public markets, corporate and project level debt financing and local or state government loans or grants.  In order to produce positive cash flow from operations, we need to be successful at increasing annual order volume and production and in our cost reduction efforts.carbon capture.

The consolidated financial statements include our accounts and those of our wholly-owned subsidiaries.  All intercompany accounts and transactions have been eliminated.

On May 8, 2019, the Company effected a 1-for-12 reverse stock split, reducing the number of the Company’s common shares outstanding on that date from 183,411,230 shares to 15,284,269 shares.  The number of authorized shares of common stock remained unchanged at 225,000,000 shares and the number of authorized shares of preferred stock remained unchanged at 250,000 shares.  Additionally, the conversion rate of our Series B Preferred Stock (as defined elsewhere herein), the conversion price of our  Series C Preferred Stock and Series D Preferred Stock (each as defined elsewhere herein), the exchange price of our Series 1 Preferred Shares (as defined elsewhere herein), the exercise price of all then outstanding options and warrants, and the number of shares reserved for future issuance pursuant to our equity compensation plans were all adjusted proportionately in connection with the reverse stock split.   All share and per share amounts and conversion prices presented herein have been adjusted retroactively to reflect these changes.

Certain reclassifications have been made to the prior year amounts to conform to the presentation for fiscal year 2019.  The Company adopted Financial Accounting Standards Board Accounting Standards Codification Topic 606, “Revenue from Contracts with Customers” (“Topic 606”)  effective November 1, 2018 and applied the modified retrospective transition method.  As a result of the adoption of Topic 606, Unbilled receivables has been reclassified as a separate line item from Accounts receivable, net on the Consolidated Balance Sheets and Unbilled receivables has been classified as a separate item from Accounts receivable, net in the Consolidated Statement of Cash Flows for the fiscal year ended October 31, 2018 and 2017.

Liquidity

The Company faced significant liquidity challenges in fiscal 2019, which were addressed through a series of actions late in the fiscal year and subsequent to fiscal year end.  In the second and third quarters of fiscal 2019, management concluded that, as a result of the Company’s history of negative cash flows from operating and investing activities, negative working capital, aged accounts payable, forbearance agreements with suppliers, and significant short-term debt maturities, there was substantial doubt about the Company’s ability to continue as a going concern. To address these issues, we restructured our management team and our operations in ways that are intended to support our growth and achieve our profitability and sustainability goals. We raised capital under our at-the-market sales plan, which allowed us to pay down our accounts payable and stay current on our forbearance agreements. In addition, we repaid a substantial portion of our short-term debt, retired our Series C and Series D Preferred Stock obligations, entered into new or amended financing arrangements and entered into a license arrangement with EMRE, which resulted in $10.0 million of up-front proceeds.  While some of the indicators of substantial doubt still exist, such as historical losses and negative cash flows, as a result of the previous actions taken by the Company in response to the liquidity challenges that arose in the second and third quarters of fiscal 2019, management has concluded that substantial doubt was alleviated and the Company expects to meet its obligations for at least one year from the date of issuance of these financial statements.  Key definitive agreements which support the Company’s future liquidity position include:

On October 31, 2019, the Company and certain of its subsidiaries as guarantors entered into a $200.0 million senior secured credit facility with Orion Energy Partners Investment Agent, LLC, as Administrative Agent and Collateral Agent (the “Agent”), and its affiliates, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., and Orion Energy


Credit Opportunities Fund II PV, L.P., as lenders (the “Orion Facility”).  The Orion Facility is structured as a delayed draw term loan to be provided by the lenders.  In conjunction with the closing of the Orion Facility, on October 31, 2019, the Company drew down $14.5 million (the “Initial Funding”). The Company drew down an additional $65.5 million on November 22, 2019 (the “Second Funding”). The Company may draw the remainder of the Orion Facility, $120.0 million, over the first 18 months following the Initial Funding and subject to the Agent’s approval to fund: (i) construction costs, inventory and other capital expenditures of  additional fuel cell projects with contracted cash flows (under PPAs with creditworthy counterparties) that meet or exceed a mutually agreed coverage ratio; and (ii) inventory, working capital, and other costs that may be required to be delivered by the Company on purchase orders, service agreements, or other binding customer agreements with creditworthy counterparties.

On November 5, 2019, the Company signed a two-year Joint Development Agreement (“JDA”) with EMRE, pursuant to which the Company will continue exclusive research and development efforts with EMRE to evaluate and develop new and/or improved carbonate fuel cells to reduce carbon dioxide emissions from industrial and power sources, in exchange for (a) payment of (i) an exclusivity and technology access fee of $5.0 million, (ii) up to $45.0 million for research and development efforts, and (iii) milestone-based payments of up to $10.0 million after certain technological milestones are met, and (b) certain licenses.

As of October 31, 2019, FCE Ltd. or the Company, as the guarantor of FCE Ltd.’s payment obligations with respect to the Series 1 Preferred Shares, was obligated to pay, on or before December 31, 2020, all accrued and unpaid dividends on the Series 1 Preferred Shares and the balance of the principal redemption price with respect to all of the Series 1 Preferred Shares. Interest under the Series 1 Preferred Shares accrued at annual rate of 5%. In addition, the holder of the Series 1 Preferred Shares had the right to exchange such shares for fully paid and non-assessable shares of common stock of the Company at certain specified prices, and FCE Ltd. had the option of making dividend payments in the form of common stock of the Company or cash.  As of October 31, 2019, the Company did not have sufficient shares available to satisfy these obligations.  On January 20, 2020, the Company, FCE Ltd. and Enbridge entered into a letter agreement (the “January 2020 Letter Agreement”), pursuant to which they agreed to amend the articles of FCE Ltd. relating to and setting forth the terms of the Series 1 Preferred Shares to: (i) remove the provisions of the articles permitting or requiring the issuance of shares of the Company’s common stock in exchange for the Series 1 Preferred Shares or as payment of amounts due to the holders of the Series 1 Preferred Shares, (ii) remove certain provisions of the articles relating to the redemption of the Series 1 Preferred Shares, (iii) increase the annual dividend rate, commencing on January 1, 2020, to 15%, (iv) extend the final payment date for all accrued and unpaid dividends and all return of capital payments (i.e., payments of the principal redemption price) from December 31, 2020 to December 31, 2021, (v) clarify when dividend and return of capital payments are to be made in the future and extend the quarterly dividend and return of capital payments through December 31, 2021 (which were previously to be paid each quarter through December 31, 2020), (vi) remove certain terms and provisions of the articles that are no longer applicable, and (vii) make other conforming changes to the articles.

The Company’s future liquidity will be dependent on obtaining a combinationits ability to (i) timely complete current projects in process within budget, including approved amounts that have been financed as financing does not cover overages, (ii) increase cash flows from its generation portfolio, including by meeting conditions required to timely commence operations of increasednew projects and operating its generation portfolio in compliance with minimum performance guarantees, (iii) obtain approval of and receive funding for project construction under the Orion Facility and meet conditions for release of funds, (iv) increase order and contract volumes, increased cash flows from our generationwhich would lead to additional product sales and service portfoliosservices agreements, (v) obtain funding for and receive payment for research and development under current and future Advanced Technology contracts, including achieving a $5 million technological performance milestone in the JDA during calendar year 2020, and (vi) implement the cost reductions necessary to achieve profitable operations. To grow our generation portfolio, the Company will invest in developingOur business model requires substantial outside financing arrangements and building turn-key fuel cell projects which will be owned by the Company and classified as project assets on the balance sheet. This strategy requires liquidity and is expected to continue to have increasing liquidity requirements as project sizes increase. We may commence building project assets upon the award of a project or execution of a multi-year PPA with an end-user that has a strong credit profile.  Project development and construction cycles, which span the time between securing a PPA and commercial operationsatisfaction of the plant, vary substantiallyconditions of such financing arrangements to deploy our projects and can take years. As a resultfacilitate the growth of these project cyclesour business. If financing is not available to us on acceptable terms if and strategic decisions to financewhen needed, if we do not satisfy the constructionconditions of certainour financing arrangements or if we spend more than the financing approved for projects, we may needbe required to make significant up-front investmentsreduce planned spending, sell assets, seek alternative financing and take other measures, which could have a material adverse effect on our operations.


As of resources in advanceJanuary 14, 2020, we had 14,034,001 shares of the receiptcommon stock available for issuance, of any cash from the sale or long-term financing of such projects. These up-front investments may include using our working capital, availabilitywhich 10,290,934 shares were reserved for issuance under various convertible securities, options, and warrants, under our construction financing facilities or other financing arrangements. Delaysstock purchase and incentive plans, and under our at-the-market sales plan. The limited number of shares available for issuance limits our ability to raise capital in construction progress or in completing financing or the saleequity markets and satisfy obligations with shares instead of our projects maycash, which could adversely impact our liquidity.ability to fund our business and operations.  We must obtain stockholder approval to increase the number of shares of common stock we are authorized to issue under our Certificate of Incorporation.  At the April 4, 2019 annual meeting of stockholders, our stockholders did not approve our request to increase the number of shares of common stock that we are authorized to issue from 225,000,000 shares to 335,000,000 shares. In the event that the Company’s Board of Directors determines to seek stockholder approval for an increase in authorized shares in the future, there can be no assurances of obtaining such stockholder approval.

 

While there can be no assurances, we anticipate raising additional required capital from new and existing investors and lenders. We expect to maintain appropriate cashwork with lenders and financial institutions to secure long-term debt, levels based upontax equity and sale-leasebacks for our expected cash requirementsproject asset portfolio as we achieve the Commercial Operation Dates for operations,these projects. This financing, if received, may allow the Company to recycle capital expenditures, construction of project assets and principal, interest and dividend payments.  In the future, we may also engage in additional debt or equity financings, including project specific debt financings under existing and new facilities.  We believe that, when necessary, we will have adequate access tofrom these projects by reinvesting the capital markets, althoughin other projects and to pay down the timing, size and terms of any financing will depend on multiple factors, including market conditions, future order flowOrion Facility over time. It should be noted that the lenders and the needAgent under the Orion Credit Agreement (“Orion”) have broad approval rights over our ability to adjust production capacity.draw and allocate funds from the Orion Facility. There can be no assurance that we will be ablethe Company can obtain such financing or that the Company can obtain such financing on terms acceptable to the Company. If the Company is unable to obtain such financing or raise additional capital, at the times, inCompany may reduce its expenditures or slow its project spending. If the amounts,Company cannot obtain such financing or cannot obtain such financing on terms acceptable to the terms required forCompany, it would negatively impact the implementation of our business plan and strategy. In addition, our capital-intensiveCompany’s business model, of building generation assets increasesoperations, and liquidity.

We believe that our cash flows from our existing backlog, including PPAs, service agreements and Advanced Technology contracts, combined with our current unrestricted cash and cash equivalents, cash which is expected to become unrestricted, and available borrowings under the risk that weOrion Facility will be unablesufficient to successfully implementmeet our plans, particularly if we do not raise additional capital in the amounts required. If we are unable to raise additional capital at the times or in the amounts required, or on terms favorable to us, our growth potential may be adversely affected and we may have to modify our plans which could include restructuring, workforce reductions, change in production volumes and asset or intellectual property sales. If these strategies are not successful, we may be required to delay, reduce and/or cease our operations.

The Company believes that its current working capital andanticipated cash anticipated to be generated from future operations, as well as recent debt incurred and cash received under our project financing facilities and remaining availability under these project financing facilities (See Notes 12 and 22) and proceeds from future equity offerings, will provide sufficient liquidity to fund operationsneeds for at least one year after the date that the financial statements are issued. The Company has an At The Market Issuance Sales Agreement in place (see Note 13) which could supplement proceeds through equity offerings dependent upon market conditions. next 12 months.


Significant Accounting Policies

Cash and Cash Equivalents and Restricted Cash

All cash equivalents consist of investments in money market funds with original maturities of three months or less at date of acquisition. We place our temporary cash investments with high credit quality financial institutions. As of October 31, 2018, $40.92019, $30.3 million of cash and cash equivalents was pledged as collateral for letters of credit and for certain banking requirements and contractual commitments, compared to $38.2$40.9 million pledged as of October 31, 2017.2018.  The restricted cash balance includes $15.0 million as of October 31, 2018 and 2017,included $15.0 million, which has been placed in a Grantor's Trust account to securesecured certain obligations of the Company under a 15-year service agreement for the Bridgeport Fuel Cell Park project and has beenwas classified as Restrictedlong-term.  In connection with the acquisition of the Bridgeport Fuel Cell Project, $15.0 million of restricted cash was released on May 9, 2019.  The restricted cash balance as of October 31, 2019 and cash equivalents - long-term.2018 also includes $17.9 million and $17.7 million, respectively, to support obligations related to the PNC sale-leaseback transactions.  As of October 31, 20182019 and 2017,2018, we had outstanding letters of credit of $3.8$5.7 million and $2.9$3.8 million, respectively, which expire on various dates through August 2025.  Cash and cash equivalents as of October 31, 2018 and 2017 also included $3.0 thousand and $3.0 million, respectively, of cash advanced by POSCO Energy Co., Ltd. (“POSCO Energy”) for raw material purchases made on its behalf by FuelCell Energy.  Under an inventory procurement agreement that ensures coordinated purchasing from the global supply chain, FuelCell Energy provides procurement services for POSCO Energy and receives compensation for services rendered.  While POSCO Energy makes payments to us in advance of supplier requirements, quarterly receipts may not match disbursements.

Inventories and Advance Payments to Vendors

Inventories consist principally of raw materials and work-in-process. Cost is determined using the first-in, first-out cost method.  In certain circumstances, we will make advance payments to vendors for future inventory deliveries. These advance payments are recorded as Other current assets on the Consolidated Balance Sheets.

Inventories are reviewed to determine if valuation allowances are required for excess quantities or obsolescence. This review includes analyzing inventory levels of individual parts considering the current design of our products and production requirements as well as the expected inventory requirements for maintenance on installed power plants.


Project Assets

Project assets consist of capitalized costs for fuel cell projects in various stages of development, whereby we have entered into power purchase agreements (“PPAs”) prior to entering into a definitive sales or long-term financing agreement for the project, capitalized costs for fuel cell projects which are the subject of a sale-leaseback transaction with PNC Energy Capital, LLC (“PNC”), projects in development for which we expect to secure long-term contracts or projects retained by the Company under a merchant model.  Certain project assets currently in development are actively being marketed and may be sold, although we may choose to retain ownership of one or more of these projects after they become operational if we determine it would be of economic and strategic benefit.  Project asset costs include costs for developing and constructing a complete turn-key fuel cell project. Development costs can include legal, consulting, permitting, interconnect, and other similar costs. OnceTo the extent we enter into a definitive sales agreement, we expense project assets to cost of sales after the respective project asset is sold to a customer and all revenue recognition criteria have been met.  There were no short-term project assets as of October 31, 2018 or 2017.

Property, Plant and Equipment

Property, plant and equipment are stated at cost, less accumulated depreciation which is recorded based on the straight-line method over the estimated useful lives of the respective assets. Leasehold improvements are amortized on the straight-line method over the shorter of the estimated useful lives of the assets or the term of the lease. When property is sold or otherwise disposed of, the cost and related accumulated depreciation are removed from the accounts and any resulting gain or loss is reflected in operations for the period.

Goodwill and Intangible Assets

Goodwill represents the excess of the aggregate purchase price over the fair value of the net assets acquired in a purchase business combination and is reviewed for impairment at least annually.


Accounting Standards Codification Topic 350, "Intangibles - Goodwill and Other", (“ASC 350”) permits the assessment of qualitative factors to determine whether events and circumstances lead to the conclusion that it is necessary to perform the two-step goodwill impairment test required under ASC 350.

The Company completed its annual impairment analysis of goodwill and the in-process research & development assets (IPR&D)(“IPR&D”) as of July 31, 20182019 and 2017.2018.  The goodwill and IPR&D asset are both held by the Company’s Versa Power Systems, Inc. (“Versa”) reporting unit.  Goodwill and the IPR&D asset are also reviewed for possible impairment whenever changes in conditions indicate that the fair value of a reporting unit or IPR&D asset areis more likely than not below its carrying value.  No impairment charges were recorded during any of the fiscal years presented.ended October 31, 2019, 2018 and 2017.

Impairment of Long LivedLong-Lived Assets (including Project Assets)

Long-lived assets are reviewed for impairment whenever events or changes in circumstances indicate that the carrying amount of an asset group may not be recoverable. If events or changes in circumstances indicate that the carrying amount of the asset group may not be recoverable, we compare the carrying amount of an asset group to future undiscounted net cash flows, excluding interest costs, expected to be generated by the asset group and their ultimate disposition. If the sum of the undiscounted cash flows is less than the carrying value, the impairment to be recognized is measured by the amount by which the carrying amount of the asset group exceeds the fair value of the asset group.The Company recorded a $0.5 million impairment of a project asset

Revenue Recognition (Including Lease Agreements and Royalty Income)

Refer to Note 2. “Revenue Recognition” for information on the Company’s revenue recognition accounting policy which is effective for the fiscal year ended October 31, 2018 due to the termination2019 upon adoption of a project. No impairments were recordedASU 2014-09, “Revenue from Contracts with Customers.”

The revenue recognition policy for thefiscal years ended October 31, 2018 and 2017 and 2016.was as follows:

Revenue Recognition

We earnThe Company earned revenue from (i) the sale and installation of fuel cell power plants including site engineering and construction services, (ii) the sale of completed project assets, (iii) equipment only sales (modules, balance of plants (“BOP”), component part kits and spare parts to customers), (iv) performance under long-term service agreements, (v) the sale of electricity and other value streams under power purchase agreements (“PPAs”) and utility tariffs from project assets retained by the Company, (vi) license fees and royalty income from manufacturing and technology transfer agreements, and (vii) government and customer-sponsored Advanced Technologies projects.


As further clarification, revenue elements are classified as follows:

Product. Includes the sale of completed project assets, the sale and installation of fuel cell power plants including site engineering and construction services, and, the sale of component part kits, modules, BOPs and spare parts to customers.

Service and license. Includes performance under long-term service agreements for power plants owned by third parties and license fees and royalty income from manufacturing and technology transfer agreements.

Generation. Includes the sale of electricity under PPAs and utility tariffs from project assets retained by the Company.  This also includes revenue received from the sale of other value streams from these assets including the sale of heat, steam and renewable energy credits.

Advanced Technologies. Includes revenue from customer-sponsored and government-sponsored Advanced Technologies projects.

OurThe Company’s revenue is generated from customers located throughout the U.S., Europe and Asia and from agencies of the U.S. government.

For customer contracts where the Company is responsible for the supply of equipment and site construction (full turn-key construction project) and has adequate cost history and estimating experience, and with respect to which management believes it can reasonably estimate total contract costs, revenue is recognized under the percentage of completion method of accounting. The use of percentage of completion accounting requires significant judgment relative to estimating total contract costs, including assumptions relative to the length of time to complete the contract, the nature and complexity of the work to be performed and total project costs. Our estimates are based upon the professional knowledge and experience of our engineers, project managers and other personnel, who review each long-term contract on a quarterly basis to assess the contract’s schedule, performance, technical matters and estimated cost at


completion. When changes in estimated contract costs are identified, such revisions may result in current period adjustments to operations applicable to performance in prior periods. Revenues are recognized based on the percentage of the contract value that incurred costs to date bearas compared to estimated total contract costs, after giving effect to estimates of costs to complete based on most recent information. For customer contracts for new or significantly customized products, where management does not believe it has the ability to reasonably estimate total contract costs, revenue is recognized using the completed contract method and therefore all revenue and costs for the contract are deferred and not recognized until installation and acceptance of the power plant is complete. We recognize anticipated contract losses as soon as they become known and estimable.  Actual results could vary from initial estimates and estimates will be updated as conditions change.

Revenue from equipment only sales where the Company does not have the obligations associated with overall construction of the project (modules, BOPs, fuel cell kits and spare parts sales) iswas recognized upon shipment or title transfer under the terms of the customer contract. Terms for certain contracts provide for a transfer of title and risk of loss to our customers at our factory locations and certain key suppliers upon completion of our contractual requirement to produce products and prepare the products for shipment. A shipment in place may occur in the event that the customer is not ready to take delivery of the products on the contractually specified delivery dates.

In June 2017, an EPC contractor, Hanyang Industrial Development Co., Ltd (“HYD”), was awarded a 20 MW project by a utility in South Korea (Korea Southern Power Company)  utilizing the Company’s SureSource technology. The Company was able to participate on this Korean project pursuant to a Memorandum of Understanding (“MOU”) with POSCO Energy that permitted the Company access to the Asian fuel cell market, including the sale of SureSource solutions in South Korea.  Effective July 15, 2018, the MOU was terminated.  On August 29, 2017, the Company entered into a contract with HYD pursuant to which the Company provided equipment to HYD for this 20 MW fuel cell project as well as ancillary services including plant commissioning.  Construction began in the fall of 2017 and the installation became operational in the summer of 2018.  The value of the contract to the Company was $70 million.  The Company assessed the contract using the multi-element revenue recognition guidance and determined that each of the modules and BOPs as well as the ancillary services each represented separate deliverables with stand-alone value.  The full contract value was allocated to each element based on estimated selling prices using cost plus expected margins and revenue recognition occurred upon completion of shipping and customer acceptance of each piece of equipment and the proportional performance method was used for the ancillary services provided.  Approximately $39 million of revenue was recognized in the fourth quarter of fiscal 2017 related to this contract and approximately $31 million was recognized during fiscal year 2018. 


Revenue from service agreements iswas generally recorded ratably over the term of the service agreement, as ourthe Company’s performance of routine monitoring and maintenance under these service agreements is generally expected to be incurred on a straight-line basis.  For service agreements where we expectthe Company expects to have module exchanges at some point during the term (generally service agreements in excess of five years), the costs of performance are not expected to be incurred on a straight-line basis, and therefore, a portion of the initial contract value related to the module exchange(s) is deferred and is recognized upon such module replacement event(s).

We recognizeThe Company recognized license fees and other revenue over the term of the associated agreement. The Company records license fees and royalty income from POSCO Energy as a result of manufacturing and technology transfer agreements entered into in 2007, 2009 and 2012.  The manufacturing and technology transfer agreements wethe Company entered into with POSCO Energy collectively provide them with the rights to manufacture SureSource power plants in South Korea and exclusive rights to sell in Asia.

Under PPAs and project assets retained by the Company, revenue from the sale of electricity and other value streams are recognized as electricity is provided to customers.  These revenues are classified as generation revenues.

Advanced Technologies contracts includeare entered into with both private industry and government entities.  Revenue from most government sponsored Advanced Technologies projects is recognized as direct costs are incurred plus allowable overhead less cost share requirements, if any.  Revenue from fixed price Advanced Technologies projects is recognized using percentage of completion accounting. Advanced Technologies programs are often multi-year projects or structured in phases with subsequent phases dependent on reaching certain milestones prior to additional funding being authorized.  Government contracts are typically structured with cost-reimbursement and/or cost-shared type contracts or cooperative agreements. We are reimbursed for reasonable and allocable costs up to the reimbursement limits set by the contract or cooperative agreement, and on certain contracts we are reimbursed only a portion of the costs incurred.


Sale-Leaseback Accounting

The Company, through a wholly-owned subsidiary, has entered into sale-leaseback transactions for commissioned project assets where we have entered into a PPA with a customer who is both the site host and end user of the power (the "Customer").power.  Due to the Company's continuing involvement with the project and the projects being considered integral equipment, sale accounting is precluded by ASC 840-40, “Leases”.  Accordingly, the Company uses the financing method to account for these transactions.

Under the financing method of accounting for a sale-leaseback, the Company does not recognize as income any of the sale proceeds received from the lessor that contractually constitutes payment to acquire the assets subject to these arrangements. Instead, the sale proceeds received are accounted for as financing obligations and leaseback payments made by the Company are allocated between interest expense and a reduction to the financing obligation. Interest on the financing obligation is calculated using the Company’s incremental borrowing rate at the inception of the arrangement on the outstanding financing obligation. While we receive financing for the full value of the related power plant asset, we have not recognized revenue on the sale leasebacksale-leaseback transaction.  Instead, revenue is recognized through the sale of electricity and energy credits which are generated as energy is produced.  The sale-leaseback arrangements with PNC allow the Company to repurchase the project assets at fair market value.

Warranty and Service Expense Recognition

We warranty our products for a specific period of time against manufacturing or performance defects. Our U.S. warranty is limited to a term generally 15 months after shipment or 12 months after acceptance of our products.  We accrue for estimated future warranty costs based on historical experience. We also provide for a specific accrual if there is a known issue requiring repair during the warranty period. Estimates used to record warranty accruals are updated as we gain further operating experience.  As of October 31, 20182019 and 2017,2018, the warranty accrual, which is classified in accrued liabilitiesas an Accrued liability on the Consolidated Balance Sheets, totaled $0.1 million and $0.3 million, respectively.million.

In addition to the standard product warranty, we have entered into service agreements with certain customers to provide monitoring, maintenance and repair services for fuel cell power plants. Under the terms of these service agreements, the power plant must meet a minimum operating output during the term. If minimum output falls below the contract requirement, we may be subject to performance penalties or may be required to repair and/or replace the customer's fuel cell module. The Company has accrued for performance guarantees for service agreements of $1.1$0.8 million and $2.2$1.1 million as of October 31, 2019 and 2018, and 2017, respectively.  Refer to Note 2. “Revenue Recognition” for the change in accounting effective as of November 1, 2019 relating to performance guarantees.


The Company records loss accruals for service agreements when the estimated cost of future module exchanges and maintenance and monitoring activities exceeds the remaining unrecognized contract value. Estimates for future costs on service agreements are determined by a number of factors including the estimated remaining life of the module, used replacement modules available and future operating plans for the power plant. Our estimates are performed on a contract by contract basis and include cost assumptions based on what we anticipate the service requirements will be to fulfill obligations for each contract.  As of October 31, 2018,2019, our loss accruals on service agreements totaled $0.9$3.3 million compared to $1.1$0.9 million as of October 31, 2017.2018.

At the end of our service agreements, customers are expected to either renew the service agreement or based on the Company's rights to title of the module, the module will be returned to the Company as the plant is no longer being maintained.  As of October 31, 2018,2019, the Company had $1.2$1.0 million related to the residual value of replacement modules in power plants under service agreements compared to $1.0$1.2 million as of October 31, 2017.2018.  


License Agreements and Royalty Income

The Cell Technology Transfer and License Agreement dated October 31, 2012 by and between the Company and POSCO Energy (the "CTTA") provides POSCO Energy with the technology to manufacture SureSource modules in South Korea and the exclusive market access to sell power plants throughout Asia.  In connection with the CTTA, fees totaling $18.0 million were paid between fiscal year 2012 and 2015 and are being amortized over the term of the CTTA, which is fifteen years.  

The Company is entitled to receive royalties from POSCO Energy under the 2007 Technology Transfer, Distribution and Licensing Agreement ("TTA") and the 2009 Stack Technology Transfer and License Agreement ("STTA") at the rate of 3.0% of POSCO Energy net sales associated with the Company’s technology.  Additionally, under the STTA, license fee income aggregating $10.0 million is being recognized ratably over fifteen years beginning November 1, 2012.  Under the terms of the TTA, POSCO Energy manufactures BOP in South Korea. The STTA allows POSCO Energy to produce fuel cell modules which will be combined with BOP manufactured in South Korea to complete electricity-producing fuel cell power plants for sale in Asia.

In April 2014, the Company entered into an Integrated Global Supply Chain Plan Agreement ("IGSCP") with POSCO Energy.  FuelCell Energy provides procurement services for POSCO Energy and receives fixed compensation for services rendered.

The Company recorded revenue of $2.1 million, $2.7 million and $6.2 million for the years ended October 31, 2018, 2017 and 2016, respectively, relating to the above agreements.

Deferred Revenue and Customer Deposits

We receive payments from customers upon the acceptance of a purchase order and when contractual milestones are reached. These payments may be deferred based on the nature of the payment and status of the specific project. Deferred revenue is recognized as revenue in accordance with our revenue recognition policies summarized above.

Research and Development Costs

We perform both customer-sponsored research and development projects based on contractual agreement with customers and company-sponsored research and development projects.

Costs incurred for customer-sponsored projects include manufacturing and engineering labor, applicable overhead expenses, materials to build and test prototype units and other costs associated with customer-sponsored research and development contracts. Costs incurred for customer-sponsored projects are recorded as cost of Advanced Technologies contract revenues in the consolidated statementsConsolidated Statements of operations.Operations.

Costs incurred for company-sponsored research and development projects consist primarily of labor, overhead, materials to build and test prototype units and consulting fees. These costs are recorded as research and development expenses in the consolidated statements of operations.

Concentrations

We contract with a concentrated number of customers for the sale of our products, for service agreement contracts and for Advanced Technologies contracts. For the years ended October 31, 2019, 2018 2017 and 2016,2017, our top customers accounted for 84%80%, 78%86% and 75%79%, respectively, of our total annual consolidated revenue.


The percent of consolidated revenues from each customer for the years ended October 31, 2019, 2018 2017 and 2016,2017, respectively, are presented below.

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Hanyang Industrial Development Co., LTD

 

 

35

%

 

 

40

%

 

 

%

ExxonMobil Research and Engineering Company (EMRE)

 

 

40

%

 

 

6

%

 

 

9

%

Dominion Bridgeport Fuel Cell, LLC

 

 

13

%

 

 

3

%

 

 

11

%

Connecticut Light and Power

 

 

11

%

 

 

%

 

 

%

U.S. Department of Energy (DOE)

 

 

6

%

 

 

8

%

 

 

9

%

Pfizer, Inc.

 

 

6

%

 

 

4

%

 

 

4

%

POSCO Energy

 

 

3

%

 

 

5

%

 

 

6

%

Clearway Energy (formerly NRG Yield, Inc.)

 

 

15

%

 

 

%

 

 

%

 

 

1

%

 

 

15

%

 

 

%

Hanyang Industrial Development Co., Ltd. (HYD)

 

 

%

 

 

35

%

 

 

40

%

AEP Onsite Partners, LLC

 

 

10

%

 

 

%

 

 

%

 

 

%

 

 

10

%

 

 

%

U.S. Department of Energy

 

 

8

%

 

 

9

%

 

 

8

%

ExxonMobil

 

 

6

%

 

 

9

%

 

 

3

%

POSCO Energy

 

 

5

%

 

 

6

%

 

 

48

%

Dominion Bridgeport Fuel Cell, LLC

 

 

3

%

 

 

11

%

 

 

6

%

Avangrid Holdings (through its various subsidiaries)

 

 

2

%

 

 

3

%

 

 

10

%

Total

 

 

84

%

 

 

78

%

 

 

75

%

 

 

80

%

 

 

86

%

 

 

79

%

 

Derivatives

We do not use derivatives for speculative purposes and, through the end of fiscal year 2018, we have not used derivatives for hedging or trading purposes. Our derivative instruments consist ofinclude embedded derivatives in our Series 1 Preferred Shares. We account for these derivatives using the fair-value method with changesChanges in fair value are recorded to Other income, net on the Consolidated Statements of Operations.   Refer to Note 1415. “Redeemable Preferred Stock” for additional information.


The Company also has an interest rate swap that is adjusted to fair value on a quarterly basis.  The fair value adjustment is based on Level 2 inputs including primarily the forward LIBOR curve available to swap dealers.  The fair value methodology involves comparison of (i) the sum of the present value of all monthly variable rate payments based on a reset rate using the forward LIBOR curve and (ii) the sum of the present value of all monthly fixed rate payments on the notional amount which is equivalent to the outstanding principal amount of the loan.  Refer to Note 13. “Debt” for further details.

Use of Estimates

The preparation of financial statements and related disclosures in conformity with accounting principles generally accepted in the U.S. requires management to make estimates and assumptions that affect the reported amounts of assets, liabilities, revenues and expenses and the disclosure of contingent assets and liabilities. Estimates are used in accounting for, among other things, revenue recognition, excess and obsolete inventories, product warranty costs, accruals for service agreements, allowance for uncollectible receivables, depreciation and amortization, impairment of goodwill, indefinite-lived intangible assets and long-lived assets, valuation of derivatives, income taxes, and contingencies. Estimates and assumptions are reviewed periodically, and the effects of revisions are reflected in the consolidated financial statements in the period they are determined to be necessary.  Due to the inherent uncertainty involved in making estimates, actual results in future periods may differ from those estimates.

Foreign Currency Translation

The translation of the financial statements of FCE Korea Ltd., FCES GmbH and Versa Power Systems Ltd. results in translation gains or losses, which are recorded in accumulated other comprehensive loss within stockholders’ equity.

Our Canadian subsidiary, FCE FuelCell Energy, Ltd., is financially and operationally integrated and the functional currency is the U.S. dollar. We are also subject to foreign currency transaction gains and losses as certain transactions are denominated in foreign currencies. We recognized net foreign currency transaction (losses) gains (losses) of $(0.1) million, $0.3 million $(0.7) million and $0.3$(0.7) million for the years ended October 31, 2019, 2018 2017 and 2016,2017, respectively. These amounts have been classified as otherincluded in Other income, net in the consolidated statementsConsolidated Statements of operations.

Operations.

 

Recently Adopted Accounting Guidance

In March 2016,May 2014, the Financial Accounting Standards Board (the “FASB”) issued Accounting Standards Update (“ASU”) No. 2016-09, “Compensation - Stock Compensation” (Topic 718): Improvements to Employee Share-Based Payment Accounting (“ASU 2016-09”). ASU 2016-09 is effective for fiscal years beginning after December 15, 2016, including interim periods within those fiscal years. The adoption of ASU 2016-09 resulted in no net impact to equity as the additional deferred tax asset recorded for previously unrecognized net operating loss carryforwards of $7.8 million was offset by a valuation allowance of the same amount.


In July 2015, the FASB issued ASU 2015-11, “Inventory (Topic 330) – Simplifying the Measurement of Inventory.” This guidance changes the measurement principle for inventory from the lower of cost or market to the lower of cost and net realizable value. Net realizable value is defined as estimated selling prices in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. This guidance is effective for fiscal years, and interim periods within those years, beginning after December 15, 2016. The Company adopted this standard in fiscal year 2018. The adoption of this standard did not have an impact on the Company’s consolidated financial statements.

Recent Accounting Guidance Not Yet Effective

In May 2014, the FASB issued ASU No. 2014-09, “Revenue from Contracts with Customers (Topic 606).” This ASU provides for five principles which should be followed to determine  The adoption of Topic 606 by the appropriate amount and timing of revenue recognition for the transfer of goods and services to customers. The principles in this ASU should be applied to all contracts with customers regardless of industry. The Company will adopt this ASU in the first quarter of fiscal year 2019.  The Company has numerous different revenue sources including the sale and installation of fuel cell power plants, site engineering and construction services, sale of modules and spare parts, extended warranty service agreements, sale of electricity under power purchase agreements, license fees and royalty income from manufacturing and technology transfer agreements and customer-sponsored Advanced Technologies projects.  This requires application of various revenue recognition methods under current accounting guidance.  The Company has decided to useon November 1, 2018 using the modified retrospective transition method. The adoption of this ASU is expected to resultmethod resulted in a cumulative effect adjustment increasingthat increased Accumulated deficit by approximately between $7.0 million and $10.0 million on November 1, 2018, which is the result of the change in timing of revenue recognition for the Company’s service agreements and license revenue.  

In February 2016, the FASB issued ASU 2016-02, “Leases” which, for operating leases, requires a lessee to recognize a right-of-use asset and a lease liability, initially measured at the present value of the lease payments, in its balance sheet. The standard also requires a lessee to recognize a single lease cost, calculated so that the cost of the lease is allocated over the lease term, generally on a straight-line basis. This ASU is effective for public companies for fiscal years beginning after December 15, 2018, including interim periods within those fiscal years (which, for the Company, will be the first quarter of fiscal year 2020). Early adoption is permitted. The Company has both operating and capital leases (refer to Note 18. “Commitments and Contingencies”) as well as sale-leasebacks accounted for under the finance method and may have other arrangements that contain embedded leases as characterized in this ASU.  We expect that adoption of this ASU will result in the recognition of right-of-use assets and lease liabilities not currently recorded in our consolidated financial statements under existing accounting guidance. However, we are still evaluating all of the Company’s contractual arrangements and the impact that adoption of ASU 2016-02 will have on the Company’s consolidated financial statements.$6.7 million.

 

In January 2017, the FASB issued ASU No. 2017-04, “Intangibles-Goodwill and Other (Topic 350): Simplifying the Test for Goodwill Impairment” which provides for a one-step quantitative impairment test, whereby a goodwill impairment loss will be measured as the excess of a reporting unit’s carrying amount over its fair value (not to exceed the total goodwill allocated to that reporting unit). It eliminates Step 2 of the current two-step goodwill impairment test, under which a goodwill impairment loss is measured by comparing the implied fair value of a reporting unit’s goodwill with the carrying amount of that goodwill. The standard isCompany early adopted this ASU effective on a prospective basis for interim and annual periods beginning after December 15, 2019, with earlyNovember 1, 2018.  The adoption permitted. We are currently assessing the impact the standard willof this ASU did not have on the Company, but it is not expected to have a materialan impact on the Company’s consolidated financial statementsstatements.    

Recent Accounting Guidance Not Yet Effective

In February 2016, the FASB issued ASU 2016-02, “Leases” that amends the accounting and disclosure requirements for leases.  The new guidance requires that a lessee shall recognize a right-of-use (“ROU”) asset and a corresponding lease liability, initially measured at the present value of the lease payments, in its balance sheet.  Leases will be classified as either finance or operating, with classification affecting the pattern of expense recognition in the Consolidated Statements of Operations.  The Company was required to adopt the new guidance on November 1, 2019.  In July 2018, the FASB issued an amendment to the new leasing standard which provides an alternative transition method that allows companies to recognize a cumulative effect adjustment to the opening balance sheet upon adoption.  The Company intends to elect this alternative transition method and forgo the adjustments to comparative-period financial information.


The Company has both operating and capital leases (refer to Note 20. “Commitments and Contingencies”) as well as sale-leaseback transactions that are accounted for under the finance method.  The new standard provides entities with several practical expedient elections.  Among them, the Company intends to elect the package of practical expedients that permits the Company to not reassess prior conclusions related to its leasing arrangements, lease classifications and initial direct costs. In addition, the Company plans to elect the practical expedients to not separate lease and non-lease components, to use hindsight in determining the lease terms and impairment of ROU assets, and to not apply the new standard’s recognition requirements to short-term leases or use the portfolio approach to a group of leases with similar characteristics. Upon adoption of this ASU, the Company will record ROU assets and the present value of its lease liabilities which are currently not recognized on its Consolidated Balance Sheet.  The Company is in the process of implementing changes to its business processes, systems and controls to support the new lease standard and its disclosure requirements.

On adoption, the Company expects to recognize a lease liability of approximately $10.3 million and corresponding ROU assets of approximately $10.1 million.  Any cumulative effect of the adoption recorded to accumulated deficit is not expected to be significant.  The Company also does not expect there to be a significant net effect on the Consolidated Statements of Operations, however, what was previously presented as rent expense related to operating leases will be recognized as interest expense on the Company’s minimum lease obligation and depreciation of right-of-use asset.

Note 2.  Revenue Recognition

Under Accounting Standards Codification (“ASC”) Topic 606: Revenue from Contracts with Customer, the amount of revenue recognized for any goods or services reflects the consideration that the Company expects to be entitled to receive in exchange for those goods and services. To achieve this core principle, the Company applies the following five-step approach: (1) identify the contract with the customer; (2) identify the performance obligation in the contract; (3) determine the transaction price; (4) allocate the transaction price to performance obligations in the contract; and (5) recognize revenue when or as a performance obligation is satisfied.

A contract is accounted for when there has been approval and commitment from both parties, the rights of the parties are identified, payment terms are identified, the contract has commercial substance and collectability of consideration is probable. Performance obligations under a contract are identified based on the goods or services that will be transferred to the customer that are both capable of being distinct and are distinct in the context of the contract. In certain instances, the Company has concluded distinct goods or services should be accounted for as a single performance obligation that is a series of distinct goods or services that have the same pattern of transfer to the customer. To the extent a contract includes multiple promised goods or services, the Company must apply judgment to determine whether the customer can benefit from the goods or services either on their own or together with other resources that are readily available to the customer (the goods or services are distinct) and if the promise to transfer the goods or services to the customer is separately identifiable from other promises in the contract (the goods or services are distinct in the context of the contract). If these criteria are not met, the promised services are accounted for as a single performance obligation. The transaction price is determined based on the consideration that the Company will be entitled to in exchange for transferring goods or services to the customer. To the extent the transaction price includes variable consideration, the Company estimates the amount of variable consideration that should be included in the transaction price, generally utilizing the expected value method. Determining the transaction price requires judgment. If the contract contains a single performance obligation, the entire transaction price is allocated to the single performance obligation. Contracts that contain multiple performance obligations require an allocation of the transaction price to each performance obligation based on a relative standalone selling price basis. Standalone selling price is determined by the price at which the performance obligation is sold separately. If the standalone selling price is not observable through past transactions, the Company estimates the standalone selling price by taking into account available information such as market conditions and internally approved pricing guidelines related to the performance obligations. Performance obligations are satisfied either over time or at a point in time as discussed in further detail below. In addition, the Company’s contracts with customers generally do not include significant financing components or non-cash consideration.


Revenue streams are classified as follows:

Product. Includes the sale of completed project assets, sale and installation of fuel cell power plants including site engineering and construction services, and the sale of modules, balance of plant (“BOP”) components and spare parts to customers.

Service. Includes performance under long-term service agreements for power plants owned by third parties.

License and royalty. Includes license fees and royalty income from the licensure of intellectual property.

Generation. Includes the sale of electricity under PPAs and utility tariffs from project assets retained by the Company.  This also includes revenue received from the sale of other value streams from these assets including the sale of heat, steam, capacity and renewable energy credits.

Advanced Technologies. Includes revenue from customer-sponsored and government-sponsored Advanced Technologies projects.

See below for discussion of revenue recognition under Topic 606 by disaggregated revenue stream, including a comparison to revenue recognition treatment under ASC 605, Revenue Recognition (“ASC 605”). Our revenue is generated from customers located throughout the U.S., Europe and Asia and from agencies of the U.S. government.

Completed project assets

Contracts for the sale of completed project assets includes the sale of the project asset, the assignment of the service agreement, and the assignment of the PPA.  The relative stand-alone selling price is estimated and is used as the basis for allocation of the contract consideration.  Revenue is recognized upon the satisfaction of the performance obligations, which includes the transfer of control of the project asset to the customer, which is when the contract is signed and the PPA is assigned to the customer.  See below for further discussion regarding revenue recognition for service agreements.  The revenue recognition for completed project assets under Topic 606 is consistent with treatment under ASC 605.

Contractual payments related to the sale of the project asset and assignment of the PPA are generally received up-front.  Payment terms for service agreements are generally ratable over the term of the agreement.

Service agreements

Service agreements represent a single performance obligation whereby the Company performs all required maintenance and monitoring functions, including replacement of modules, to ensure the power plant(s) under the service agreement generate a minimum power output.  To the extent the power plant(s) under service agreements do not achieve the minimum power output, certain service agreements include a performance guarantee penalty.  Performance guarantee penalties represent variable consideration, which is estimated for each service agreement based on past experience, using the expected value method.  The net consideration for each service agreement is recognized using costs incurred to date relative to total estimated costs at completion to measure progress.  Under ASC 605, revenue for service agreements was generally recorded ratably over the term of the service agreement, as the performance of routine monitoring and maintenance under the service agreements was expected to be incurred on a straight-line basis.  If there was an estimated module exchange during the term, the costs of performance were not expected to be incurred on a straight-line basis, and therefore a portion of the initial contract value relating to the module exchange was deferred and recognized upon such module replacement event.  Prior to the implementation of Topic 606, an estimate for a performance guarantee was not recorded until a performance issue occurred at a particular power plant. At that point, the actual power plant’s output was compared against the minimum output guarantee and an accrual was recorded. Furthermore, under ASC 605, performance guarantee accruals were recorded based on actual performance and the related expense was recorded to service and license cost of revenues. The review of power plant performance was updated for each reporting period to incorporate the most recent performance of the power plant and minimum output guarantee payments made to customers, if applicable.


The Company reviews its cost estimates on service agreements on a quarterly basis and records any changes in estimates on a cumulative catch-up basis.

Loss accruals for service agreements are recognized to the extent that the estimated remaining costs to satisfy the performance obligation exceed the estimated remaining unrecognized net consideration.  Estimated losses are recognized in the period in which losses are identified.

The Company records any amounts that are billed to customers in excess of revenue recognized as deferred revenue and revenue recognized in excess of amounts billed to customers as unbilled receivables.  Payment terms for service agreements are generally ratable over the term of the agreement.

Advanced Technologies contracts

Advanced Technologies contracts include the promise to perform research and development services and as such this represents one performance obligation.  Revenue from most government sponsored Advanced Technologies projects is recognized as direct costs are incurred plus allowable overhead less cost share requirements, if any.  Revenue is only recognized to the extent the contracts are funded.  Revenue from fixed price Advanced Technologies projects is recognized using the cost to cost input method.  There was no impact of adoption of Topic 606 on revenue recognition for Advanced Technologies contracts.

The Company records any amounts that are billed to customers in excess of revenue recognized as deferred revenue and revenue recognized in excess of amounts billed to customers as unbilled receivables.  Payments are based on costs incurred for government sponsored Advanced Technologies projects and upon completion of milestones for all other projects.

License agreements

The Company entered into manufacturing and technology transfer agreements with POSCO Energy Co., Ltd. (“POSCO Energy”) in 2007, 2009 and 2012.  Revenue from the license fees received from POSCO Energy was previously recognized over the term of the associated agreements.  In connection with the adoption of Topic 606, several performance obligations were identified including previously satisfied performance obligations for the transfer of licensed intellectual property, two performance obligations for specified upgrades of the previously licensed intellectual property, a performance obligation to deliver unspecified upgrades to the previously licensed intellectual property on a when-and-if-available basis, and a performance obligation to provide technical support for previously delivered intellectual property.  The performance obligations related to the specified upgrades will be satisfied and related consideration recognized as revenue upon the delivery of the specified upgrades.  The performance obligations for unspecified upgrades and technical support are being recognized on a straight-line basis over the license term on the basis that this represents the method that best depicts the progress towards completion of the related performance obligations.  All fixed consideration for the license agreements was previously collected.

Effective as of June 11, 2019, the Company entered into a License Agreement (the “EMRE License Agreement”) with ExxonMobil Research and Engineering Company (“EMRE”), pursuant to which the Company agreed, subject to the terms of the EMRE License Agreement, to grant EMRE and its affiliates a non-exclusive, worldwide, fully paid, perpetual, irrevocable, non-transferrable license and right to use the Company’s patents, data, know-how, improvements, equipment designs, methods, processes and the like 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.  Such right and license is sublicensable to third parties performing work for or with EMRE or its affiliates, but shall not otherwise be sublicensable. Upon the payment by EMRE to the Company of $10.0 million, which was received by the Company on June 14, 2019, EMRE and its affiliates were fully vested in the rights and licenses granted in the EMRE License Agreement, and any further obligations under the EMRE License Agreement are considered by the Company to be minimal.  As a result, the total contract value of $10.0 million was recorded as revenue for the year ended October 31, 2019.


Generation revenue

For project assets where customers purchase electricity from the Company under certain PPAs, the Company has determined that these agreements should be accounted for as operating leases pursuant to ASC 840, Leases. Revenue is recognized when electricity has been delivered based on the amount of electricity delivered at rates specified under the contracts, assuming all other revenue recognition criteria are met.  For PPAs that are not accounted for as leases, revenue is recognized based on the output method as there is a directly observable output to the customer (electricity delivered to the customer and immediately consumed). The Company is entitled to be compensated for performance completed to date (electricity delivered to the customer).

The cumulative effect of the changes made to the Company’s Consolidated Balance Sheets as of November 1, 2018 as a result of the adoption of Topic 606 was as follows:

 

 

 

 

 

 

Adjustment

 

 

Balance at

 

 

 

October 31,

 

 

due to

 

 

November 1,

 

 

 

2018

 

 

Topic 606

 

 

2018

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

Unbilled receivables

 

$

13,759

 

 

$

471

 

 

$

14,230

 

Other assets

 

 

13,505

 

 

 

(132

)

 

 

13,373

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

Accrued liabilities

 

$

7,632

 

 

$

995

 

 

$

8,627

 

Deferred revenue, current portion

 

 

11,347

 

 

 

(240

)

 

 

11,107

 

Long-term deferred revenue

 

 

16,793

 

 

 

6,238

 

 

 

23,031

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY

 

 

 

 

 

 

 

 

 

 

 

 

Accumulated deficit

 

$

(990,867

)

 

$

(6,654

)

 

$

(997,521

)

The increase in long-term deferred revenue primarily pertains to license arrangement considerations previously recognized as revenue under ASC 605 that will be recognized when the specific upgrade performance obligations are met.

The following tables summarize the impacts of Topic 606 on the Company’s consolidated financial statements as of and for the year ended October 31, 2019.

 

 

October 31, 2019

 

 

 

 

 

 

 

 

 

 

 

Balances without

 

 

 

 

 

 

 

 

 

 

 

adoption of

 

 

 

As reported

 

 

Adjustments

 

 

Topic 606

 

ASSETS

 

 

 

 

 

 

 

 

 

 

 

 

Unbilled receivables

 

$

7,684

 

 

$

97

 

 

$

7,781

 

Other assets

 

 

9,489

 

 

 

(1,024

)

 

 

8,465

 

 

 

 

 

 

 

 

 

 

 

 

 

 

LIABILITIES

 

 

 

 

 

 

 

 

 

 

 

 

Accrued liabilities

 

$

11,452

 

 

$

(1,097

)

 

$

10,355

 

Deferred revenue

 

 

11,471

 

 

 

488

 

 

 

11,959

 

Long-term deferred revenue

 

 

28,705

 

 

 

(9,579

)

 

 

19,126

 

 

 

 

 

 

 

 

 

 

 

 

 

 

EQUITY

 

 

 

 

 

 

 

 

 

 

 

 

Accumulated deficit

 

$

(1,075,089

)

 

$

9,261

 

 

$

(1,065,828

)


 

 

For the Year Ended October 31, 2019

 

 

 

 

 

 

 

 

 

 

 

Balances without

 

 

 

 

 

 

 

 

 

 

 

adoption of

 

 

 

As reported

 

 

Adjustments

 

 

Topic 606

 

Total revenues

 

$

60,752

 

 

$

4,085

 

 

$

64,837

 

Total cost of revenues

 

 

82,021

 

 

 

1,478

 

 

 

83,499

 

Gross loss

 

 

(21,269

)

 

 

2,607

 

 

 

(18,662

)

Administrative and selling expenses

 

 

31,874

 

 

 

-

 

 

 

31,874

 

Research and development expenses

 

 

13,786

 

 

 

-

 

 

 

13,786

 

Loss from operations

 

 

(66,929

)

 

 

2,607

 

 

 

(64,322

)

Interest expense

 

 

(10,623

)

 

 

-

 

 

 

(10,623

)

Other income, net

 

 

93

 

 

 

-

 

 

 

93

 

Loss before provision for income taxes

 

 

(77,459

)

 

 

2,607

 

 

 

(74,852

)

Provision for income taxes

 

 

(109

)

 

 

-

 

 

 

(109

)

Net loss

 

$

(77,568

)

 

$

2,607

 

 

$

(74,961

)

For the year ended October 31, 2019, the only adjustment to comprehensive loss when comparing the balances with Topic 606 and the balances without Topic 606 included the adjustment to net loss.

For the year ended October 31, 2019, the impact of adoption of Topic 606 on the Consolidated Statement of Cash Flows included an adjustment to net loss of $2.6 million and adjustments to changes in operating assets and liabilities consistent with the impact of adoption of Topic 606 on the October 31, 2019 Consolidated Balance Sheet as reflected above.

Contract Balances

Contract assets as of October 31, 2019 and October 31, 2018 were $11.3 million and $23.1 million, respectively. The contract assets relate to the Company’s rights to consideration for work completed but not billed. These amounts are included on a separate line item as Unbilled receivables and balances expected to be billed later than one year from the balance sheet date are included within Other assets on the accompanying Consolidated Balance Sheets. The net change in contract assets represent amounts recorded as revenue offset by customer billings. For the year ended October 31, 2019, a total of $6.6 million was transferred to accounts receivable from contract assets recognized at the beginning of the period and an additional adjustment was made to reduce contract assets as a result of the acquisition of the Bridgeport Fuel Cell Project (refer to Note 3. “Acquisition” for additional information).

Contract liabilities as of October 31, 2019 and October 31, 2018 were $40.2 million and $28.1 million, respectively. The contract liabilities relate to the advance billings to customers for services that will be recognized over time and in some instances for deferred revenue relating to the license performance obligations that will be recognized at a future point in time. These amounts are included within Deferred revenue and Long-term deferred revenue on the accompanying Consolidated Balance Sheets. The net change in contract liabilities represents customer billing offset by revenue recorded.

Remaining Performance Obligations

Remaining performance obligations are the aggregate amount of total contract transaction price that is unsatisfied or partially unsatisfied. As of October 31, 2019, the Company’s total remaining performance obligations for service agreements, license agreements, and Advanced Technologies contracts were $204.3 million. License revenue recognized over time will be recognized over the remaining term of the applicable license agreement.  License revenue recognized at a point in time will be recognized when the first specified upgrade that has been developed is delivered and when the second specified upgrade is developed and delivered. Service revenue in periods in which there are no module replacements is expected to be relatively consistent from period to period, whereas module replacements will result in an increase in revenue when replacements occur. Advanced technologies revenue will be recognized as cost are incurred.


The Company has elected practical expedients in the accounting guidance that allow for revenue to be recorded in the amount that the Company has a right to invoice, if that amount corresponds directly with the value to the customer of the Company's performance to date, and not to disclose related unsatisfied performance obligations. Generation sales, to the extent the related power purchase agreements are within the scope of Topic 606, fall into this category, as these sales are recognized as revenue in the period the Company provides the electricity and completes the performance obligation, which is the same as the monthly amount billed to customers.

Note 3.  Acquisition

On October 31, 2018, FuelCell Energy Finance, LLC (“FuelCell Finance”) entered into a membership interest purchase agreement (the “Purchase Agreement”) with Dominion Generation, Inc., amended on January 15, 2019 and May 9, 2019, pursuant to which FuelCell Finance purchased (on May 9, 2019) all of the outstanding membership interests in Dominion Bridgeport Fuel Cell, LLC (which is now known as Bridgeport Fuel Cell, LLC) (“BFC”). BFC owns a 14.9 MW fuel cell park in Bridgeport, Connecticut (the “Bridgeport Fuel Cell Project”), which the Company originally developed and constructed and has been operating for Dominion Generation, Inc. under a service agreement since December 2013.

On May 9, 2019, FuelCell Finance closed on the purchase of BFC for a total cash purchase price of $35.5 million, subject to a dollar-for-dollar post-closing adjustment to the extent that the closing working capital was greater or less than $1.0 million (the “BFC Purchase Price”).  The Company recorded a working capital adjustment of $0.6 million, which has been included in the BFC Purchase Price. Certain balance sheet accounts as of the transaction date, May 9, 2019, relating to the Bridgeport Fuel Cell Project service agreement (accounts receivable of $2.7 million, unbilled receivables of $15.3 million and accrued performance guarantees of $1.3 million) were settled in connection with the acquisition and accordingly were included in the consideration for the acquisition.

The acquisition was funded by loans from Fifth Third Bank, Liberty Bank and Connecticut Green Bank (refer to Note 13. “Debt” for more information).  The balance of the financing for the acquisition was funded by the $15 million of restricted cash on hand that was tied to the Bridgeport Fuel Cell Project and released at closing.

ASC Topic 805, “Business Combinations” states that a business is an integrated set of activities and assets that is capable of being conducted and managed for the purpose of providing a return in the form of dividends, lower costs, or other economic benefits directly to investors or other owners, members, or participants.  As the acquisition did not meet the definition of a business combination under ASC 805, the Company accounted for the transaction as an asset acquisition. In an asset acquisition, goodwill is not recognized, but rather any excess consideration transferred over the fair value of the net assets acquired is allocated on a relative fair value basis to the identifiable net assets. The Company determined the estimated fair values of net assets acquired using Level 3 inputs after review and consideration of relevant information, including discounted cash flows, quoted market prices and estimates made by management. The acquisition of BFC also included a PPA with Connecticut Light and Power that has favorable terms relative to market, a land lease with the City of Bridgeport, and working capital.  A pre-existing service agreement was determined to be priced similar to current market rates and no gain or loss was recorded.  A total of $38.8 million of consideration was allocated to the fuel cell power plants installation which is recorded in Project Assets, a total of $12.3 million of consideration was allocated to the PPA which is recorded as an intangible asset, and the remaining consideration was allocated to the acquired working capital.  The project asset and PPA intangible asset will be depreciated and amortized over their respective useful lives.  Additionally, the land lease with the City of Bridgeport was not assigned any consideration due to its insignificant value.

The major depreciable assets of the Bridgeport Fuel Cell Project are the fuel cell modules, which will be depreciated over their estimated remaining useful lives of approximately one to seven years, and balance of plant assets, which will be depreciated over their estimated remaining useful lives of approximately 15 years.   The intangible asset is being amortized over its remaining useful life of approximately 10 years.


Note 4.  Restructuring and Impairment

Fiscal Year 2019

On April 12, 2019, the Company undertook a reorganization, which included a reduction in force of 135 employees, which represented 30% of the Company’s global workforce. The workforce was reduced at the North American production facility in Torrington, Connecticut, as well as at corporate offices in Danbury, Connecticut and at remote locations.  There was no restructuring expense recorded because no severance was provided in connection with the reduction in force.

In connection with the reorganization, the Company also reviewed certain construction in process projects and identified a construction in process asset related to automation equipment for use in manufacturing which has been determined to be impaired due to uncertainty as to whether the asset will be completed as a result of the Company’s liquidity position and continued low level of production rates.  The Company recorded a charge of $2.8 million which is included in Cost of product sales on the Consolidated Statements of Operations for the year ended October 31, 2019.

Fiscal Year 2018

There were no restructuring activities during the fiscal year ended October 31, 2018.

Fiscal Year 2017

On November 30, 2016, a business restructuring was announced to reduce costs and align production levels with then current levels of demand in a manner that was consistent with the Company’s long-term strategic plan.

The Company reduced materials spend as well as implemented various cost control initiatives.  The workforce was reduced at both the North American production facility in Torrington, Connecticut, as well as at the corporate offices in Danbury, Connecticut and remote locations. A total of 96 positions, or approximately 17% of the Company’s global


workforce, were eliminated.  The production rate was reduced to twenty-five25 MW annually, from the prior rate of fifty50 MW annually, in order to position for delays in anticipated order flow.  This production level was temporary and will be reevaluated as order flow dictates.  Restructuring expense relating to eliminated positions of $1.4 million was recorded and paid for in the year ended October 31, 2017, which has been presented onunder a separate caption in the Consolidated Statements of Operations. There were no restructuring activities during the fiscal years ended October 31, 2018 and 2016.

Note 3.5. Accounts Receivable, Net and Unbilled Receivables

Accounts receivable, net and unbilled receivables as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

2018

 

 

2017

 

 

2019

 

 

2018

 

Commercial customers:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Amount billed

 

$

7,415

 

 

$

41,073

 

 

$

2,227

 

 

$

7,415

 

Unbilled receivables (1)

 

 

10,632

 

 

 

18,162

 

 

 

6,139

 

 

 

10,632

 

 

 

18,047

 

 

 

59,235

 

 

 

8,366

 

 

 

18,047

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Advanced Technologies (including U.S.

Government(2)):

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Amount billed

 

 

1,865

 

 

 

1,934

 

 

 

1,065

 

 

 

1,865

 

Unbilled receivables

 

 

3,127

 

 

 

7,352

 

 

 

1,545

 

 

 

3,127

 

 

 

4,992

 

 

 

9,286

 

 

 

2,610

 

 

 

4,992

 

 

$

23,039

 

 

$

68,521

 

Accounts receivable, net and unbilled receivables

 

$

10,976

 

 

$

23,039

 

(1)

Additional long-term unbilled receivables of $9.4$3.6 million and $12.8$9.4 million are included within “Other Assets” as of October 31, 2019 and 2018, and 2017, respectively. The balance decreased because amounts previously recorded in connection with the Bridgeport Fuel Cell Project service agreement were settled in connection with the acquisition of the Bridgeport Fuel Cell Project. 

(2)

Total U.S. government accounts receivable, including unbilled receivables, outstanding as of October 31, 2019 and 2018 and 2017 were $2.3$1.2 million and $3.2$2.3 million, respectively.


We bill customers for power plant and power plant component sales based on certain contractual milestones being reached.  We bill service agreements based on the contract price and billing terms of the contracts. Generally, our Advanced Technologies contracts are billed based on actual revenues recorded, typically in the subsequent month.  Some Advanced Technologies contracts are billed based on contractual milestones or costs incurred.  Unbilled receivables relate to revenue recognized on customer contracts that have not been billed.  

Accounts receivable are presented net of an allowance for doubtful accounts of $0.2 million and $0.1 million as of October 31, 2018 and 2017, respectively.2018.  The Company had no allowance for doubtful accounts as of October 31, 2019.  Uncollectible accounts receivablereceivables are charged against the allowance for doubtful accounts when all collection efforts have failed and it is deemed unlikely that the amount will be recovered.

Accounts receivable from commercial customers (including unbilled receivables) included amounts due from POSCO Energy of $1.6 million and $6.2 million as of October 31, 2018 and 2017, respectively, and amounts due from NRG and NRG Yield of $2.2 million and $0.1 million as of October 31, 2018 and 2017, respectively. 

Note 4.6. Inventories

Inventories as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

2018

 

 

2017

 

 

2019

 

 

2018

 

Raw materials

 

$

24,467

 

 

$

20,065

 

 

$

25,466

 

 

$

24,467

 

Work-in-process (1)

 

 

29,108

 

 

 

54,431

 

 

 

31,228

 

 

 

29,108

 

Inventories

 

$

53,575

 

 

$

74,496

 

 

$

56,694

 

 

$

53,575

 

 

(1)

Work-in-process includes the standard components of inventory used to build the typical modules or module components that are intended to be used in future project asset construction, in future power plant orders or to servicefor use under our service agreements.  Included in Work-in-process as of October 31, 2019 and 2018 and 2017 is $19.0$23.5 million and $46.3$19.0 million, respectively, of completed standard components.


Additional long-term inventory of $2.2 million as of October 31, 2019 includes a module that is contractually required to be segregated for use as a replacement at the Bridgeport Fuel Cell Project which is expected to be utilized beyond 12 months from October 31, 2019.  There was no long-term inventory as of October 31, 2018.

Raw materials consist mainly of various nickel powders and steels, various other components used in producing cell stacks and purchased components for balance of plant.  Work-in-process inventory is comprised of material, labor, and overhead costs incurred to build fuel cell stacks and modules, which are subcomponents of a power plant.

The Company incurred excess plant capacity and manufacturing variances of $14.5 million and $11.2 million for the years ended October 31, 2019 and 2018, respectively, which were included within product cost of revenues on the consolidated statements of operations.

Note 5.7.  Project Assets

The carrying value of project assets as of October 31, 2018 and 2017 was $99.6 million and $73.0 million, respectively.  

Project assets as of October 31, 2019 and 2018 were $144.1 million and 2017$99.6 million, respectively.  As of October 31, 2019, the gross project asset values were $160.0 million and $107.7 million, respectively, and the project asset accumulated depreciation was $15.9 million and $8.1 million, respectively.  The estimated useful lives of these project assets are 20 years for balance of plant and site construction, and 5 to 7 years for modules.  The Bridgeport Fuel Cell Project is being depreciated based on similar useful lives adjusted for time elapsed prior to the acquisition.  Project assets as of October 31, 2019 and 2018 included six and five, respectively, completed, commissioned installations generating power with respect to which we havethe Company has a power purchase agreement (“PPA”)PPA with the end-user of power and site host with an aggregate value of $28.6$59.2 million and $32.1$28.6 million as of October 31, 20182019 and 2017,2018, respectively.  Certain of these assets are the subject of sale-leaseback arrangements with PNC, Energy Capital, LLC (“PNC”), which are recorded underaccounted for using the financing method.  

The increase in project assets balanceis primarily a result of the acquisition of the Bridgeport Fuel Cell Project.  

Project assets as of October 31, 20182019 and 20172018 also includes assets aggregating $71.0installations with carrying values of $84.9 million and $40.9$71.0 million, respectively, which are being developed and constructed by the Company under existing PPAs and have not been placed in service.

On April 5, 2018,

During the year ended October 31, 2019, the Company sold arecorded project asset to NRG Yield (now knownimpairment charges for (i) the Triangle Street Project and (ii) the Bolthouse Farms Project, which are further described as Clearway Energy) which resulted in the recognition of product revenue of $10.8 million.  The total reduction in project assets relating to the sale to NRG Yield was $9.8 million which was recorded as product cost of revenues.follows:

On August 28, 2018, the Company sold a project asset to AEP OnSite Partners, LLC, and American Electric Power Company, Inc. (NYSE: AEP) which resulted in the recognition of product revenue of $9.2 million.  The total reduction in project assets relating to the sale was $8.0 million, which was recorded as product cost of revenues.

i.

Impairment charge for the Triangle Street Project:  In the fourth quarter of fiscal 2019, management determined that it will not be able to secure a PPA with terms acceptable to the Company for the Triangle


Street Project. Therefore, it is management’s current intention to operate the project under a merchant model for the next 5 years. The project will sell power through the Connecticut grid under wholesale tariff rates and Renewable Energy Credits (RECs) to market participants.  As a result of management’s decision to operate the project in this manner, an impairment charge of $14.4 million was recorded in the fourth quarter of fiscal 2019. The amount of the impairment charge was determined by comparing the estimated discounted cash flows of the project and the expected residual value of the project to its carrying value.  Management expects to continue to pursue economic enhancements for this project, but cannot currently assess the probability of closing on a revenue contract for the power above wholesale market rates.

ii.

Impairment charge for the Bolthouse Farms Project:  An impairment charge for the Bolthouse Farms Project was recorded as management has decided to pursue termination of the PPA given recent regulatory changes impacting the future cost profile for the Company and Bolthouse Farms. Since it is considered probable that the PPA will be terminated, a $3.1 million impairment charge was recorded, which reflects the difference between the carrying value of the asset and the value of the components that are expected to be redeployed to other projects. This project was removed from the Company’s backlog as of October 31, 2019.

The Company also recorded a $0.5 million impairment of a project asset during the year ended October 31, 2018 due to the termination of thea project.  The impairment wasimpairments for both years were recorded as “Cost of generation costrevenues” in the Consolidation Statements of revenues.Operations.

Depreciation expense for project assets was $4.1$6.8 million, $4.1 million and $0.7$4.1 million for the years ended October 31, 2019, 2018 and 2017, and 2016, respectively.

Project construction costs incurred for long-term project assets are reported as investing activities in the Consolidated Statements of Cash Flows. The proceeds received from the sale and subsequent leaseback of project assets are classified as “Cash flows from financing activities” within the Consolidated Statements of Cash Flows and are classified as a financing obligation within “Current portion of long-term debt” and “Long-term debt and other liabilities” on the Consolidated Balance Sheets (refer to Note 1213. “Debt” for more information).

Note 6.8. Property, Plant and Equipment

Property, plant and equipment as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

2018

 

 

2017

 

 

Estimated

Useful Life

 

 

2019

 

 

2018

 

 

Estimated

Useful Life

 

Land

 

$

524

 

 

$

524

 

 

 

 

 

$

524

 

 

$

524

 

 

 

 

Building and improvements

 

 

19,674

 

 

 

9,331

 

 

10-26 years

 

 

 

20,395

 

 

 

19,674

 

 

10-26 years

 

Machinery, equipment and software

 

 

93,356

 

 

 

91,680

 

 

3-8 years

 

 

 

106,726

 

 

 

93,356

 

 

3-8 years

 

Furniture and fixtures

 

 

3,958

 

 

 

3,576

 

 

10 years

 

 

 

4,255

 

 

 

3,958

 

 

10 years

 

Construction in progress

 

 

17,711

 

 

 

23,163

 

 

 

 

 

 

1,144

 

 

 

17,711

 

 

 

 

 

 

135,223

 

 

 

128,274

 

 

 

 

 

 

 

133,044

 

 

 

135,223

 

 

 

 

 

Accumulated depreciation

 

 

(87,019

)

 

 

(84,709

)

 

 

 

 

 

 

(91,910

)

 

 

(87,019

)

 

 

 

 

Property, plant and equipment, net

 

$

48,204

 

 

$

43,565

 

 

 

 

 

 

$

41,134

 

 

$

48,204

 

 

 

 

 

 

The Company completed the first phase of its project to expand the existing 65,000 square foot manufacturing facility in Torrington, Connecticut by approximately 102,000 square feet for a total size of 167,000 square feet during

During the year ended October 31, 2018.2019, the Company recorded a $2.8 million impairment of construction in process assets related to automation equipment due to uncertainty of completion.  There were no impairments of property, plant and equipment for the years ended October 31, 2018 and 2017.


Depreciation expense for property, plant and equipment was $4.9 million, $4.6 million $4.4 million and $4.3$4.4 million for the years ended October 31, 2019, 2018 and 2017, and 2016, respectively.

Note 7.9. Goodwill and Intangible Assets

As of October 31, 20182019 and 2017,2018, the Company had goodwill of $4.1 million and intangible assets of $21.3 million and $9.6 million, respectively, that waswere recorded in connection with the 2012 Versa acquisition and the 2019


Bridgeport Fuel Cell Project acquisition. The Versa intangible asset represents indefinite lived in-process research and developmentindefinite-lived IPR&D for cumulative research and development efforts associated with the development of solid oxide fuel cells stationary power generation. The Company recorded $12.3 million as an intangible asset during fiscal year 2019 which is for the consideration from the Bridgeport acquisition which was allocated to the PPA (refer to Note 3. “Acquisition” for additional information).  The balance for the Bridgeport related intangible asset was $11.7 million as of October 31, 2019 and amortization recorded since the acquisition date of May 9, 2019 was $0.6 million.

The Company completed its annual impairment analysis of goodwill and in-process research and developmentIPR&D assets as of July 31, 2018.2019.  The Company performed a qualitative assessmentanalysis for fiscal yearyears 2019, 2018 and 2017 and determined that it was more likely than not that there was no impairment of the goodwill or the indefinite livedindefinite-lived intangible asset.

Note 8.10. Other Current Assets

Other current assets as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

2018

 

 

2017

 

 

2019

 

 

2018

 

Advance payments to vendors (1)

 

$

2,696

 

 

$

1,035

 

 

$

1,899

 

 

$

2,696

 

Deferred finance costs (2)

 

 

97

 

 

 

129

 

 

 

-

 

 

 

97

 

Prepaid expenses and other (3)

 

 

5,799

 

 

 

5,407

 

 

 

4,022

 

 

 

5,799

 

 

$

8,592

 

 

$

6,571

 

Other current assets

 

$

5,921

 

 

$

8,592

 

 

(1)

Advance payments to vendors relate to payments for inventory purchases ahead of receipt.

(2)

Represents the current portion of direct deferred finance costs that relate primarily to securing a $40.0 million loancredit facility with NRG, which iswas being amortized over the five-year life of the facility.  The facility was terminated during fiscal year 2019.

(3)

Primarily relates to other prepaid vendor expenses including insurance, rent and lease payments.

Note 9.11. Other Assets

Other assets as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

 

2018

 

 

2017

 

Long-term unbilled receivables (1)

 

$

9,385

 

 

$

12,806

 

Deferred finance costs (2)

 

 

 

 

 

97

 

Long-term stack residual value (3)

 

 

1,206

 

 

 

987

 

Other (4)

 

 

2,914

 

 

 

2,627

 

Other assets

 

$

13,505

 

 

$

16,517

 

 

 

2019

 

 

2018

 

Long-term stack residual value (1)

 

$

987

 

 

$

1,206

 

Long-term unbilled receivables (2)

 

 

3,588

 

 

 

9,385

 

Other (3)

 

 

4,914

 

 

 

2,914

 

Other assets

 

$

9,489

 

 

$

13,505

 

(1)

Represents unbilled receivables that relate to revenue recognized on customer contracts that will be billed in future periods in excess of twelve months from the balance sheet date.

(2)

Represents the long-term portion of direct deferred finance costs relating to the Company’s loan facility with NRG which is being amortized over the five-year life of the facility.

(3)

Relates to estimated residual value for module exchanges performed under the Company’s service agreements where the useful life extends beyond the contractual term of the service agreement and the Company obtains title for the module from the customer upon expiration or non-renewal of the service agreement.  If the Company does not obtain rights to title from the customer, the full cost of the module is expensed at the time of the module exchange.

(4)(2)

Represents unbilled receivables that relate to revenue recognized on customer contracts that will be billed in future periods in excess of 12 months from the balance sheet date.

(3)

The Company entered into an agreement with one of its customers on June 29, 2016 which includes payments for the purchase of the customer’s power plants at the end of the term of the agreement.  The amounts arefee is payable in installments over the term of the agreement and the total paid as of October 31, 2019 and 2018 and 2017 was $2.0$2.3 million and $1.6$2.0 million, respectively.  Also included within “Other” are long-term security deposits.deposits and prepaid withholding taxes on deferred revenue as of October 31, 2019.


Note 10.  Accounts Payable12. Accrued Liabilities

 

Accounts payable as of October 31, 2018 and 2017 was $22.6 million and $42.6 million, respectively.  Included in the balance were amounts due to POSCO Energy of $7.2 million and $32.7 million as of October 31, 2018 and 2017 for the purchase of inventory.

Note 11. Accrued Liabilities

Accrued liabilities as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

 

2018

 

 

2017

 

Accrued payroll and employee benefits

 

$

2,550

 

 

$

5,315

 

Accrued contract loss

 

 

 

 

 

37

 

Accrued product warranty costs (1)

 

 

147

 

 

 

348

 

Accrued material purchases (2)

 

 

 

 

 

2,396

 

Accrued service agreement costs (3)

 

 

2,029

 

 

 

3,319

 

Contractual milestone billings for inventory (4)

 

 

 

 

 

4,440

 

Accrued legal, taxes, professional and other

 

 

2,906

 

 

 

2,526

 

 

 

$

7,632

 

 

$

18,381

 

 

 

2019

 

 

2018

 

Accrued payroll and employee benefits

 

$

2,282

 

 

$

2,550

 

Accrued product warranty costs (1)

 

 

144

 

 

 

147

 

Accrued service agreement and PPA costs (2)

 

 

4,047

 

 

 

2,029

 

Accrued legal, taxes, professional and other

 

 

4,979

 

 

 

2,906

 

Accrued liabilities

 

$

11,452

 

 

$

7,632

 

 

(1)

Activity in the accrued product warranty costs for the years ended October 31, 20182019 and 20172018 included additions for estimates of future warranty obligations of $0.4$0.1 million and $0.6$0.4 million, respectively, on contracts in the warranty period and reductions related to actual warranty spend of $0.6$0.1 million and $0.8$0.6 million, respectively, as contracts progress through the warranty period or are beyond the warranty period.

(2)

The Company acts as a procurement agent for POSCO Energy under an Integrated Global Supply Chain Agreement whereby the Company procures materials on POSCO Energy’s behalf for its Asian production facility.  This liability represents amounts received for the purchase of materials on behalf of POSCO Energy.  Amounts due to vendors are recorded as “Accounts payable.”

(3)

Activity in service agreement costs represents a decrease in loss accruals on service contracts were $0.9 million as of $0.2October 31, 2018, which increased to $3.3 million as of October 31, 2019.  The increase is a result of the adoption of Topic 606 and an increase in the estimate for future module cost exchanges. The accruals for performance guarantees on service agreements and PPAs decreased from $1.1 million as of October 31, 20172018 to $0.9$0.8 million as of October 31, 2018.  The accruals for performance guarantees also decreased from $2.2 million2019 as a result of October 31, 2017 to $1.1 millionthe acquisition of the Bridgeport Fuel Cell Project as amounts previously recorded in connection with the Bridgeport Fuel Cell Project service agreement were settled in connection with the acquisition of October 31, 2018 resulting from guarantee payments to customers partially offset by additional accruals for the minimum output falling below the contract requirements for certain service agreements.

(4)

Amount represented contractual milestone billings for inventory that was provided to POSCO Energy under a transaction that did not result in revenue recognition.Bridgeport Fuel Cell Project on May 9, 2019.

Note 12.13. Debt

Debt as of October 31, 20182019 and 20172018 consisted of the following (in thousands):

 

 

2018

 

 

2017

 

 

2019

 

 

2018

 

Connecticut Development Authority Note

 

$

-

 

 

$

284

 

Orion Energy Partners Credit Facility

 

 

14,500

 

 

 

-

 

Connecticut Green Bank Loan

 

 

7,555

 

 

 

6,052

 

Liberty Bank Term Loan Agreement (BFC Loan)

 

 

11,632

 

 

 

-

 

Fifth Third Bank Term Loan Agreement (BFC Loan)

 

 

11,632

 

 

 

-

 

Finance obligations for sale-leaseback transactions

 

 

45,219

 

 

 

46,062

 

State of Connecticut Loan

 

 

10,000

 

 

 

10,000

 

Hercules Loan and Security Agreement

 

$

25,343

 

 

$

21,468

 

 

 

-

 

 

 

25,343

 

State of Connecticut Loan

 

 

10,000

 

 

 

10,000

 

Finance obligation for sale-leaseback transactions

 

 

46,062

 

 

 

46,937

 

Connecticut Green Bank Note

 

 

6,052

 

 

 

6,052

 

Connecticut Development Authority Note

 

 

284

 

 

 

2,349

 

New Britain Renewable Energy Term Loan

 

 

1,107

 

 

 

1,697

 

 

 

497

 

 

 

1,107

 

Enhanced Capital Loan and Security Agreement

 

 

1,500

 

 

 

-

 

Fifth Third Bank Construction Loan Agreement

 

 

11,072

 

 

 

-

 

Capitalized lease obligations

 

 

341

 

 

 

632

 

 

 

141

 

 

 

341

 

Deferred finance costs

 

 

(1,311

)

 

 

(1,344

)

 

 

(3,180

)

 

 

(1,311

)

Unamortized debt discount

 

 

(4,251

)

 

 

-

 

Total debt

 

$

87,878

 

 

$

87,791

 

 

$

106,317

 

 

$

87,878

 

Current portion of long-term debt

 

 

(17,596

)

 

 

(28,281

)

 

 

(21,916

)

 

 

(17,596

)

Long-term debt

 

$

70,282

 

 

$

59,510

 

 

$

84,401

 

 

$

70,282

 


Aggregate annual principal payments under our loan agreements and capital lease obligations for the years subsequent to October 31, 20182019 are as follows (in thousands):

 

Year 1

 

$

17,908

 

 

$

20,974

 

Year 2

 

 

17,174

 

 

 

10,586

 

Year 3

 

 

4,064

 

 

 

11,410

 

Year 4

 

 

4,089

 

 

 

10,417

 

Year 5

 

 

4,640

 

 

 

10,736

 

Thereafter (1)

 

 

16,481

 

 

 

21,917

 

 

$

64,356

 

 

$

86,040

 

 

(1)

The annual principal payments included above only include sale-leaseback payments whereas the difference between debt outstanding as of October 31, 20182019 and the annual principal payments represent accreted interest and amounts included in the finance obligation that exceed required principal payments.

In April 2016, the Company entered into a loan and security agreement (the “Hercules Agreement”) with Hercules Capital, Inc. (“Hercules”) for an aggregate principal amount of up to $25.0 million, subject to certain terms and conditions, of which the Company drew down $20.0 million during fiscal year 2016.  The loan was a 30 month secured facility.  The term loan interest was 9.75 percent per annum as of October 31, 2017 and increased to 10.0 percent per annum as of January 31, 2018 as a result of the increase in the prime rate.  In addition to interest, which is paid on a monthly basis, principal payments commenced on November 1, 2017 in equal monthly installments. The loan balance and all accrued and unpaid interest was due and payable by October 1, 2018.  Under the terms of the Hercules Agreement, there was an end of term charge of $1.7 million due on October 31, 2018, which was being accreted over the 30 month term using the effective interest rate method.

The Hercules Agreement was subsequently amended on September 5, 2017, October 27, 2017, March 28, 2018, August 29, 2018 and December 19, 2018.  The March 28, 2018 amendment (the “March Amendment”) allowed the Company to draw a term loan advance of $13.1 million and extended the maturity date.  The aggregate amount outstanding as of October 31, 2018, which includes the amount outstanding under the original Hercules Agreement of $11.9 million and the term loan advance under the March Amendment, was $25.0 million.  The term loan maturity date is April 1, 2020.  Payments for the aggregate amount outstanding are interest-only for the initial 12-month period, followed by equal monthly installments of principal and interest until the term loan maturity date.  The term loan interest rate was 10.15% per annum and increased to 10.40% per annum as of June 14, 2018 and increased to 10.65% as of September 2018.  The term loan interest rate is the greater of either (i) 9.90% plus the prime rate minus 4.50%, and (ii) 9.90%.  The initial end of term charge of $1.7 million was paid on October 1, 2018.  An additional end of term charge of $0.9 million will be due on April 1, 2020, subject to extension upon the Company’s achievement of certain performance milestones.  The additional end of term charge is being accreted over a 30-month term.

On August 29, 2018, in connection with the issuance of the Series D Preferred Stock (seeConnecticut Development Authority Note 14), the Company and Hercules (and various affiliated entities) entered into the fourth amendment to the Hercules Agreement to (i) modify the definition of “Permitted Indebtedness” to include certain redemption and/or conversion rights as set forth in the Series D Certificate of Designation, (ii) permit the Company, so long as no event of default has occurred and is continuing, to repurchase or redeem stock in cash pursuant to the redemption and/or conversion rights set forth in the Series D Certificate of Designation; provided that, the Company must make any such repurchase, redemption or payment in common stock and not in cash or other consideration unless prohibited pursuant to the terms of the Series D Certificate of Designation or otherwise prohibited by applicable law, (iii) permit the Company, so long as no event of default has occurred and is continuing, to pay cash dividends under the Series D Preferred Shares as required in the Series D Certificate of Designation; provided that, the Company must pay such dividends in common stock and not in cash or other consideration unless prohibited pursuant to the terms of the Series D Certificate of Designation or otherwise prohibited by applicable law, and (iv) add a new event of default, which occurs upon the delivery of a Triggering Event Redemption Notice (as defined under the Series D Certificate of Designation) under the Series D Certificate of Designation.


As collateral for obligations under Hercules Agreement, the Company granted Hercules a security interest in FuelCell Energy, Inc.’s existing and thereafter-acquired assets except for intellectual property and certain other excluded assets. The collateral does not include assets held by FuelCell Energy Finance, LLC (“FuelCell Finance”) or any project subsidiary thereof. The Company may continue to collateralize and finance its project subsidiaries through other lenders and partners.  Under the Hercules Agreement, as amended, there is a minimum cash covenant which requires the Company to maintain an unrestricted cash balance in accounts subject to an account control agreement in favor of Hercules of at least the greater of (a) 75% of the outstanding loan balance plus (b) the amount of accounts payable (as defined under GAAP) not paid within 90 days of the invoice date.  The Hercules Agreement, as amended, contains customary representations and warranties, affirmative and negative covenants, and events of default that entitle Hercules to cause our indebtedness under the agreement to become immediately due and payable.

In November 2015, the Company closed on a definitive Assistance Agreement with the State of Connecticut and received a disbursement of $10.0 million for the first phase of the expansion project to expand the existing 65,000 square foot manufacturing facility in Torrington, Connecticut by approximately 102,000 square feet for a total size of 167,000 square feet. In conjunction with this financing, the Company entered into a $10.0 million Promissory Note and related security agreement securing the loan with equipment liens and a mortgage on its Danbury, Connecticut location.  Pursuant to the terms of the loan, principal payments were deferred for the first four years and will begin in November 2019. Monthly interest payments at a fixed rate of 2.0 percent per annum began in December 2015.  The financing is payable over 15 years, and is predicated on certain terms and conditions, including the forgiveness of up to half of the loan principal if certain job retention and job creation targets are reached.  

On April 17, 2017, the Company entered into an amendment to the Assistance Agreement extending certain job creation target dates by two years to October 28, 2019.  Under the Assistance Agreement, as amended, the Company targeted employment of 703 Connecticut employees by October 2019.  In connection with this amendment to the Assistance Agreement, in July 2018, the Company announced an increase in its annual production rate and committed to hire over 100 employees.  As of October 31, 2018, the Company had 452 Connecticut employees.  The Company cannot currently predict whether it will meet its target of employing 703 Connecticut employees by October 2019 or whether the time period for meeting this target will be extended.  If the Company does not meet this target in the required time period, principal under the promissory note will be paid at an annual rate of $14.0 thousand for each employee under the 703 employee target.

In 2015, the Company entered into the first of a series of agreements with PNC, whereby the Company’s project finance subsidiaries entered into sale-leaseback agreements for commissioned projects where we have entered into a PPA with the site host/end-user of produced power.  Under the financing method of accounting for a sale-leaseback, the Company does not recognize as income any of the sale proceeds received from the lessor that contractually constitute payment to acquire the assets subject to these arrangements. Instead, the sale proceeds received are accounted for as financing obligations.  The outstanding financing obligation balance as of October 31, 2018 was $46.1 million and the decrease from the October 31, 2017 balance of $46.9 million includes lease payments offset by the recognition of interest expense.

The Company has a long-term loan agreement with the Connecticut Green Bank, totaling $5.9 million in support of the Bridgeport Fuel Cell Park project. The loan agreement carries an interest rate of 5.0 percent per annum.  Interest only payments commenced in January 2014 and principal payments will commence on the eighth anniversary of the project’s provisional acceptance date, which is December 20, 2021, payable in forty-eight equal monthly installments.  Outstanding amounts are secured by future cash flows from the Bridgeport Fuel Cell Park service agreement.

The Company hashad a loan agreement with the Connecticut Development Authority that was used to finance equipment purchases associated with our prior manufacturing capacity expansion. The interest rate is 5.0 percentwas 5.0% per annum and the loan iswas collateralized by the assets procured under this loan as well as $4.0 million of additional machinery and equipment. The original repayment terms required monthly interest and principal payments through May 2018.  However, the repayment terms for the loan agreement with the Connecticut Development Authority were modified in April 2018, such that the remaining balance and interest will bewas paid on a monthly basis through December 2018 and the loan was extinguished.

Orion Energy Partners Investment Agent, LLC Credit Agreement

On October 31, 2019, the Company and certain of its subsidiaries as guarantors entered into a Credit Agreement (the “Orion Credit Agreement”) with Orion Energy Partners Investment Agent, LLC, as Administrative Agent and Collateral Agent (the “Agent”), and certain lenders affiliated with the Agent for a $200.0 million senior secured credit facility (the “Orion Facility”), structured as a delayed draw term loan, to be provided by the lenders subject to certain lender approvals.  Each lender will fund its commitments on each funding date in an amount equal to the principal amount of the loans to be funded by such lender on such date, less 2.50% of the aggregate principal amount of the loans funded by such lender on such date (the “Loan Discount).

In conjunction with the closing of the Orion Facility, on October 31, 2019, the Company drew down $14.5 million (the “Initial Funding”) and received $14.1 million, after taking into account a discount of $0.4 million as described above, to fully repay debt outstanding to NRG Energy, Inc. (“NRG”) and Generate Lending, LLC (“Generate”) and to fund dividends paid to the holders of our Series B Preferred Stock (as defined elsewhere herein) on or before November 15, 2019.  The balance of the Initial Funding was used primarily to pay third party costs and expenses associated with closing of the Orion Facility.  In connection with the closing of the Orion Facility and the Initial Funding, on October 31, 2019, the Company issued to the lenders warrants to purchase up to 6.0 million shares of the Company’s common stock (the “Initial Funding Warrants”) and made a commitment to issue warrants to purchase up to an additional 14.0 million shares of the Company’s common stock (the “Second Funding Warrants”) upon closing of the Second Funding under the Orion Facility, which occurred on November 22, 2019.  

Subsequent to October 31, 2019, a second draw (the “Second Funding”) of $65.5 million, funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Co-Invest, L.P., was made on November 22, 2019 to fully repay outstanding third party debt of the Company with respect to the outstanding construction loan to Fifth Third Bank on the Groton Project and the outstanding loan to Webster Bank on the CCSU Project as well as to fund remaining going forward construction costs and anticipated capital expenditures relating to the Groton Project (a 7.4 MW project), the LIPA Yaphank Solid Waste Management Project (a 7.4 MW project), and the Tulare BioMAT Project (a 2.8 MW project).  The Company received $63.9 million after taking into account a loan discount of $1.6 million as described above.  Also in conjunction with the Second Funding, the Company issued to the Second Funding lenders warrants to purchase up to a total of 14.0 million shares of the Company’s common stock, with an initial exercise price with respect to 8.0 million of such shares of $0.242 per share and with an initial exercise price with respect to 6.0 million of such shares of $0.620 per share (the “Second Funding Warrants”).


The Company may draw the remainder of the Orion Facility, $120.0 million, over the first 18 months following the Initial Funding and subject to the Agent’s approval to fund: (i) construction costs, inventory and other capital expenditures of  additional fuel cell projects with contracted cash flows (under PPAs with creditworthy counterparties) that meet or exceed a mutually agreed coverage ratio; and (ii) inventory, working capital, and other costs that may be required to be delivered by the Company on purchase orders, service agreements, or other binding customer agreements with creditworthy counterparties.

Under the Orion Credit Agreement, cash interest of 9.9% per annum will be paid quarterly. In addition to the cash interest, “PIK” interest of 2.05% per annum will accrue which will be added to the outstanding principal balance of the Orion Facility but will be paid quarterly in cash to the extent of available cash after payment of the Company’s operating expenses and the funding of certain reserves for the payment of outstanding indebtedness to the State of Connecticut and Connecticut Green Bank.  The Orion Credit Agreement contains representations, warranties and other covenants.

Outstanding principal on the Orion Facility will be amortized on a straight-line basis over a seven year term in quarterly payments  beginning one year after the Initial Funding; provided that, if the Company does not have sufficient cash on hand to make any required quarterly amortization payments, such amounts shall be deferred and payable at such time as sufficient cash is available to make such payments subject to all outstanding principal being due and payable on the maturity date, which is the date that is eight years after the closing date or October 31, 2027.

The Orion Credit Agreement includes mandatory prepayment requirements and a prepayment premium of up to 30% of the amount being prepaid in the event that certain triggering events occur, including events of loss (destruction of or damage to any property of a loan party) where the proceeds received from such events of loss are not applied to the repair or restoration of the affected property, the sale, transfer or other disposition of project assets funded by the Orion Facility, if the proceeds from such disposition are not reinvested in substantially similar assets that are useful and necessary for the business (as defined in the Orion Credit Agreement) pursuant to a transaction permitted under the Orion Credit Agreement within a certain period of time, the incurrence of debt other than permitted indebtedness (as defined in the Orion Credit Agreement) and certain events of default (as defined in the Orion Credit Agreement), and also includes a post-default rate increase feature in the event certain events of default occur (in each case as defined in the Orion Credit Agreement.  The Company assessed these mandatory prepayment and post-default rate features and determined that while they represent embedded derivatives and are required to be bifurcated and separately valued, the probability of occurrence for events that would trigger these features was determined to be sufficiently low such that no value was assigned to these features as of October 31, 2019.

Issuance of the Initial Funding Warrants and recognition of the Second Funding Warrants resulted in $3.9 million being recorded as a liability with the offset recorded as a debt discount. Refer to Note 14. “Stockholders’ Equity and Warrant Liabilities” for additional information on the Initial Funding Warrants and Second Funding Warrants including the accounting and terms.

In connection with the Company’s providing collateral to the Agent for the Orion Facility, the Company granted security interests to the Agent in all of the Company’s bank accounts subject to deposit account security agreements, other than certain bank accounts referred to as “Excluded Accounts” and bank accounts maintained for Excluded Assets (as defined in the Orion Credit Agreement).  Certain bank accounts have been established pursuant to the terms and conditions of the Orion Credit Agreement, for which security interests have been granted to the Agent, including general corporate accounts, accounts for each of the Covered Projects (as defined in the Orion Credit Agreement), a Project Proceeds Account (for the proceeds of Permitted Project Dispositions/Refinancings), a Borrower Waterfall Account (into which net operating cash flow of the Company after payment of operating expenses will be deposited for the payment of debt service to the Agent), a Debt Reserve Account (to fund a reserve for required debt service payments to the State of Connecticut and Connecticut Green Bank), a Preferred Reserve Account (to fund a reserve for required dividends on the Company’s Series B Preferred Stock and the Series 1 Preferred Shares (or, in lieu of such dividends, the amount required to redeem shares of Series 1 Preferred Stock in an amount equal to the amount of dividends that would otherwise have been paid in respect thereof)), a Module Replacement Reserve Account (to fund a reserve intended to be for the cost of module replacements for projects owned by the Company that would occur during the outstanding term of the Orion Facility) and certain other accounts.   Excluded Accounts consist of bank accounts of the Company used to collateralize performance bonds and other sureties for projects and third party obligations and certain other certain operating accounts of the Company (i.e., payroll, benefits, sales and income tax withholding and related accounts).


Connecticut Green Bank Loans

As of October 31, 2018, the Company had a long-term loan agreement with the Connecticut Green Bank for a loan totaling $5.9 million in support of the Bridgeport Fuel Cell Project. During the year ended October 31, 2019, this loan was partially repaid with a new project level loan from Connecticut Green Bank (as discussed below) in connection with the Company’s acquisition of all of the membership interests in BFC.  The balance under the long-term loan agreement as of October 31, 2019 was $1.8 million.  Subsequent to October 31, 2019, the long-term loan agreement was amended and the Connecticut Green Bank provided the Company with an additional loan in the aggregate principal amount of $3.0 million.  See Note 23. “Subsequent Events” for additional information regarding the amendment to the loan agreement and the additional loan.

On May 9, 2019, in connection with the closing of the purchase of BFC, BFC entered into a subordinated credit agreement with the Connecticut Green Bank whereby Connecticut Green Bank provided financing in the amount of $6.0 million (the “Subordinated Credit Agreement”).  As security for the Subordinated Credit Agreement, Connecticut Green Bank received a perfected lien, subordinated and second in priority to the liens securing the $25.0 million loaned under the BFC Credit Agreement (as defined below), in all of the same collateral securing the BFC Credit Agreement. The interest rate under the Subordinated Credit Agreement is 8% per annum.  The debt service coverage ratio required to be maintained under the Subordinated Credit Agreement may not be less than 1.10 as of the end of each fiscal quarter, beginning with the quarter ended July 31, 2020. The term of the Subordinated Credit Agreement expires 7 years from the date of the advance of the loan.  Principal and interest are due monthly in amounts sufficient to fully amortize the loan over an 84 month period ending in May 2026. The Subordinated Credit Agreement contains representations, warranties and other covenants.  The balance under the Subordinated Credit Agreement as of October 31, 2019 was $5.8 million.

BFC Loans

On May 9, 2019, in connection with the purchase of the membership interests of BFC, FuelCell Finance (a subsidiary of the Company) entered into a Credit Agreement with Liberty Bank, as administrative agent and co-lead arranger, and Fifth Third Bank as co-lead arranger and swap hedger (the “BFC Credit Agreement”), whereby (i) Fifth Third Bank provided financing to BFC in the amount of $12.5 million towards the BFC Purchase Price; and (ii) Liberty Bank provided financing to BFC in the amount of $12.5 million towards the BFC Purchase Price. As security for the BFC Credit Agreement, Liberty Bank and Fifth Third Bank were granted a first priority lien in (i) all assets of BFC, including BFC’s cash accounts, fuel cells, and all other personal property, as well as third party contracts including the Energy Purchase Agreement between BFC and Connecticut Light and Power Company dated July 10, 2009, as amended; (ii) certain fuel cell modules that are intended to be used to replace the Bridgeport Fuel Cell Project’s fuel cell modules as part of routine operation and maintenance; and (iii) FuelCell Finance’s ownership interest in BFC.  The maturity date under the BFC Credit Agreement is May 9, 2025.  Monthly principal and interest are to be paid in arrears in an amount sufficient to fully amortize the term loan over a 72 month period.  BFC has the right to make additional principal payments or pay the balance due under the BFC Credit Agreement in full provided that it pays any associated breakage fees with regard to the interest rate swap agreements fixing the interest rate. The interest rate under the BFC Credit Agreement fluctuates monthly at the 30-day LIBOR rate plus 275 basis points on an initial total notional value of $25.0 million, reduced for principal payments.

An interest rate swap agreement was required to be entered into with Fifth Third Bank in connection with the BFC Credit Agreement to protect against movements in the floating LIBOR index. Accordingly, on May 16, 2019, an interest rate swap agreement (the “Swap Agreement”) was entered into with Fifth Third Bank in connection with the BFC Credit Agreement for the term of the loan.  The net interest rate across the BFC Credit Agreement and the swap transaction results in a fixed rate of 5.09%.  The interest rate swap will be adjusted to fair value on a quarterly basis.  The estimated fair value is based on Level 2 inputs including primarily the forward LIBOR curve available to swap dealers.  The valuation methodology involves comparison of (i) the sum of the present value of all monthly variable rate payments based on a reset rate using the forward LIBOR curve and (ii) the sum of the present value of all monthly fixed rate payments on the notional amount which is equivalent to the outstanding principal amount of the loan.  The fair value adjustments for the fiscal year ended October 31, 2019 resulted in $0.6 million of charges.


The BFC Credit Agreement requires BFC to maintain a debt service reserve at each of Liberty Bank and Fifth Third Bank of $1.25 million, which debt service reserves were funded on May 10, 2019, to be held in deposit accounts at each respective bank, with funds to be disbursed with the consent of or at the request of the required lenders in their sole discretion. Each of Liberty Bank and Fifth Third Bank also has an operation and module replacement reserve (“O&M Reserve”) of $250,000, both of which were funded at closing of the BFC Credit Agreement, to be held in deposit accounts at each respective bank, and thereafter BFC is required to deposit $100,000 per month into each O&M Reserve for the first five years of the BFC Credit Agreement, with such funds to be released at the sole discretion of Liberty Bank and Fifth Third Bank, as applicable. BFC is also required to maintain excess cash flow reserve accounts at each of Liberty Bank and Fifth Third Bank and to evenly split and deposit the excess cash flows from the Bridgeport Fuel Cell Project into these accounts. Excess cash flow consists of cash generated by BFC from the Bridgeport Fuel Cell Project after payment of all expenses (including after payment of intercompany service fees to the Company), debt service to Liberty Bank and Fifth Third Bank, the funding of all required reserves, and payments to Connecticut Green Bank for the subordinated facility.  BFC is also required to maintain a debt service coverage ratio of not less than 1.20, measured for the trailing year based on fiscal quarters beginning with the quarter ended July 31, 2020. The BFC Credit Agreement contains representations, warranties and other covenants.  The Company also has certain quarterly and annual financial reporting requirements under the BFC Credit Agreement. The annual financial statements to be provided pursuant to such requirements are to be audited and accompanied by a report of an independent certified public accountant, which report shall not include a “going concern” matter of emphasis or any qualification or exception as to the scope of such audit.

Finance obligations for sale leaseback agreements

Several of the Company’s project finance subsidiaries previously entered into sale-leaseback agreements with PNC for commissioned projects where the Company had entered into a PPA with the site host/end-user of produced power.  Under the financing method of accounting for a sale-leaseback, the Company did not recognize as income any of the sale proceeds received from the lessor that contractually constitute payments to acquire the assets subject to these arrangements. Instead, the sale proceeds received were accounted for as financing obligations.  The outstanding financing obligation balance as of October 31, 2019 was $45.2 million and the decrease from $46.1 million on October 31, 2018 includes lease payments offset by the recognition of interest expense.  The outstanding financing obligations include an embedded gain which will be recognized at the end of each of the 10-year lease terms.

State of Connecticut Loan

In October 2015, the Company closed on a definitive Assistance Agreement with the State of Connecticut and received a disbursement of $10.0 million which was used for the first phase of the expansion of the Company’s Torrington, Connecticut manufacturing facility.  In conjunction with this financing, the Company entered into a $10.0 million promissory note and related security agreements securing the loan with equipment liens and a mortgage on its Danbury, Connecticut location. Interest accrues at a fixed interest rate of 2.0%, and the loan is repayable over 15 years from the date of the first advance, which occurred in October of 2015.  Principal payments were deferred for four years from disbursement and began on December 1, 2019.  Under the Assistance Agreement, the Company was eligible for up to $5.0 million in loan forgiveness if the Company created 165 full-time positions and retained 538 full-time positions for two consecutive years (the “Employment Obligation”) as measured on October 28, 2017 (the “Target Date”). The Assistance Agreement contains representations, warranties and other covenants.  The Assistance Agreement was subsequently amended in April 2017 to extend the Target Date by two years to October 28, 2019. 

In January 2019, the Company and the State of Connecticut entered into a Second Amendment to the Assistance Agreement (the “Second Amendment”). The Second Amendment extends the Target Date to October 31, 2022 and amends the Employment Obligation to require the Company to continuously maintain a minimum of 538 full-time positions for 24 consecutive months. Based on the Company’s current headcount and plans for fiscal year 2020, it will be short of meeting this requirement.  If the Company meets the Employment Obligation, as modified by the Second Amendment, and creates an additional 91 full-time positions, the Company may receive a credit in the amount of $2.0 million to be applied against the outstanding balance of the loan.  The Second Amendment deletes and cancels the provisions of the Assistance Agreement related to the second phase of the expansion project and the loans related thereto, but the Company had not drawn any funds or received any disbursements under those provisions.  A job audit will be performed within 90 days of the Target Date.  If the Company does not meet the Employment Obligation, then an accelerated payment penalty will be assessed at a rate of $18,587.36 times the number of employees below the Employment Obligation.  Such penalty is immediately payable and will be applied first to accelerate the payment of any outstanding fees or interest due and then to accelerate the payment of outstanding principal.


Hercules Loan and Security Agreement

In April 2016, the Company entered into a loan and security agreement (as amended from time to time, the “Hercules Agreement”) with Hercules Capital, Inc. (“Hercules”) for a loan in an aggregate principal amount of up to $25.0 million.  The original loan was a 30 month secured facility, and the original loan balance and all accrued and unpaid interest was due and payable by October 1, 2018.

The Hercules Agreement was subsequently amended on September 5, 2017, October 27, 2017, March 28, 2018, August 29, 2018, December 19, 2018, February 28, 2019, March 29, 2019, May 8, 2019, June 11, 2019 and July 24, 2019.  The amendments provided for lower minimum cash covenants and were entered into to avoid events of default and accelerations of amounts due under the Hercules Agreement.  Principal payments under the Hercules Agreement began on April 1, 2019.  The term loan interest rate for the entire term of the loan was the greater of (i) 9.90% plus the prime rate minus 4.50%, and (ii) 9.90%.  The initial end of term charge of $1.7 million was paid on October 1, 2018.  An additional end of term charge of $0.9 million was due on April 1, 2020 or upon repayment of the principal balance.  The additional end of term charge was being accreted over a 30-month term.

On September 30, 2019, the Company and Hercules entered into a payoff letter (the “Payoff Letter”).  Pursuant to the Payoff Letter, the Company paid to Hercules, on September 30, 2019, a final payment of $0.8 million, plus the end of term charge described above, which amounts represented the remaining outstanding principal balance, the remaining accrued interest outstanding, all remaining fees due under the Hercules Agreement, and the end of term charge, in full repayment of the Company’s outstanding obligations under the Hercules Agreement. Upon the payment of the $0.8 million and the end of term charge, all outstanding indebtedness and obligations of the Company owing to Hercules under the Hercules Agreement were paid in full and the loan was extinguished.

Webster Bank Loan

In November 2016, we assumed debt with Webster Bank in the amount of $2.3 million as a part of ana project asset acquisition transaction.  The term loan interest rate is 5.0 percentwas 5.0% per annum and payments, which commenced in January 2017, arewere due on a quarterly basis.  The balance outstanding as of October 31, 2019 and 2018 was $0.5 million and 2017 was $1.1 million, respectively.  The loan was paid off and $1.7 million, respectively.extinguished subsequent to the fiscal year ended October 31, 2019.  


Enhanced Capital Loan

On January 9, 2019, the Company, through its indirect wholly-owned subsidiary, TRS Fuel Cell, LLC, entered into a Loan and Security Agreement (the “Enhanced Capital Loan Agreement”) with Enhanced Capital Connecticut Fund V, LLC (“Enhanced”) for a loan in the amount of $1.5 million.  The Company leases computer equipment under master lease agreements. Lease payment terms are generally thirty-six monthscollateral for this loan included any project assets, accounts receivable and inventory owned by TRS Fuel Cell, LLC.  Interest accrued at a rate of 6.0% per annum and was paid on the first business day of each month.  The loan maturity date was three years from the date of acceptancethe Enhanced Capital Loan Agreement, upon which the outstanding principal and any accrued interest would be due and payable.  Under the terms of the Enhanced Capital Loan Agreement, the Company was required to close on tax equity financing by January 14, 2020.  Given that the Company did not secure tax equity financing for leased equipment.

Direct deferred finance costs relate primarily to sale-leaseback transactionsthis project, on January 13, 2020, TRS Fuel Cell, LLC and Enhanced entered into a payoff letter whereby the loan was paid off and extinguished on January 14, 2020.

Fifth Third Bank Groton Loan

On February 28, 2019, the Company, through its indirect wholly-owned subsidiary, Groton Station Fuel Cell, LLC (“Groton Borrower”), entered into a Construction Loan Agreement (as amended from time to time, the “Groton Agreement”) with PNCFifth Third Bank pursuant to which are being amortized overFifth Third Bank agreed to make available to Groton Borrower a construction loan facility in an aggregate principal amount of up to $23.0 million (the “Groton Facility”) to fund the ten-year termmanufacture, construction, installation, commissioning and direct deferred finance costs relatingstart-up of the 7.4 MW fuel cell power plant for the Connecticut Municipal Electric Energy Cooperative located on the U.S. Navy submarine base in Groton, Connecticut (the “Groton Project”).  Groton Borrower made an initial draw under the Groton Facility on the date of closing of $9.7 million and made an additional draw of $1.4 million in April 2019.  The original maturity date of the Groton Facility was the earlier of (a) October 31, 2019, (b) the commercial operation date of the Groton Project, or (c) one business day after receipt of proceeds of debt financing (i.e., take out financing) in an amount sufficient to repay the outstanding indebtedness under the Groton Facility.


On August 13, 2019, Groton Borrower and Fifth Third Bank entered into Amendment No. 1 to the Groton Agreement, which reduced the aggregate principal amount available to Groton Borrower under the Groton Facility from $23.0 million to $18.0 million and pursuant to which Groton Borrower committed to, among other things, deliver to Fifth Third Bank, no later than September 28, 2019 (which deadline was automatically extended to October 21, 2019 upon the Company’s repayment of its corporate loan facility with Hercules on September 30, 2019), a binding loan agreement for permanent financing and one or more binding letters of intent from tax equity investors

On October 21, 2019, Groton Borrower and Fifth Third entered into Amendment No. 2 to the Groton Agreement (the “Second Groton Amendment”), pursuant to which Groton Borrower agreed to deliver to Fifth Third Bank, no later than December 16, 2019, a binding agreement, in form and substance reasonably acceptable to Fifth Third Bank:  (i) executed by Groton Borrower and one or more Take-out Lenders (as defined in the Groton Agreement), pursuant to which the Take-out Lenders shall have, individually or collectively, agreed to provide a Take-out Financing (as defined in the Groton Agreement); or (ii) executed by Groton Borrower and one or more tax equity investors or other third parties, pursuant to which such tax equity investors or third parties, via a tax equity or other financing transaction, shall have, individually or collectively, agreed to provide funds to Groton Borrower in an amount no less than the then-outstanding Construction Loans (as defined in the Groton Agreement) under the Groton Agreement and accrued interest.  The Second Groton Amendment further provided, however, that if (A) neither such binding agreement nor a commitment letter for either of such agreements (which commitment letter shall not include a due diligence or similar funding condition) was provided to Fifth Third Bank by November 21, 2019, then commencing on November 22, 2019 until delivery of such commitment letter, the interest rate on the loans was to be the LIBOR rate plus 4% per annum and within three business days after such date, Groton Borrower was to pay to Fifth Third Bank a fee of  $15,000 and (B) such binding agreement was not provided to Fifth Third by December 16, 2019, then commencing on December 17, 2019, the outstanding obligations under the Groton Agreement were to bear interest at a rate equal to the LIBOR rate plus 6% per annum.  The total outstanding balance under the Groton Facility as amended, which is being amortized overof October 31, 2019 was $11.1 million. This balance was paid off and the 30 month life ofloan was extinguished subsequent to the loan.fiscal year ended October 31, 2019 on November 22, 2019, and the Groton Facility was terminated.

NRG Loan Agreement

In July 2014, the Company, through its wholly-owned subsidiary, FuelCell Finance, entered into a Loan Agreement with NRG (the “Loan“NRG Loan Agreement”).  Pursuant to the NRG Loan Agreement, NRG has extended a $40.0 million revolving construction and term financing facility (the “NRG Loan FacilityFacility”) to FuelCell Finance for the purpose of accelerating project development by the Company and its subsidiaries.  Under the NRG Loan Agreement, FuelCell Finance and its subsidiaries were permitted to draw on the NRG Loan Facility to finance the construction of projects through the commercial operating date of the power plants.  Additionally, FuelCell Finance had the option to continue the financing term for each project after the commercial operatingoperation date for a minimum term of five5 years per project.  The interest rate is 8.5 percentwas 8.5% per annum for construction-period financing and 8.0 percent8.0% per annum thereafter.  Fees that were paid by

On December 13, 2018, FuelCell Finance’s wholly owned subsidiary, Central CA Fuel Cell 2, LLC, drew a construction loan advance of $5.8 million under the NRG Loan Facility. This advance was used to support the completion of construction of the 2.8 MW Tulare BioMAT project in California. In conjunction with the December 13, 2018 draw, FuelCell Finance and NRG entered into an amendment to the NRG Loan Agreement to revise the definitions of the terms “Maturity Date” and “Project Draw Period” under the NRG Loan Agreement and to make other related revisions.  Pursuant to this amendment, FuelCell Finance and its subsidiaries could only request draws through December 31, 2018, and the Maturity Date of each note was the earlier of (a) March 31, 2019 and (b) the commercial operation date or substantial completion date, as applicable, with respect to the fuel cell project owned by the borrower under such note.

The Maturity Date was subsequently extended through amendments to the NRG Loan Agreement on March 29, 2019 (the “Third Amendment”), June 13, 2019, July 11, 2019, August 8, 2019 and September 30, 2019 (the “Seventh Amendment”).  In connection with the Third Amendment, the Company agreed to make an additional payment of $750,000 at the Maturity Date, which is recorded in interest expense on the Consolidated Statement of Operations.  In addition, the Seventh Amendment, extended the Maturity Date of each note to the earlier of (a) October 31, 2019, or (b) closing of a corporate refinancing or other form of liquidity; provided, however, that if NRG determined, in its sole discretion, that the Company was not making sufficient progress toward the completion of the construction of the 2.8 MW Tulare BioMAT project in California, NRG had the right to accelerate the Maturity Date.  The Company repaid and extinguished the loan on October 31, 2019.


Generate Construction Loan Agreement

On December 21, 2018, the Company, through its indirect wholly-owned subsidiary FuelCell Energy Finance II, LLC (“FCEF II”), entered into a Construction Loan Agreement (as amended from time to time, the “Generate Agreement”) with Generate pursuant to which Generate agreed (the “Commitment”) to make available to FCEF II a credit facility in an aggregate principal amount of up to $100.0 million (the “Generate Facility”) to fund the manufacture, construction, installation, commissioning and start-up of stationary fuel cell projects to be developed by the Company on behalf of FCEF II during the 36 months from the date of the Generate Agreement.  The Commitment to provide Working Capital Loans (as defined in the Generate Agreement) was to remain in place for making36 months from the Loandate of the Generate Agreement (the “Availability Period”).  Interest at 9.5% per annum was to be paid on the first business day of each month. The initial draw amount under the Generate Facility, availablefunded at closing, was $10.0 million. The initial draw reflected loan advances for the first Approved Project (as defined in the Generate Agreement) under the Generate Facility, the Bolthouse Farms 5 MW project in California.  The Company entered into amendments to the Generate Agreement on June 28, 2019, August 13, 2019 and related legal fees incurred were capitalizedSeptember 30, 2019, which primarily extended the repayment date of the loan and provided additional collateral.  The loan was repaid and extinguished as of October 31, 2019.

Capital Leases

The Company leases computer equipment under master lease agreements. Lease payment terms are generally 36 months from the date of acceptance for leased equipment.

Deferred Finance Costs

Deferred finance costs relate primarily to (i) sale-leaseback transactions entered into with PNC which are being amortized straight-lineover a 10-year term, (ii) payments under the Hercules Agreement, which were amortized over the lifeterm of the related Loan Agreement,loan, (iii) payments under the loans obtained to purchase the membership interests in BFC which is five years. Theare being amortized over the 8-year term of the loans are upand (iv) payments to five years but mayenter into the Orion Facility which will be repaid early shouldamortized over the projects be sold or refinanced at the option8 year term of the Company.  There were no drawdowns or outstanding balances on the Loan Agreement as of October 31, 2018 and 2017.  The Loan Facility expires on March 31, 2019, therefore, any draws under the facility would be considered short-term debt.  Refer to Note 22, Subsequent Events, for information on a drawdown subsequent to October 31, 2018.loan.  

Note 13.14. Stockholders’ Equity and Warrant Liabilities

Authorized Common Stock

In April 2017, the number of authorized shares of the Company's common stock was increased from 75,000,000 to 125,000,000, by vote of the holders of a majority of the outstanding shares of the Company's common stock.

On December 14, 2017, the number of authorized shares of the Company’s common stock was increased from 125,000,000 to 225,000,000, by a vote of the holders of a majority of the outstanding shares of the Company’s common stock.

In April 2017, the number of authorized shares of the Company's common stock was increased from 75,000,000 to 125,000,000, by vote of the holders of a majority of the outstanding shares of the Company's common stock. 

At Market IssuanceMarket-Issuance Sales AgreementAgreements and Other Common Stock Sales

2019 At Market Issuance Sales Agreement

On June 13, 2018,October 4, 2019, the Company entered into an At Market Issuance Sales Agreement (the “Sales Agreement”) with B. Riley FBR, Inc. and Oppenheimer & Co. Inc. (together, the “Agents”(the “Sales Agent”) to create an at the marketat-the-market equity program under which the Company may, from time to time, may offer and sell up to 38.0 million shares of its common stock having anthrough the Sales Agent.  However, to ensure that the Company had sufficient shares available for reservation and issuance upon exercise of all of the warrants to be issued to the lenders under the Orion Facility (as discussed in further detail below), the Company, effective as of October 31, 2019, reduced the number of shares reserved for future issuance and sale under the Sales Agreement from 27.9 million shares to 7.9 million shares (thus allowing for total aggregate offering priceissuances (past and future) of up to $50,000,000 through18.0 million shares under the Agents. Sales Agreement) and reserved 20.0 million shares for issuance upon exercise of the warrants.  Under the Sales Agreement, the Sales Agent making the sales is entitled to a commission in an amount equal to 3.0% of the gross proceeds from such sales. each sale of shares under the Sales Agreement.  


During the year ended October 31, 2018,2019, the Company sold 5.710.1 million shares of the Company’s common stock at prevailing market prices under the Sales Agreement and received aggregate gross proceeds of $3.0 million and paid $0.1 million of fees and commissions

2018 At Market Issuance Sales Agreement

On June 13, 2018, the Company entered into an At Market Issuance Sales Agreement (the “Previous Sales Agreement”) with B. Riley FBR, Inc. and Oppenheimer & Co. Inc. (together, the “Previous Agents”) to create an at-the-market equity program under which the Company could from time to time to offer and sell shares of its common stock having an aggregate offering price of up to $50.0 million through the Previous Agents. Under the Previous Sales Agreement, the Previous Agent making the sales was entitled to a commission in an amount equal to 3.0% of the gross proceeds from such sales.

During the year ended October 31, 2019, the Company sold 109.1 million shares of the Company’s common stock under the Previous Sales Agreement at prevailing market prices, at an average sale price of $0.39 per share and received aggregate gross proceeds of $42.0 million and paid $1.3 million of fees and commissions.

During the year ended October 31, 2018, the Company sold 0.5 million shares of the Company’s common stock under the Previous Sales Agreement, at prevailing market prices, at an average sale price of $16.72 per share and received aggregate gross proceeds of $8.0 million and paid $0.9$0.2 million of fees and commissions.

During the yearsyear ended October 31, 2017, and 2016, the Company sold 7.20.6 million shares and 6.0 million shares, respectively, of the Company's common stock at prevailing market pricesan average sale price of $21.00 per share through periodic offerings/sales on the open market under the Previous Sales Agreement and raised approximately $12.6 million and $36.1 million, net of aggregate selling commissions of $0.1 million and $0.1 million, respectively.million.

Public Offerings and Outstanding Warrants

On May 3, 2017, the Company completed an underwritten public offering of (i) 12,000,0001,000,000 shares of its common stock, (ii) Series C warrants to purchase 12,000,0001,000,000 shares of its common stock and (iii) Series D warrants to purchase 12,000,0001,000,000 shares of its common stock, for gross proceeds of approximately $15.4 million, at a public offering price of $1.28$15.36 per share and accompanying warrants. Total net proceeds to the Company were approximately $13.9 million.  The Series C warrants have an exercise price of $1.60$19.20 per share and a term of five years.  A total of 11,536962 shares of common stock were issued during fiscal year 2018 upon the exercise of Series C warrants and the Company received


total proceeds of $0.02 million. The Series D warrants had an exercise price of $1.28$15.36 per share and a term of one year.  A total of 2,584,174215,347 shares of common stock were issued during fiscal year 2018 upon the exercise of Series D warrants and the Company received total proceeds of $3.3 million.   As of October 31, 2018, allThe Series D warrants have been exercised.were all exercised prior to October 31, 2018.  No Series C warrants were exercised during the fiscal year ended October 31, 2019.

On July 12, 2016, the Company closed on a registered public offering of securities to a single institutional investor pursuant to a placement agent agreement with J.P. Morgan Securities LLC.  In conjunction with the offering, the Company issued 7,680,000640,000 Series A Warrants all of which remained outstanding as of October 31, 2018, at an exercise price of $5.83$69.96 per share. They arewere initially exercisable beginning on the date that iswas six months and one day after the issue date and will expire on the fifth anniversary of the initial exercisability date.  The Company also issued 4,926,000410,500 prefunded Series B Warrants which were immediately exercisable.  They had an exercise price of $0.0001$0.0012 per share and were to expire on the fifth anniversary of the issue date.  There were 3,826,000318,834 prefunded Series B Warrants outstanding as of October 31, 2016, all of which were exercised during the year ended October 31, 2017.

On February 21, 2019, the Company entered into an Exchange Agreement (the “Exchange Agreement”) with the holder (the “Warrant Holder”) of the Series A Warrants. Pursuant to the Exchange Agreement, the Company agreed to issue to the Warrant Holder 500,000 shares of the Company’s common stock (subject to adjustment for stock dividends, stock splits, stock combinations, and other reclassifications) in exchange for the transfer of the Series A Warrants back to the Company, in reliance on an exemption from registration provided by Section 3(a)(9) of the Securities Act of 1933, as amended. Following the transfer of the Series A Warrants back to the Company, the Series A Warrants were cancelled and no further shares were issuable pursuant to the Series A Warrants.  During fiscal year 2019, the Company recorded a charge to common stockholders for the difference between the fair value of the Series


A Warrants prior to the modification of $0.3 million and the fair value of the common shares issuable at the date of the Exchange Agreement of $3.5 million.

In connection with the closing of the Orion Credit Agreement and the Initial Funding, on October 31, 2019, the Company issued the Initial Funding Warrants to the lenders under the Orion Credit Agreement to purchase up to a total of 6,000,000 shares of the Company’s common stock, at an exercise price of $0.310 per share.  In addition, under the Orion Credit Agreement, on the date of the Second Funding (November 22, 2019), the Company issued the Second Funding Warrants to the lenders under the Orion Credit Agreement to purchase up to a total of 14,000,000 shares of the Company’s common stock, with an exercise price with respect to 8,000,000 of such shares of $0.242 per share and with an exercise price with respect to 6,000,000 of such shares of $0.620 per share (the Initial Funding Warrants and the Second Funding Warrants are collectively referred to as the “Orion Warrants”).  

The Orion Warrants have an 8-year term from the date of issuance, are exercisable immediately beginning on the date of issuance, and include provisions permitting cashless exercises.  The Orion Warrants contain provisions regarding adjustment to their exercise prices and the type or class of security issuable upon exercise, including, without limitation, adjustments as a result of the Company undertaking or effectuating (a) a stock dividend or dividend of other securities or property, (b) a stock split, subdivision or combination, (c) a reclassification, (d) the distribution by the Company to substantially all of the holders of its common stock (or other securities issuable upon exercise of an Orion Warrant) of rights, options or warrants entitling such holders to subscribe for or purchase common stock (or other securities issuable upon exercise of an Orion Warrant) at a price per share that is less than the average of the closing sales price per share of the Company’s common stock for the ten consecutive trading days ending on and including the trading day before such distribution is publicly announced, and (e) a Fundamental Transaction (as defined in the Orion Warrants) or Change of Control (as defined in the Orion Credit Agreement).

Under the terms of the Orion Warrants, the Company may not effect the exercise of any portion of an Orion Warrant, and the holder of such warrant shall not have the right to exercise any portion of such warrant, to the extent that after giving effect to such exercise, such holder, collectively with its other attribution parties (as defined in the Orion Warrants), would beneficially own in excess of 4.99% of the shares of the Company’s common stock outstanding immediately after giving effect to such exercise; provided, however, that the holder may increase or decrease this limitation at any time, although any increase shall not be effective until the 61st day following the notice of increase.

The Company has accounted for the Initial Funding Warrants as a liability since there is a change of control provision in the Initial Funding Warrants regarding the composition of the board of directors and as such the Company could be required to repurchase the Initial Funding Warrants upon such change in control and therefore equity classification is precluded. The Company has accounted for the Second Funding Warrants as of October 31, 2019 under ASC 815, Derivatives and Hedging (“ASC 815”) since the Second Funding Warrants were considered contingent vesting warrants and therefore are considered to be an outstanding liability.   Since the probability of vesting for the Second Funding Warrants was deemed to be 100%, there was no impact on the valuation.  The Second Funding Warrants have been accounted for as a liability since the Company might be required to pay the holder under the same change of control provision as the Initial Funding Warrants and such event is outside the Company’s control and therefore equity classification is precluded.

The estimated fair value of the Orion Warrants was based on a Black-Scholes model using Level 2 inputs, including volatility of 96%, a risk free rate of 1.63%, the Company’s common stock price as of October 31, 2019 of $0.24 per share and the term of 8 years which resulted in a total value of $3.9 million.  The Orion Warrants will be remeasured to fair value each reporting period.

The following table outlines the warrant activity during the fiscal year ended October 31, 2018:2019:

 

 

 

Series A

Warrants

 

 

Series C

Warrants

 

 

Series D

Warrants

 

Balance as of October 31, 2017

 

 

7,680,000

 

 

 

11,580,900

 

 

 

2,584,174

 

Warrants exercised

 

 

 

 

 

(11,536

)

 

 

(2,584,174

)

Warrants expired

 

 

 

 

 

 

 

 

 

Balance as of October 31, 2018

 

 

7,680,000

 

 

 

11,569,364

 

 

 

 

 

 

Series A

Warrants

 

 

Series C

Warrants

 

 

Orion

Warrants (a)

 

Balance as of October 31, 2018

 

 

640,000

 

 

 

964,114

 

 

 

-

 

Warrants exchanged

 

 

(640,000

)

 

 

 

 

 

 

Warrants issued

 

 

 

 

 

 

 

 

6,000,000

 

Balance as of October 31, 2019

 

 

-

 

 

 

964,114

 

 

 

6,000,000

 

 

(a)

The Second Funding Warrants, exercisable to purchase 14.0 million shares of the Company’s common stock, were contingently issuable in connection with the Second Funding under the Orion Credit Agreement, which occurred on November 22, 2019.  The Company accounted for the value of the Orion Warrants, which were


exercisable to purchase an aggregate of 20.0 million shares of the Company’s common stock, as a liability as of October 31, 2019.

Refer to Note 23. “Subsequent Events” for information regarding the cashless exercise of certain of the Orion Warrants.

Nasdaq Marketplace Rule 5635(d)

On December 14, 2017, in accordance with Nasdaq Marketplace Rule 5635(d), the Company’s common stockholders approved the issuance of shares of the Company’s common stock exceeding 19.9% of the number of shares outstanding on September 5, 2017, upon the conversion and/or redemption of the Series C Convertible Preferred Stock issued in an underwritten offering in September 2017.

On April 4, 2019, in accordance with Nasdaq Marketplace Rule 5635(d), the Company’s common stockholders approved the issuance of shares of the Company’s common stock exceeding 19.9% of the number of shares outstanding on August 27, 2018, upon conversion of the Series D Convertible Preferred Stock issued in an underwritten offering in August 2018.

Note 14.15. Redeemable Preferred Stock

The Company is authorized to issue up to 250,000 shares of preferred stock, par value $0.01 per share, issuable in one or more series, of which (i) 30,680 shares to date have been issued andwere designated as Series D Convertible Preferred Stock (referred(which is referred to herein as Series D Preferred Stock),Stock and the shares of which are referred to herein as Series D Preferred Shares) in August 2018, (ii) 33,500 shares were designated as Series C Convertible Preferred Stock (referred(which is referred to herein as Series C Preferred Stock)Stock, and the shares of which are referred to herein as Series C Preferred Shares) in September 2017, and (iii) 105,875 shares were designated as 5% Series B Cumulative Convertible Perpetual Preferred Stock (referred to herein as Series B Preferred Stock). in March 2005.  During the fiscal year ended October 31, 2019, all of the shares of Series D Preferred Stock and Series C Preferred Stock were converted into shares of common stock of the Company.  Pursuant to our Certificate of Incorporation, as amended, our undesignated shares of preferred stock now include all of our shares of preferred stock that were previously designated as Series C Preferred Stock and Series D Preferred Stock, as all such shares have been retired and therefore have the status of authorized and unissued shares of preferred stock undesignated as to series.

 

Series D Preferred Stock

On

In August 27, 2018, the Company entered into an underwriting agreement (the “Underwriting Agreement”) with Oppenheimer & Co. Inc. (the “Underwriter”), relating to an underwritten offering (the “Offering”)issued 30,680 shares of the Company’s Series D Preferred Stock, with a par value of $0.01 per share.  Subject to the terms and conditions contained in the Underwriting Agreement, the Underwriter agreed to purchase, and the Company agreed to sell, 30,680 Series D Preferred Shares,which were initially convertible into 22,231,8841,852,657 shares of the Company’s common stock (without regard to any limitation on conversion set forth in the Series D Certificate of Designation) at an initial conversion price of $1.38$16.56 per share (“Series D Conversion Price”), subject to certain adjustments.

The Offering closed on August 29, 2018.  

The net proceeds to the Company from the sale of the Series D Preferred Stock, after deducting the underwriting discounts and commissions and the offering expenses payable by the Company, were approximately $25.3 million.

As of October 31, 2018, there were 30,680 shares of Series D Preferred Stock issued and outstanding, with a carrying value of $27.4 million.  Upon conversion of the last outstanding Series D Preferred Shares on October 1, 2019, there were no further Series D Preferred Shares outstanding.


In conjunction with the closing of the Offering,Based on August 29, 2018, the Company filed the Series D Certificate of Designation with the Secretary of State of the State of Delaware, designating 30,680 shares of the Company’s preferred stock as Series D Convertible Preferred Stock and establishing the rights, preferences, privileges, qualifications, restrictions, and limitations relating to the Series D Preferred Stock, as described below.

Based ona review of pertinent accounting literature, including Accounting Standards Codification (“ASC”)ASC 470 – Debt,, ASC 480 - Distinguishing Liabilities from Equity and ASC 815 - Derivative and Hedging,, the Series D Preferred Shares arewere classified outside of permanent equity on the Consolidated Balance Sheets and were recorded at fair value on the issuance date (proceeds from the issuance, net of direct issuance cost).  An assessment of the probability of the exercise of the potential redemption features in the Series D Certificate of Designation forDesignations, Preferences and Rights of the Series D Preferred Stock isof the Company (the “Series D Certificate of Designation”) was performed at each reporting date to determine whether any changes in classification arewere required.  As discussed below, as of October 31, 2018, the Company hashad not obtained stockholder approval to issue a number of shares of common stock equal to 20% or more of the Company’s outstanding voting stock as ofprior to the date of issuance of the Series D Preferred Stock and therefore iswas accreting, as part of the stated value, the estimated value of the potential common stock shortfall if stockholder approval iswas not obtained.  As of October 31, 2018, the Company determined that none of the other contingent redemption features were probable.

A description of certain terms and provisions of the Series D Preferred Shares is as follows:that affected the accounting for the fiscal years ended October 31, 2019, 2018 and 2017 and that were in effect prior to the conversion of all of the Series D Preferred Shares during fiscal 2019 follows.

Conversion Right.  The Series D Preferred Shares arewere convertible into shares of the Company’s common stock, subject to the requirements of Nasdaq Listing Rule 5635(d), and the beneficial ownership limitation provided in the Series D Certificate of Designation, at a conversion price equal to $1.38$16.56 per share of common stock, subject to adjustment as provided in the Series D Certificate of Designation, including adjustments if the Company sellssold shares of common stock or equity securities convertible into or exercisable for shares of common stock, at prices below $1.38$16.56 per share, in certain types of transactions. The holders arewere prohibited from converting Series D Preferred Shares into shares of common stock if, as a result of such conversion, such holder, together with its affiliates, would own more than 4.99% of the total number of shares of common stock then issued and outstanding. Each holder hashad the right to increase its maximum percentage up to 9.99% upon 60 days’ notice to the Company. Additionally, prior to receiving stockholder approval of the issuance of more than 19.9% of the Company’s outstanding common stock prior to the Offering, the holders will be prohibited from converting Series D Preferred Shares into shares of common stock if such conversion would cause the Company to issue pursuant to the terms of the Series D Preferred Stock a number of shares in excess of the maximum number of shares permitted to be issued thereunder without breaching the Company’s obligations under the rules or regulations of Nasdaq.

The Series D Conversion Price iswas subject to adjustment under certain circumstances in accordance with the Series D Certificate of Designation, including the following:

The conversion price maywas to be proportionately reduced in the event of a subdivision of the Company’s common stock into a greater number of shares or proportionately increased in the event of a combination of the Company’s common stock into a smaller number of shares.

 

In the event that the Company in any manner issuesissued or sellssold or entersentered into any agreement to issue or sell Variable Price Securities (as defined in the Series D Certificate of Designation), which generally includesincluded any common stock, options or convertible securities that arewere issuable at a price which varies or may vary with the market price of the shares of common stock, including by way of one or more reset(s) to a fixed price, but excluding customary anti-dilution provisions (each of the formulations for such variable price being referred to as, the “Variable Price”), each holder of Series D Preferred Shares willwould have had the right (in its sole discretion) to substitute the Variable Price for the Conversion Price upon conversion of the Series D Preferred Shares.  Sales of common stock pursuant to the Company’s At Market IssuancePrevious Sales Agreement with B. Riley FBR, Inc. and Oppenheimer & Co., Inc. will bewould have been deemed Variable Price Securities with a Variable Price equal to the lowest price per share at which common stock iswas sold pursuant to that agreement. Under the Series D Certificate of Designation, the term “options” meansmeant any rights, warrants or options to subscribe for or purchase shares of common stock or convertible securities, and the term “convertible securities” meansmeant any stock or other security (other than options) that is at any time and under any circumstances, directly or indirectly, convertible into, exercisable or exchangeable for, or which otherwise entitles the holder thereof to acquire, any shares of common stock.

 

At any time any Series D Preferred Shares remained outstanding, the Company could reduce the then current conversion price to any amount for any period of time deemed appropriate by the Company’s board of directors.

The Series D Conversion Price or redemption amounts paid by the Company were also subject to adjustment upon the occurrence of certain triggering events as set forth in the Series D Certificate of Designation and summarized below under “Conversion Upon a Triggering Event” and “Redemption Upon a Triggering Event.”  


 

At any time any Series D Preferred Shares remain outstanding, the Company may reduce the then current conversion price to any amount for any period of time deemed appropriate by the Company’s board of directors.

Conversion Upon a Triggering Event.  Subject to the requirements of Nasdaq Listing Rule 5635(d), and the beneficial ownership limitations provided in the Series D Certificate of Designation, in the event of a triggering event (as defined in the Series D Certificate of Designation and summarized below), the holders of Series D Preferred Shares are convertiblecould elect to convert such shares into shares of common stock at a conversion price equal to the lower of the Series D Conversion Price in effect on the Trading Day (as such term is defined in the Series D Certificate of Designation) immediately preceding the delivery of the conversion notice and 85% of the lowest VWAPvolume weighted average price (“VWAP”) of the common stock on any of the five consecutive Trading Days ending on the Trading Day immediately prior to delivery of the applicable conversion notice. This conversion right commenceswould commence on the date of the triggering event and endsend on the later of (i) the date the triggering event iswas cured and (ii) ten Trading Days after the Company deliversdelivered notice of the triggering event.

A triggering event (as defined in the Series D Certificate of Designation) includes,included, without limitation:

any failure to pay any amounts due to the holders of the Series D Preferred Shares;

 

the Company’s failure to timely deliver shares;

 

the suspension of the Company’s common stock from trading or failure to be trading or listed on The Nasdaq Global Market, without obtaining a listing on another national securities exchange, for a period of five consecutive Trading Days;

 

subject to limited exceptions, the Company’s failure for more than ten consecutive days to keep reserved for issuance 150% of the number of shares of common stock issuable upon conversion of the outstanding Series D Preferred Shares;

 

certain bankruptcy events;

the failure to pay certain indebtedness, a breach or violation of an agreement for monies owed in excess of $750,000 that permitted the other party to such agreement to declare a default or accelerate amounts due, or the existence of a circumstance or event that would, with or without the passage of time or the giving of notice, result in a default under an agreement that would or was reasonably expected to have a material adverse effect; and

 

breaches of certain covenants that arewere not timely cured, where a cure period iswas permitted.


Redemption. OnCommencing on December 1, 2018, and on the sixteenth16th day and first1st day of each calendar month thereafter until March 1, 2020, subject to extension in certain circumstances (the “Series D Maturity Date”), inclusive, the Company willwas to redeem the stated value of Series D Preferred Stock in thirty-one31 equal installments of approximately $989,677 (each bimonthlyinstallment amount, a “Series D Installment Amount” and the date of each such payment, a “Series D Installment Date”). The holders will havehad the ability to defer installment payments, but not beyond the Series D Maturity Date. In addition, during each period commencing on the 11th trading dayTrading Day prior to a Series D Installment Date and prior to the immediately subsequent Series D Installment Date, the holders maycould elect to accelerate the conversion of Series D Preferred Shares at the then applicable installment conversion price, provided that the holders maycould not elect to effect any such acceleration during such installment period if either (a) in the aggregate, all the accelerations in such installment period would exceed the sum of three other Series D Installment Amounts, or (b) the number of Series D Preferred Shares subject to prior accelerations exceedswould exceed in the aggregate twelve12 Series D Installment Amounts.

Subject to the requirements of Nasdaq Listing Rule 5635(d) and certain other equity conditions set forth in the Series D Certificate of Designation,beneficial ownership limitations, the Company maycould elect to pay the Series D Installment Amounts in cash or in shares of common stock or in a combination of cash and shares of common stock.stock, except that the Company’s right to make payment in shares of common stock, or an installment conversion, was dependent upon satisfying certain equity conditions set forth in the Series D Certificate of Designation. The failure to satisfy such equity conditions is referred to herein as an equity conditions failure. Among other things, these equity conditions included the Company’s continued listing on The Nasdaq Global Market or another permitted exchange, the Company reserving 150% of the number of shares of common stock necessary to effect the conversion of the Series D Preferred Shares that then remained outstanding (without regard to any limitations on conversions, such as beneficial ownership limitations) during the applicable measurement period, and the Company’s common stock maintaining certain minimum average prices and trading volumes during the applicable measurement period. Upon an equity conditions failure, a holder of Series D Preferred Shares could waive such failure (subject to certain exceptions) and receive the Series D Installment Amount in shares of our common stock based on the installment conversion price (calculated as described in the following paragraph). Alternatively, a holder of Series D Preferred Shares could elect to receive all or part of the Series D Installment Amount due in cash, which was to include an 8% premium to the Series D Installment Amount.

Series D Installment Amounts paid in shares willwere to be that number of shares of common stock equal to (a) the applicable Series D Installment Amount, to be paid in common stock divided by (b) the lesser of  (i) the then existing conversion price, (ii) 87.5% of the volume weighted average price (“VWAP”)VWAP of the common stock on the Trading Day immediately prior to the applicable Series D Installment Date, and (iii) 87.5% of the arithmetic average of the two lowest VWAPs of the common stock during the ten10 consecutive Trading Day period ending on and including the Trading Day immediately prior to the applicable Series D Installment Date as applicable, provided that the Company meetsmet standard equity conditions. The Company shallwas required to make such election no later than the eleventh11th Trading Day immediately prior to the applicable Series D Installment Date.

If the Company electselected or iswas required to pay a Series D Installment Amount in whole or in part in cash, the amount paid will bewould have been equal to 108% of the applicable Series D Installment Amount.


Redemption Upon a Triggering Event.  In the event of a triggering event (as defined in the Series D Certificate of Designation and summarized above), the holders of Series D Preferred Shares maycould require the Company to redeem such Series D Preferred Shares in cash at a price equal to the greater of  (a) 125% of the stated value of the Series D Preferred Shares being redeemed plus accrued dividends, if any, and (b) the market value of the number of shares issuable on conversion of the Series D Preferred Shares, valued at the greatest closing sales price during the period from the date immediately before the triggering event through the date the Company makesmade the redemption payment.

Redemption Upon a Change of Control.  In the event of a change of control, as defined in the Series D Certificate of Designation, the holders of Series D Preferred Shares can force redemption at a price equal to the greater of  (a) the conversion amount to be redeemed multiplied by 125%, (b) the product of  (i) the conversion amount being redeemed multiplied by (ii) the quotient determined by dividing (A) the greatest closing sale price of the common stock on any Trading Day during the period commencing immediately preceding the earlier to occur of (1) the consummation of the applicable change of control and (2) the public announcement of such change of control and ending on the date such holder delivers the change of control redemption notice, by (B) the conversion price then in effect and (c) the product of  (i) the conversion amount being redeemed multiplied by (ii) the quotient determined by dividing (A) the aggregate value of the cash and non-cash consideration per share of common stock being paid to holders of common stock in the change of control transaction by (B) the conversion price then in effect. Redemptions of the Series D Preferred Shares required under the Series D Certificate of Designation in connection with a change of control will have priority over payments to all other stockholders of the Company in connection with such change of control.

Dividends.  Each holder of Series D Preferred Shares shall be entitled to receive dividends (a) if no triggering event, as defined in the Series D Certificate of Designation, has occurred and is continuing when and as declared by the Company’s board of directors, in its sole and absolute discretion or (b) if a triggering event has occurred and until such triggering event has been cured, a dividend of 15% per annum based on the holder’s outstanding number of Series D Preferred Shares multiplied by the stated value. The holders of Series D Preferred Shares also have the right to participate in any dividend or other distribution made to holders of common stock to the same extent as if they had converted their Series D Preferred Shares.

Liquidation Preference.  In the event of the liquidation, dissolution, or winding up of the Company, prior to distribution to holders of securities ranking junior to the Series D Preferred Stock holdersredemption accretion of Series D Preferred Shares will be entitled to receive$3.8 million for the fiscal year ended October 31, 2019 reflects the accretion of the difference between the carrying value and the amount that would have been redeemed if stockholder approval had not been obtained for the issuance of cash, securities or other propertycommon stock equal to the greater of (a) the stated value thereof on the date of such payment plus accrued dividends, if any and (b) the amount per share such holder would receive if such holder converted such Series D Preferred Shares into common stock immediately prior to the date of such payment.

Ranking. Shares of Series D Preferred Stock rank with respect to dividend rights and rights upon the liquidation, winding up or dissolution of the Company:

senior to shares of the Company’s common stock;

junior to the Company’s debt obligations;

junior to the Company’s outstanding Series B Preferred Stock;

pari passu to the Company’s outstanding Series C Preferred Stock; and

effectively junior to the Company’s subsidiaries’ (i) existing and future liabilities and (ii) capital stock held by others.

Limited Voting Rights.  The holders of Series D Preferred Shares have no voting rights, except as required by law; provided, however, that any amendment to the Company’s certificate of incorporation or bylaws or the Series D Certificate of Designation that adversely affects the powers, preferences and rights of the Series D Preferred Stock requires the approval of the holders of a majority of the Series D Preferred Shares then outstanding.

Participation Rights.  Until August 29, 2019, the holders of the Series D Preferred Shares have the right to receive notice of and to participate in any offering, issuance or sale of equity or equity-equivalent securities by the Company or its subsidiaries, other than issuances under certain employee benefit plans, upon the conversion of certain options or other convertible securities, or pursuant to certain acquisitions or strategic transactions. Pursuant to such participation rights, the Company must offer to issue and sell to such holders at least 35% of the offered securities.


Nasdaq Marketplace Rule 5635(d).  Pursuant to the requirements of Nasdaq Listing Rule 5635(d), the Series D Preferred Shares may not be converted or redeemed by payment of shares of the Company’s common stock if such conversion or redemption would cause the Company to issue a number of shares equal to 20%20.0% or more of the Company’s outstanding voting stock as of the date ofprior to the issuance of the Series D Preferred Stock.  Additionally, prior to receiving stockholder approval of the issuance of 20.0% or more of the Company’s outstanding voting stock prior to the issuance of the Series D Preferred Stock, the holders were prohibited from converting Series D Preferred Shares untilinto shares of common stock if such conversion would have caused the Company to issue pursuant to the terms of the Series D Preferred Stock a number of shares in excess of the maximum number of shares permitted to be issued thereunder without breaching the Company’s obligations under the rules or regulations of the Nasdaq Global Market.  The Company received stockholder approval of such issuance at the annual meeting of the Company’s stockholders approve such issuance. The Company has agreed to file a proxy statement with the SEC for the purpose of having the Company’s stockholders vote on a proposal to approve such issuances and further agreed to hold such stockholders’ meeting by no later than April 30,4, 2019.


Series C Preferred Stock

The Company issued an aggregate of 33,500 shares of its Series C Preferred Stock, $0.01 par value and $1,000 stated value per share, during the fiscal year ended October 31, 2017 for net proceeds of $27.9 million.  Each share of Series C Preferred Stock was sold at a price of $895.52 for gross proceeds of approximately $30.0 million.  As of October 31, 2018 and 2017, there were 8,992 shares and 33,300 shares of Series C Preferred Stock issued and outstanding, respectively, with a carrying value of $7.5 million and $27.7 million, respectively.

During the fiscal year ended October 31, 2018,2019, holders of the Series CD Preferred Stock converted 24,308all 30,680 Series CD Preferred Shares into 62,040,496 shares of common shares through installment conversionsstock, resulting in a reduction of $20.2$31.2 million to the carrying value being recorded to equity.  Installment conversions occurring prior to August 27, 2018Conversions in which the conversion price was below the fixed conversion price (the initial conversion price of $1.84 per share the Series D Preferred Stock) resulted in a variable number of shares being issued to settle the installment amountconversion amounts and were treated as a partial redemption of the Series CD Preferred Shares.  In order to resolve different interpretations of the provisions of the Series C Certificate of Designations that govern adjustments to the conversion price in connection with sales of common stock under the Company’s at-the-market sales plan below the fixed conversion price and whether such sales constitute sales of variable priced securities under the Series C Certificate of Designations, the Company’s board of directors agreed to reduce the conversion price of the Series C Preferred Shares from $1.84 to $1.50 effective August 27, 2018 in exchange for a waiver of certain anti-dilution and price adjustment rights under the Series C Certificate of Designations for future at-the-market sales. Installment conversions occurring between August 27, 2018 and October 31, 2018 in which the installment conversion price was below the adjusted conversion price of $1.50 per share resulted in a variable number of shares being issued to settle the installment amount and were treated as a partial redemption of the Series C Preferred Shares. Installment conversionsConversions during the year ended October 31, 20182019 that were settled in a variable number of shares and treated as partial redemptions resulted in deemed dividends of $9.6$6.0 million.  The deemed dividend representsdividends represent the difference between the fair value of the shares of common sharesstock issued to settle the installmentconversion amounts and the carrying value of the Series CD Preferred Shares.

BasedAs described above under the heading “Redemption Upon a Triggering Event,” a failure to pay any amounts due to the holders of the Series D Preferred Shares, as well as certain other triggering events, would have permitted the holders of the Series D Preferred Shares to require the Company to redeem such Series D Preferred Shares.

Alternatively, in the event of a triggering event, the holders of Series D Preferred Shares could elect to convert such shares into shares of common stock at a reduced conversion price, as described in additional detail above under the heading “Conversion Upon a Triggering Event.”

During the week of June 10, 2019, the holders of the Series D Preferred Stock asserted that certain triggering events had occurred under the Series D Certificate of Designation and indicated their intent to exercise their rights to convert certain of their shares at a reduced conversion price.  While the Company did not agree with the basis for their assertions or their characterization of such events, there were provisions under the Series D Certificate of Designation which could be interpreted as giving the holders the right to demand such conversion at a reduced conversion price.  Accordingly, during the period beginning on review of pertinent accounting literature including Accounting Standards Codification (“ASC”) 470 – Debt, ASC 480 - Distinguishing LiabilitiesJune 11, 2019 and ending on July 3, 2019, the Company effected conversions at reduced conversion prices ranging from Equity and ASC 815 - Derivative and Hedging, the $0.14 to $0.61.

Series C Preferred Shares are classified outsideStock

During the fiscal year ended October 31, 2017, the Company issued 33,500 shares of permanent equity on the Consolidated Balance Sheets and were recorded at fair value on the issuance date (proceeds from the issuance, net of direct issuance cost).  An assessment of the probability of the exercise of the potential redemption features in the Series C Certificate of Designations for the Series C Preferred Stock is performed at each reporting date to determine whether any changes in classification are required.  for net proceeds of $27.9 million.

As of October 31, 2018, there were 8,992 shares of Series C Preferred Stock issued and 2017,outstanding, with a carrying value of $7.5 million.  Upon the Company determined that noneconversion of the contingent redemption featureslast outstanding Series C Preferred Shares on May 23, 2019, there were probable.no further Series C Preferred Shares outstanding.

A summary of certain terms of the Series C Preferred Stock that were in effect prior to the conversion of all of the Series C Preferred Shares during fiscal 2019, including certain terms in effect prior to the date of the Waiver Agreement, dated February 21, 2019, between the Company and the holder of Series C Preferred Stock (the “Waiver Agreement”), and that affected the accounting for the fiscal years ended October 31, 2019, 2018 and 2017 follows.

Conversion Rights.  As of October 31, 2018, theThe Series C Preferred Shares were convertible into shares of common stock, subject to the beneficial ownership limitations provided in the Certificate of Designations, Preferences and Rights of the Series C Preferred Stock of the Company (the “Series C Certificate of Designations,Designations”), at a conversion price equal to $1.50$22.08 per share.  The conversion price iswas subject to adjustment as provided in the Series C Certificate of Designations, including adjustments if the Company sellssold shares of common stock or equity securities convertible into or exercisable for shares of common stock, at variable prices below the conversion price then in effect.  In the event of a triggering event as(as defined in the Series C Certificate of Designations,Designations), the Series C Preferred Shares arewould have been convertible into shares of common stock at a conversion price equal to the lower of the conversion price then in effect and 85% of the lowest VWAP of the common stock of the five trading days immediately prior to delivery of the applicable conversion notice.  The holders will bewere prohibited from converting Series C Preferred Shares into shares of common stock if, as a result of such conversion, such holder, together with its affiliates, would own more than 8.99% of the total number of shares of common stock then issued and outstanding. Each holder hashad the right to increase its maximum percentage up to 9.99% upon 60 days’ notice to the Company.

As described below, under the Waiver Agreement, the holder waived any triggering event occurring after the date of the Waiver Agreement, as well as its right to demand, require or otherwise receive cash payments under the Series C Certificate of Designations, which waiver would have terminated upon the occurrence of certain key triggering events, the occurrence of a fundamental transaction, a breach of the Waiver Agreement, or the occurrence of a bankruptcy triggering event.  


Installment Payments.Payments Prior to Execution of Waiver Agreement. On November 1, 2017 and on the sixteenth16th day and first1st day of each calendar month thereafter until March 1, 2019, subject to extension in certain circumstances (the “Series C Maturity Date”), inclusive, the Company willwas required to redeem the stated value of Series C Preferred Shares in thirty-three33 equal installments of approximately $1.0 million (each bimonthly amount, a “Series C Installment Amount” and the date of each such payment, a “Series C Installment Date”). The holders will havehad the ability to defer installment payments, but not beyond the Series C Maturity Date. In addition, during each period commencing on the 11th trading day prior to a Series C Installment Date and prior to the immediately subsequent Series C Installment Date, the holders maycould elect to accelerate the conversion of Series C Preferred Shares at the then applicable installment conversion price, provided that the holders maycould not elect to effect any such acceleration during such installment period if either (a) in the aggregate, all the accelerations in such installment period would exceed the sum of three other Series C Installment Amounts, or (b) the number of Series C Preferred Shares subject to prior accelerations exceedswould exceed in the aggregate twelve12 Series C Installment Amounts.

Subject to certain conditions as provided in the Series C Certificate of Designations, the Company maycould elect to pay the Series C Installment Amounts in cash or shares of common stock or in a combination of cash and shares of common stock.

Series C Installment Amounts paid in shares willwere to be that number of shares of common stock equal to (a) the applicable Series C Installment Amount, to be paid in common stock divided by (b) the least of (i) the then existing conversion price, (ii) 87.5% of the VWAP of the common stock on the trading day immediately prior to the applicable Series C Installment Date, and (iii) 87.5% of the arithmetic average of the two lowest VWAPs of the common stock during the ten10 consecutive trading day period ending on and including the trading day immediately prior to the applicable Series C Installment Date, as applicable, provided that the Company meetsmet standard equity conditions. The Company shallwas required to make such election no later than the eleventh11th trading day immediately prior to the applicable Series C Installment Date.

If the Company electselected or iswas required to pay a Series C Installment Amount in whole or in part in cash, the amount paid will bewould have been equal to 108% of the applicable Series C Installment Amount.

Dividends. Each holderUnder the Waiver Agreement, the Company was no longer obligated to make installment payments under Section 9 of the Series C Preferred Shares shall be entitled to receive dividends (a) if no triggering event, as defined in the Series C Certificate of Designations, has occurred and is continuing when and as declared by the Company’s board of directors,holder was permitted to convert at any time, in its sole and absolute discretion, or (b) if a triggering event has occurred and until such triggering event has been cured, a dividend of 15% per annum based on the holder’s outstanding number of Series C Preferred Shares multiplied by the stated value.  There were no triggering events or dividends declared in fiscal years 2017 or 2018.subject to certain beneficial ownership limitations.

Redemption. In the event of a triggering event, as defined in the Series C Certificate of Designations, the holders of the Series C Preferred Shares cancould force redemption at a price equal to the greater of (a) the conversion amount to be redeemed multiplied by 125% and (b) the product of (i) the conversion rate with respect to the conversion amount in effect at such time as such holder delivers a triggering event redemption notice multiplied by (ii) the greatest closing sale price of the common stock on any trading day during the period commencing on the date immediately preceding such triggering event and ending on the date the Company makes the entire payment required.

Liquidation. InAs described below, under the eventWaiver Agreement, the holder waived, subject to certain conditions and limitations, all triggering events occurring after the date of the Company’s liquidation, dissolution, or winding up, prior to distribution to holdersWaiver Agreement.

On February 21, 2019, the Company entered into the Waiver Agreement with the holder of securities ranking junior to the Series C Preferred Shares, holdersStock (such holder, the “Series C Holder”). Under the Waiver Agreement, the Series C Holder waived any equity conditions failures that may have occurred under the Series C Certificate of Designations. The Series C Holder further waived any triggering event occurring after the date of the Waiver Agreement, as well as its right to demand, require or otherwise receive cash payments under the Series C Certificate of Designations, which waiver would have terminated upon the occurrence of certain key triggering events (failure to provide freely tradable shares, suspension from trading on the Nasdaq Global Market or another eligible market, or failure to convert or deliver shares under certain circumstances), the occurrence of a fundamental transaction, a breach of the Waiver Agreement, or the occurrence of a bankruptcy triggering event.  In addition, the Company agreed in the Waiver Agreement, pursuant to Section 8(d) of the Series C Certificate of Designations, to adjust the conversion price of the Series C Preferred Shares will be entitled to receiveStock in connection with future conversions, such that, when the amount of cash, securities or other property equal to the greater of (a) the stated value thereof on the date of such payment plus accrued dividends, if any and (b) the amount per share such holder would receive if such holderSeries C Holder converted suchits Series C Preferred SharesStock into common stock, immediatelyit would receive approximately 25% more shares than it would have received upon conversion prior to the execution of the Waiver Agreement.  Under the Waiver Agreement, the conversion price of the Series C Preferred Stock was stated to be the lowest of (i) $4.45, (ii) 85% of the lowest closing bid price of the Company’s common stock during the period beginning on and including the fifth trading day prior to the date on which the applicable conversion notice was delivered to the Company and ending on and including the date on which the applicable conversion notice was delivered to the Company, and (iii) 85% of such payment.

Ranking and Voting Rights. Sharesthe quotient of Series C Preferred Stock rank with respect to dividend rights and rights upon(A) the Company’s liquidation, winding up or dissolution:

senior to sharessum of the five lowest VWAPs of the Company’s common stock;

junior to the Company’s debt obligations;

junior to the Company’s outstanding Series B Preferred Stock;


pari passu to the Company’s outstanding Series D Preferred Stock (which was issued on August 29, 2018); and

effectively juniorcommon stock during the 20 consecutive trading day period ending on and including the trading day immediately preceding the applicable conversion date divided by (B) five.  To determine the number of shares of common stock to be issued upon conversion, 125% of the Company’s subsidiaries’ (i) existing and future liabilities and (ii) capital stock held by others.

The holdersvalue of the Series C Preferred Shares have no voting rights, except asbeing converted was divided by the applicable conversion price.  The parties further agreed to waive the installment payment/conversion provisions in Section 9 of the Series C Certificate of Designations, which required by law, provided, however, that any amendmentinstallment conversions or payments to be made on the 1st and 16th of each month (as described in additional detail above). Under the Waiver Agreement, conversions of Series C Preferred Stock were permitted to occur and did occur after the original March 1, 2019 maturity date, and the Company further agreed to reserve specific numbers of shares for issuance to the Series C Holder and the holders of the Series D Preferred Stock until the Company effected a reverse stock split, which occurred on May 8, 2019, or increased its authorized shares of common stock.

The Waiver Agreement was treated for accounting purposes to be an extinguishment of the Series C Preferred Stock instrument as of February 21, 2019.  The Series C Preferred Stock remained classified in mezzanine equity, however, the carrying value was adjusted to reflect the estimated fair value of the post-modification Series C Preferred Shares which incorporated the new terms outlined in the Waiver Agreement.  The valuation utilized a Binomial Lattice Model (“Lattice Model”) which is a commonly used methodology to value path-dependent options or stock units in order to capture their potential early conversion. The Lattice Model produces an estimated fair value based on changes in the underlying stock price over successive periods of time.  The assumptions used in the model such as stock price, conversion price and conversion ratio were consistent with date of execution and terms in the Waiver Agreement.  Other assumptions included the volatility of the Company’s certificatestock which was assumed to be 75% and a discount rate of incorporation or bylaws or20% which was estimated based on various indices consistent with the Company’s profile, venture capital rates of return and the Company’s borrowing rate.  The Lattice Model resulted in an estimated fair value as of February 21, 2019 of $13.5 million whereby the Series C Preferred Stock carrying value was adjusted to this amount.  As discussed below, a beneficial conversion feature was recorded during the three months ended January 31, 2019 due to reductions in the conversion price.  Upon extinguishment during the three months ended April 30, 2019, the Company first allocated $6.6 million to the reacquisition of the embedded conversion option equal to the intrinsic value that was previously recognized during the three months ended January 31, 2019 for the embedded conversion option. Because the remaining estimated fair value of the instrument on February 21, 2019 was less than the carrying amount of the Series C Preferred Stock, the amount of the shortfall resulted in a decrease in loss available to common stockholders for purposes of computing loss per share of $0.6 million.

In order to resolve different interpretations of the provisions of the Series C Certificate of Designations that adversely affectsgoverned adjustments to the powers, preferencesconversion price in connection with sales of common stock under the Company’s at-the-market stock sales plan below the initial conversion price of $22.08 and rightswhether such sales constituted sales of variable priced securities under the Series C Certificate of Designations, the Company’s Board of Directors agreed to reduce the conversion price of the Series C Preferred Shares requiresfrom $22.08 to $18.00 effective August 27, 2018 in exchange for a waiver of certain anti-dilution and price adjustment rights under the approvalSeries C Certificate of the holdersDesignations for future at-the-market sales of a majoritycommon stock. The conversion price of the Series C Preferred Shares thenwas adjusted again on December 3, 2018 to $6.96, on December 17, 2018 to $6.00 and on January 2, 2019 to $5.16.  During the period from February 1, 2019 to May 23, 2019, the conversion price was further adjusted to prices ranging from $4.45 to $1.27, the conversion price as of the last conversion, which occurred on May 23, 2019.  Conversions occurring fiscal year ended October 31, 2019 resulted in a variable number of shares being issued to settle the conversion amounts and were treated as a partial redemption of the Series C Preferred Shares.  Conversions during the year ended October 31, 2019 that were settled in a variable number of shares and treated as partial redemptions resulted in deemed contributions $1.5 million.  The deemed contributions represent the difference between the fair value of the common shares issued to settle the conversion amounts and the carrying value of the Series C Preferred Shares.  Additionally, as discussed in more detail above, the net loss attributable to common stockholders for the fiscal year ended October 31, 2019 was impacted by a $0.5 million decrease in the loss resulting from accounting for the Waiver Agreement in February 2019, which was recorded during the three months ended April 30, 2019.  The net loss attributable to common stockholders for the year ended October 31, 2019 also includes the $8.6 million redemption value adjustment recorded during the three months ended January 31, 2019.

Based on review of pertinent accounting literature including ASC 470 – Debt, ASC 480 - Distinguishing Liabilities from Equity and ASC 815 - Derivative and Hedging, the Series C Preferred Shares were classified outside of permanent equity on the Consolidated Balance Sheets and were recorded at fair value on the issuance date (proceeds from the issuance, net of direct issuance cost).  The decline in the Company’s stock price during the three months ended January 31, 2019 and between January 31, 2019 and the execution of the Waiver Agreement in February 2019 resulted in equity conditions failures under the Series C Certificate of Designations, which were waived by the Series C Holder in the Waiver Agreement, as described above.  Prior to the execution of such Waiver Agreement, the


conversion price was adjusted in December 2018 and January 2019 as described above.  This contingent beneficial conversion feature resulted in a $6.6 million reduction in the Series C Preferred Shares carrying value. Because the equity conditions failures were continuing as of January 31, 2019 (prior to the execution of the Waiver Agreement), the Series C Preferred Shares were adjusted to 108% of stated redemption value as of January 31, 2019 with a corresponding charge to common stockholders of $8.6 million.

During the fiscal year ended October 31, 2019, holders of the Series C Preferred Stock converted 8,992 Series C Preferred Shares into 3,914,218 shares of common stock, resulting in a reduction in carrying value of $15.5 million.  Upon the conversion of the last outstanding Series C Preferred Shares on May 23, 2019, there were no further Series C Preferred Shares outstanding.

During the fiscal year ended October 31, 2018, holders of the Series C Preferred Stock converted 24,308 Series C Preferred Shares into common shares through installment conversions resulting in a reduction of $20.2 million to the carrying value being recorded to equity.  Installment conversions occurring prior to August 27, 2018 in which the conversion price was below the initial conversion price of $22.08 per share resulted in a variable number of shares being issued to settle the installment amount and were treated as a partial redemption of the Series C Preferred Shares.  As discussed above, the Company’s Board of Directors agreed to reduce the conversion price of the Series C Preferred Shares from $22.08 to $18.00 effective August 27, 2018 in exchange for a waiver of certain anti-dilution and price adjustment rights under the Series C Certificate of Designations for future at-the-market sales. Installment conversions occurring between August 27, 2018 and October 31, 2018 in which the installment conversion price was below the adjusted conversion price of $18.00 per share resulted in a variable number of shares being issued to settle the installment amount and were treated as a partial redemption of the Series C Preferred Shares.  Installment conversions during the year ended October 31, 2018 that were settled in a variable number of shares and treated as partial redemptions resulted in deemed dividends of $9.6 million.

Redeemable Series B Preferred Stock

The Company has designated 105,875 shares of its authorized preferred stock as Series B Preferred Stock (Liquidation Preference(liquidation preference $1,000.00 per share) authorized for issuance.. As of October 31, 20182019 and 2017,2018, there were 64,020 shares of Series B Preferred Stock issued and outstanding, with a carrying value of $59.9 million. The shares of Series B Preferred Stock and the shares of common stock issuable upon conversion of the shares of Series B Preferred Stock are covered by a registration rights agreement.  The following is a summary of certain provisions of the Series B Preferred Stock.

Ranking. Ranking —Shares of the Company’s Series B Preferred Stock rank with respect to dividend rights and rights upon the Company’s liquidation, winding up or dissolution:

senior to shares of the Company’s common stock;

senior to shares of the Company’s Series C Preferred Stock;

senior to shares of the Company’s Series D Preferred Stock;

junior to the Company’s debt obligations; and

effectively junior to the Company’s subsidiaries’ (i) existing and future liabilities and (ii) capital stock held by others.

Dividends -

Dividends. The Series B Preferred Stock pays cumulative annual dividends of $50.00 per share which are payable quarterly in arrears on February 15, May 15, August 15 and November 15. Dividends accumulate and are cumulative from the date of original issuance. Unpaid accumulated dividends do not bear interest.

The dividend rate is subject to upward adjustment as set forth in the Amended Certificate of Designation for the Series B Preferred Stock (the “Series B Certificate of DesignationDesignation”) if the Company fails to pay, or to set apart funds to pay, any quarterly dividend on the Series B Preferred Stock. The dividend rate is also subject to upward adjustment as set forth in the Registration Rights Agreement entered into with the initial purchasers of the Series B Preferred Stock (the “Registration Rights Agreement”) if the Company fails to satisfy its registration obligations with respect to the Series B Preferred Stock (or the underlying common shares) under the Registration Rights Agreement.

No dividends or other distributions may be paid or set apart for payment on the Company’s common sharesstock (other than a dividend payable solely in shares of a like or junior ranking), nor may any stock junior to or on parity with the Series B Preferred Stock be redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made available for a sinking fund for such stock) by the Company or on its behalf  (except by conversion into or exchange for shares of a like or junior ranking), unless all accumulated and unpaid Series B Preferred Stock dividends


have been paid or funds or shares of common stock have been set aside for payment of accumulated and unpaid Series B Preferred Stock dividends.

The dividend on the Series B Preferred Stock may be paid in cash;cash or, at the option of the holder, in shares of the Company’s common stock, which will be registered pursuant to a registration statement to allow for the immediate sale of these shares of common sharesstock in the public market.  Dividends of $3.2 million were paid in cash in each of the fiscal years ended October 31, 2018 and 2017, and 2016.dividends of $1.6 million were paid in cash during the fiscal year ended October 31, 2019. There were no cumulative unpaid dividends as of October 31, 2018 and 2017.cumulative unpaid dividends as of October 31, 2019 were $1.6 million.

No dividends were declared or paid by the Company on the Series B Preferred Stock in connection with the May 15, 2019 and August 15, 2019 dividend payment dates.  Based on the dividend rate in effect on May 15, 2019 and August 15, 2019, the aggregate amount of such dividend payments would have been $1.6 million. Because such dividends were not paid on May 15 or August 15, under the terms of the Series B Certificate of Designation, Liquidation -the holders of shares of Series B Preferred Stock were entitled to receive, when, as and if, declared by the Board, dividends at a dividend rate per annum equal to the normal dividend rate of 5% plus an amount equal to the number of dividend periods for which the Company failed to pay or set apart funds to pay dividends multiplied by 0.0625%, for each subsequent dividend period until the Company has paid or provided for the payment of all dividends on the shares of Series B Preferred Stock for all prior dividend periods.  On October 30, 2019, dividends were declared by the Board of Directors with respect to the May 15, 2019 and August 15, 2019 dividend payment dates as well as the November 15, 2019 dividend payment date. Such dividend payments were made subsequent to the fiscal year ended October 31, 2019.

Liquidation.The holders of Series B Preferred Stock are entitled to receive, in the event that the Company is liquidated, dissolved or wound up, whether voluntaryvoluntarily or involuntary,involuntarily, $1,000.00 per share plus all accumulated and unpaid dividends up to but excluding the date of that liquidation, dissolution, or winding up (“Liquidation Preference”). Until the holders of Series B Preferred Stock receive their Liquidation Preference in full, no payment will be made on any junior shares, including shares of the Company’s common stock.  After the Liquidation Preference is paid in full, holders of the Series B Preferred Stock will not be entitled to receive any further distribution of the Company’s assets.  As of October 31, 20182019 and 2017,2018, the Series B Preferred Stock had a Liquidation Preference of $64.0 million.


Conversion Rights.  Each share of Series B Preferred Stock may be converted at any time, at the option of the holder, into 0.591 shares of the Company’s common stock (which is equivalent to an initial conversion price of $1,692.00 per share) plus cash in lieu of fractional shares. The conversion rate is subject to adjustment upon the occurrence of certain events, as described in the Series B Certificate of Designation.  The conversion rate is not adjusted for accumulated and unpaid dividends. If converted, holders of Series B Preferred Stock do not receive a cash payment for all accumulated and unpaid dividends; rather, all accumulated and unpaid dividends are canceled.

 

Conversion Rights - Each share of Series B Preferred Stock may be converted at any time, at the option of the holder, into 7.0922 shares of the Company’s common stock (which is equivalent to an initial conversion price of $141.00 per share) plus cash in lieu of fractional shares. The conversion rate is subject to adjustment upon the occurrence of certain events, as described in the Series B Certificate of Designation.  The conversion rate is not adjusted for accumulated and unpaid dividends. If converted, holders of Series B Preferred Stock do not receive a cash payment for all accumulated and unpaid dividends; rather, all accumulated and unpaid dividends are canceled.

The Company may, at its option, cause shares of Series B Preferred Stock to be automatically converted into that number of shares of common stock that are issuable at the then prevailing conversion rate. The Company may exercise its conversion right only if the closing price of its common stock exceeds 150% of the then prevailing conversion price ($141.001,692.00 per share as of October 31, 2018)2019) for 20 trading days during any consecutive 30 trading day period, as described in the Series B Certificate of Designation.

If holders of Series B Preferred Stock elect to convert their shares in connection with certain fundamental changes, as defined in the Series B Certificate of Designation, the Company will in certain circumstances increase the conversion rate by a number of additional shares of common stock upon conversion or, in lieu thereof, the Company may in certain circumstances elect to adjust the conversion rate and related conversion obligation so that shares of Series B Preferred Stock are converted into shares of the acquiring or surviving company, in each case as described in the Series B Certificate of Designation.

The adjustment of the conversion price is to prevent dilution of the interests of the holders of the Series B Preferred Stock from certain dilutive transactions with holders of common stock.

Redemption. Redemption —The Company does not have the option to redeem the shares of Series B Preferred Stock. However, holders of the Series B Preferred Stock can require the Company to redeem all or part of their shares at a redemption price equal to the Liquidation Preference of the shares to be redeemed in the case of a “fundamental change”, (as described in the Series B Certificate of Designation).  A fundamental change will be deemed to have occurred if any of the following occurs:


any “person” or “group” is or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of all classes of the Company’s capital stock then outstanding and normally entitled to vote in the election of directors;

any “person” or “group” is or becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of all classes of the Company’s capital stock then outstanding and normally entitled to vote in the election of directors;

 

during any period of two consecutive years, individuals who at the beginning of such period constituted the board of directors (together with any new directors whose election by the Company’s board of directors or whose nomination for election by the stockholders was approved by a vote of two-thirds of the Company’s directors then still in office who were either directors at the beginning of such period or whose election ofor nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office;

 

the termination of trading of the Company’s common stock on The Nasdaq Stock Market and such shares are not approved for trading or quoted on any other U.S. securities exchange;exchange or established over-the-counter trading market in the U.S.; or

 

the Company consolidates with or merges with or into another person or another person merges with or into the Company or the sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the Company’s assets and certain of its subsidiaries, taken as a whole, to another person and, in the case of any such merger or consolidation, the Company’s securities that are outstanding immediately prior to such transaction and which represent 100% of the aggregate voting power of the Company’s voting stock are changed into or exchanged for cash, securities or property, unless pursuant to the transaction such securities are changed into securities of the surviving person that represent, immediately after such transaction, at least a majority of the aggregate voting power of the voting stock of the surviving person.

Notwithstanding the foregoing, holders of shares of Series B Preferred Stock will not have the right to require the Company to redeem their shares if:


the last reported sale price of shares of the Company’s common stock for any five trading days within the 10 consecutive trading days ending immediately before the later of the fundamental change or its announcement equaled or exceeded 105% of the conversion price of the shares of Series B Preferred Stock immediately before the fundamental change or announcement;

the last reported sale price of shares of the Company’s common stock for any five trading days within the 10 consecutive trading days ending immediately before the later of the fundamental change or its announcement equaled or exceeded 105% of the conversion price of the shares of Series B Preferred Stock immediately before the fundamental change or announcement;

 

at least 90% of the consideration (excluding cash payments for fractional shares)shares and in respect of dissenters’ appraisal rights, ifrights) in the transaction or transactions constituting the fundamental change consists of shares of capital stock traded on a U.S. national securities exchange or quoted on the Nasdaq Stock Market, or which will be so traded or quoted when issued or exchanged in connection with a fundamental change, and as a result of the transaction or transactions, shares of Series B Preferred Stock become convertible into such publicly traded securities; or

 

in the case of a fundamental change event described in the fourth bullet above, the transaction is affected solely to change the Company’s jurisdiction of incorporation.

 

Moreover, the Company will not be required to redeem any Series B Preferred Stock upon the occurrence of a fundamental change if a third party makes an offer to purchase the Series B Preferred Stock in the manner, at the price, at the times and otherwise in compliance with the requirements set forth above and such third party purchases all Series B Preferred Stock validly tendered and not withdrawn.

The Company may, at its option, elect to pay the redemption price in cash, or in shares of the Company’s common stock valued at a discount of 5% from the market price of shares of the Company’s common stock, or in any combination thereof.  Notwithstanding the foregoing, the Company may only pay such redemption price in shares of the Company’s common stock that are registered under the Securities Act of 1933 and eligible for immediate sale in the public market by non-affiliates of the Company.

Voting Rights - Rights. Holders of Series B Preferred Stock currently have no voting rights; however, holders may receive certain voting rights, as described in the Series B Certificate of Designation, if (1)(a) dividends on any shares of Series B Preferred Stock, or any other class or series of stock ranking on a parity with the Series B Preferred Stock with respect to the payment of dividends, shall be in arrears for dividend periods, whether or not consecutive, forcontaining in the


aggregate a number of days equivalent to six calendar quarters or (2)(b) the Company fails to pay the redemption price, plus accrued and unpaid dividends, if any, on the redemption date for shares of Series B Preferred Stock following a fundamental change.

So long as any shares of Series B Preferred Stock remain outstanding, the Company will not, without the consent of the holders of at least two-thirds of the shares of Series B Preferred Stock outstanding at the time (voting separately as a class with all other series of preferred stock, if any, on parity with the Series B Preferred Stock upon which like voting rights have been conferred and are exercisable) issue or increase the authorized amount of any class or series of shares ranking senior to the outstanding shares of the Series B Preferred Stock as to dividends or upon liquidation. In addition, the Company will not, subject to certain conditions, amend, alter or repeal provisions of the Company’s certificate of incorporation, including the Series B Certificate of Designation, relating to the Series B Preferred Stock, whether by merger, consolidation or otherwise, so as to adversely amend, alter or affect any power, preference or special right of the outstanding shares of Series B Preferred Stock or the holders thereof without the affirmative vote of not less than two-thirds of the issued and outstanding Series B Preferred Stock shares.

Class A Cumulative Redeemable Exchangeable Preferred Shares (the “Series 1 Preferred Shares”)

As of October 31, 2019, FCE FuelCell Energy Ltd. (“FCE Ltd”Ltd.”), one of the Company's indirect subsidiaries, hashad 1,000,000 Class A Cumulative Redeemable Exchangeable Preferred Shares (the “Series 1 Preferred Shares”) issued and outstanding, which were and are held solely by Enbridge, Inc. ("Enbridge"), which is a related party..  The Company guarantees the return of principal and dividend obligations of FCE Ltd. to the holdersholder of the Series 1 Preferred Shares.


On March 31, 2011 and April 1, 2011, the Company entered into agreements with Enbridge to modify the provisions of the Series 1 Preferred Shares of FCE Ltd. Enbridge is the sole holder of the Series 1 Preferred Shares.  Consistent with the previous Series 1 Preferred Share agreement, FuelCell Energy continues to guarantee the return of principal and dividend obligations of FCE Ltd. to the holders of Series 1 Preferred Shares under the modified agreement.

On January 20, 2020, the Company, FCE Ltd., and Enbridge entered into the January 2020 Letter Agreement pursuant to which they agreed to modify certain terms of the Series 1 Preferred Shares.  Refer to Note 23. “Subsequent Events” for additional information regarding such letter agreement and such modified terms.  

The following summary of the terms of the Series 1 Preferred Shares describes such terms as they existed on October 31, 2019 (prior to any modification covered by the January 2020 Letter Agreement).

The terms of the Series 1 Preferred Shares includes payments ofrequired (i) annual dividend payments of Cdn. $500,000 and (ii) annual return of capital payments of Cdn. $750,000. These payments, which were made on a quarterly basis, commenced on March 31, 2011 and willwere scheduled to end on December 31, 2020. Dividends accrueaccrued at a 1.25% quarterly rate on the unpaid principal balance, and additional dividends will accrueaccrued on the cumulative unpaid dividends (inclusive of the Cdn. $12.5 million unpaid dividend balance as of the modification date) at a rate of 1.25% compounded quarterly.  On December 31, 2020, theThe amount of all accrued and unpaid dividends on the Series 1 Preferred Shares of Cdn. $21.1 million and the balance of the principal redemption price of Cdn. $4.4 million shallas of October 31, 2019 were scheduled to be paid to the holders of the Series 1 Preferred Shares.Shares on December 31, 2020.  FCE Ltd. hashad the option, subject to the Company having sufficient authorized and unissued shares, of making dividend payments in the form of cash or shares of the Company’s common stock or cash under the terms of the Series 1 Preferred Shares.

Because the Series 1 Preferred Shares represent a mandatorily redeemable financial instrument, they are presented as a liability on the Consolidated Balance Sheet.


The Company made its scheduled payments of Cdn. $1.3 million during each of fiscal year 2018, 2017 and 2016.  The Company also recorded interest expense, which reflects the accretion of the fair value discount of approximately Cdn. $2.8 million, Cdn. $2.6 million and Cdn. $2.4 million, respectively.  As of October 31, 2018 and 2017, the carrying value of the Series 1 Preferred Shares was Cdn. $20.9 million ($15.9 million) and Cdn. $19.4 million ($15.1 million), respectively and is classified as preferred stock obligation of subsidiary on the Consolidated Balance Sheets.

In addition to the above, the significant terms of the Series 1 Preferred Shares as they existed on October 31, 2019 (prior to any modification covered by the letter agreement referenced above) include the following:

Voting Rights —The holders of the Series 1 Preferred Shares are not entitled to any voting rights.

Dividends — Dividend payments cancould be made in cash or shares of common stock of the Company, at the option of FCE Ltd., and if common stock iswas issued, it maycould be unregistered. If FCE Ltd. electselected to make such payments by issuing shares of common stock of the Company, the number of shares of common shares isstock was to be determined by dividing the cash dividend obligation by 95% of the volume weighted average price in U.S. dollars at which board lots of the common shares have beenwere traded on The Nasdaq Stock Market during the 20 consecutive trading days preceding the end of the calendar quarter for which such dividend in common shares iswas to be paid, converted into Canadian dollars using the Bank of Canada’s noon rate of exchange on the day of determination.

Redemption — The Series 1 Preferred Shares arewere redeemable by FCE Ltd. for Cdn. $25.00 per share less any amounts paid as a return of capital in respect of such share plus all unpaid dividends and accrued interest.

Liquidation or Dissolution — In the event of the liquidation or dissolution of FCE Ltd., the holders of Series 1 Preferred Shares will be entitled to receive Cdn. $25.00 per share less any amounts paid as a return of capital in respect of such share plus all unpaid dividends and accrued interest. The Company has guaranteed any liquidation obligations of FCE Ltd.

Exchange Rights — A holder of Series 1 Preferred Shares hashad the right, at its option, to exchange such shares for fully paid and non-assessable shares of common stock of the Company at the following exchange prices:

Cdn. $1,664.52$19,974.24 per share of the Company’s common stock after July 31, 2015 until July 31, 2020; and

at any time after July 31, 2020, at a price equal to 95% of the then current market price (in Cdn. $) of shares of the Company’s common stock at the time of conversion.

The exchange rates set forth above shall be adjustedwere subject to adjustment if the Company: (i) subdividessubdivided or consolidatesconsolidated the common stock; (ii) payspaid a stock dividend; (iii) issuesissued rights, options or other convertible securities to the Company's common stockholders enabling them to acquire common stock at a price less than 95% of the then-current price; or (iv) fixesfixed a record date to distribute to the Company's common stockholders shares of any other class of securities, indebtedness or assets.


For example, assumingif, under the terms as they existed on October 31, 2019, the holder of the Series 1 Preferred Shares exerciseswas to exercise its conversion rights after July 31, 2020, andthen, assuming the common stock price is $0.85was $0.24 (the common stock closing price on October 31, 2018)2019) and anthe exchange rate ofwas U.S. $1.00 to Cdn. $1.31 (exchange$1.32 (the exchange rate on October 31, 2018)2019) at the time of conversion, the Company would behave been required to issue approximately 4,192,2211,234,279 shares of its common stock.

Because the Series 1 Preferred Shares represent a mandatorily redeemable financial instrument, they are presented as a liability on the Consolidated Balance Sheet.

The Company made payments of Cdn. $0.3 million, Cdn. $1.3 million and Cdn. $1.3 million during fiscal years 2019, 2018 and 2017, respectively.  The Company’s return of capital and dividend payments were not made for the calendar quarters ended on March 31, 2019, June 30, 2019 and September 30, 2019.  Subsequent to the fiscal year ended October 31, 2019, the Company made the return of capital and dividend payments for the obligations due as of March 31, 2019, June 30, 2019 and September 30, 2019.  The Company recorded interest expense, which reflects the amortization of the fair value discount of approximately Cdn. $3.0 million, Cdn. $2.8 million and Cdn. $2.6 million in the fiscal years ended October 31, 2019, 2018 and 2017, respectively.  As of October 31, 2019 and 2018, the carrying value of the Series 1 Preferred Shares was Cdn. $22.7 million ($17.2 million) and Cdn. $20.9 million ($15.9 million), respectively. and was classified as preferred stock obligation of subsidiary on the Consolidated Balance Sheets.  


Derivative liability related to Series 1 Preferred Shares

The conversion feature and variable dividend contained in the terms of the Series 1 Preferred Shares are not clearly and closely related to the characteristics of the Series 1 Preferred Shares. Accordingly, these features qualify as embedded derivative instruments and are required to be bifurcated and recorded as derivative financial instruments at fair value.

The conversion feature is valued using a lattice model.  Based on the pay-off profiles of the Series 1 Preferred Shares as of October 31, 2019, it iswas assumed that we willwould exercise the call option to force conversion in 2020. Conversion after 2020 deliverswould have delivered a fixed pay-off to the investor and iswas modeled as a fixed payment in 2020.  The cumulative dividend is modeled as a quarterly cash dividend component (to satisfy the minimum dividend payment requirement), and a one-time cumulative dividend payment in 2020.

The variable dividend is valued using a Monte Carlo simulation model.

The assumptions used in these valuation models include historical stock price volatility, risk-free interest rate and a credit spread based on the yield indexes of technology high yield bonds, foreign exchange volatility as the security is denominated in Canadian dollars, and the closing price of our common stock. The aggregate fair value of these derivatives included within long-term debt and other liabilities on the Consolidated Balance Sheets as of October 31, 2019 and 2018 was $0.6 million and 2017 was $0.8 million.million, respectively.

Note 15.16. Segment Information

We are engaged in the development, design, production, construction and servicing of high temperature fuel cells for clean electric power generation. Critical to the success of our business is, among other things, our research and development efforts, both through customer-sponsored projects and Company-sponsored projects. The research and development activities are viewed as another product line that contributes to the development, design, production and sale of fuel cell products, however, it is not considered a separate operating segment. The chief operating decision maker does not review and assess financial information at a discrete enough level to be able to assess performance of research and development activities as if itthey operated as a standalone business segment, we havetherefore, the Company has identified one business segment: fuel cell power plant production and research.

Revenues, by geographic location (based on the customer’s ordering location) for the years ended October 31, 2019, 2018 2017 and 20162017 were as follows (in thousands):

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

United States

 

$

50,953

 

 

$

47,539

 

 

$

48,697

 

 

$

56,211

 

 

$

50,953

 

 

$

47,539

 

South Korea

 

 

36,279

 

 

 

44,217

 

 

 

52,007

 

 

 

2,686

 

 

 

36,279

 

 

 

44,217

 

England

 

 

387

 

 

 

368

 

 

 

277

 

 

 

1,496

 

 

 

387

 

 

 

368

 

Germany

 

 

1,795

 

 

 

2,740

 

 

 

7,147

 

 

 

359

 

 

 

1,795

 

 

 

2,740

 

Canada

 

 

23

 

 

 

729

 

 

 

124

 

 

 

 

 

 

23

 

 

 

729

 

Spain

 

 

 

 

 

73

 

 

 

 

 

 

 

 

 

 

 

 

73

 

Total

 

$

89,437

 

 

$

95,666

 

 

$

108,252

 

 

$

60,752

 

 

$

89,437

 

 

$

95,666

 

 

Service agreement revenue which is included within Service agreements and license revenues on the consolidated statement of operations was $15.1 million, $13.5 million $24.4 million and $26.6$24.4 million, for the years ended October 31, 2019, 2018 and 2017, and 2016, respectively.

Long-lived assets located outside of the United States as of October 31, 20182019 and 20172018 are not significant individually or in the aggregate.


Note 16.17. Benefit Plans

We have stockholder approved equity incentive plans, a stockholder approved Section 423Employee Stock Purchase Plan (the “ESPP”) and an employee tax-deferred savings plan, which are described in more detail below.


2018 Omnibus Incentive Plan

The Company’s 2018 Omnibus Incentive Plan (the “2018 Incentive Plan”) was approved by the Company’s stockholders at the 2018 Annual Meeting of Stockholders, which was held on April 5, 2018.  The 2018 Incentive Plan provides that a total of 4.00.3 million shares of the Company’s common stock may be issued thereunder.  The 2018 Incentive Plan authorizes grants of stock options, stock appreciation rights (“SARs”), restricted stock awards (“RSAs”), restricted stock units (“RSUs”), performance shares, performance units and incentive awards to key employees, directors, consultants and advisors.  Stock options, RSAs and SARs have restrictions as to transferability. Stock option exercise prices are fixed by the BoardCompany’s board of directors but shall not be less than the fair market value of our common stock on the date of the grant. SARs may be granted in conjunction with stock options. Stock options generally vest ratably over 4 years and expire 10 years from the date of grant.  As of October 31, 2018,2019, there were 1.40.1 million shares available for grant.grant under the 2018 Incentive Plan.

Other Equity Incentive Plans

The Company has a 2010 Equity Incentive Plan.  In April 2017, the number of shares of common stock reserved for issuance under the 2010 Equity Incentive Plan was increased to 4.5 million shares.  Under the 2010 Equity Incentive Plan, the Board was authorized to grant incentive stock options, nonstatutory stock options, SARs, RSAs, RSUs, performance units, performance shares, dividend equivalent rights and other stock based awards to our officers, key employees and non-employee directors. Stock options, RSAs and SARs have restrictions as to transferability. Stock option exercise prices are fixed by the Board but shall not be less than the fair market value of our common stock on the date of the grant. SARs may be granted in conjunction with stock options. Stock options generally vest ratably over 4 years and expire 10 years from the date of grant. The Company also has an international award program to provide RSUs for the benefit of certain employees outside the United States. At October 31, 2018,2019, equity awards outstanding under the 2010 Equity Incentive Plan consisted of incentive stock options, nonstatutory stock options, RSAs and RSUs.

The Company's 1998, 2006 and 2010 Equity Incentive Plans remain in effect only to the extent of awards outstanding under the planplans as of October 31, 2018.2019.

Share-based compensation was reflected in the consolidated statements of operations as follows (in thousands):

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Cost of revenues

 

$

543

 

 

$

1,050

 

 

$

745

 

 

$

593

 

 

$

543

 

 

$

1,050

 

General and administrative expense

 

 

2,256

 

 

 

2,721

 

 

 

2,110

 

 

 

1,865

 

 

 

2,256

 

 

 

2,721

 

Research and development expense

 

 

355

 

 

 

679

 

 

 

504

 

 

 

272

 

 

 

355

 

 

 

679

 

 

$

3,154

 

 

$

4,450

 

 

$

3,359

 

 

$

2,730

 

 

$

3,154

 

 

$

4,450

 

 

Stock Options

We account for stock options awarded to non-employee directors under the fair value method. The fair value of stock options is estimated on the grant date using the Black-Scholes option valuation model and the following weighted-average assumptions:assumptions (there were no options granted in fiscal year 2019):

 

 

2018

 

 

2017

 

 

2016

 

 

2018

 

 

2017

 

Expected life (in years)

 

 

7.0

 

 

 

7.0

 

 

 

7.0

 

 

 

7.0

 

 

 

7.0

 

Risk free interest rate

 

 

2.8

%

 

 

2.2

%

 

 

1.5

%

 

 

2.8

%

 

 

2.2

%

Volatility

 

 

72.7

%

 

 

79.5

%

 

 

80.1

%

 

 

72.7

%

 

 

79.5

%

Dividend yield

 

 

%

 

 

%

 

 

%

 

 

%

 

 

%

 


The expected life is the period over which our non-employee directors are expected to hold the options and is based on historical data for similar grants. The risk free interest rate is based on the expected U.S. Treasury rate over the expected life. Expected volatility is based on the historical volatility of our stock. Dividend yield is based on our expected dividend payments over the expected life.


The following table summarizes our stock option activity for the year ended October 31, 2018:2019:

 

 

 

 

 

 

Weighted-

Average

Option

 

 

 

 

 

 

Weighted-

Average

Option

 

Options

 

Shares

 

 

Price

 

 

Shares

 

 

Price

 

Outstanding as of October 31, 2017

 

 

309,950

 

 

$

23.81

 

Outstanding as of October 31, 2018

 

 

26,958

 

 

$

124.08

 

Granted

 

 

54,503

 

 

$

1.78

 

 

 

-

 

 

$

-

 

Canceled

 

 

(40,967

)

 

$

100.85

 

Outstanding as of October 31, 2018

 

 

323,486

 

 

$

10.34

 

Cancelled

 

 

(2,031

)

 

$

362.58

 

Outstanding as of October 31, 2019

 

 

24,927

 

 

$

104.73

 

 

The weighted average grant-date fair value per share for options granted during the years ended October 31, 2018 and 2017 was $21.36 and 2016 was $1.78, $1.50 and $6.44,$18.00, respectively. There were no options exercised in fiscal years 2019, 2018 2017 or 2016.2017.

The following table summarizes information about stock options outstanding and exercisable as of October 31, 2018:2019:

 

 

Options Outstanding

 

 

Options Exercisable

 

 

Options Outstanding

 

 

Options Exercisable

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Average

 

 

Weighted

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

Average

 

 

Weighted

 

 

 

 

 

 

Weighted

 

 

 

 

 

 

Remaining

 

 

Average

 

 

 

 

 

 

Average

 

 

 

 

 

 

Remaining

 

 

Average

 

 

 

 

 

 

Average

 

Range of

 

Number

 

 

Contractual

 

 

Exercise

 

 

Number

 

 

Exercise

 

 

Number

 

 

Contractual

 

 

Exercise

 

 

Number

 

 

Exercise

 

Exercise Prices

 

outstanding

 

 

Life

 

 

Price

 

 

exercisable

 

 

Price

 

 

outstanding

 

 

Life

 

 

Price

 

 

exercisable

 

 

Price

 

$0.00 — $3.23

 

 

158,322

 

 

 

8.8

 

 

$

1.60

 

 

 

103,819

 

 

$

1.50

 

$3.24 — $61.20

 

 

165,164

 

 

 

4.1

 

 

$

18.72

 

 

 

163,500

 

 

$

18.79

 

$0.00 — $38.76

 

 

13,192

 

 

 

7.8

 

 

$

19.16

 

 

 

13,192

 

 

$

19.16

 

$38.77 — $416.16

 

 

11,735

 

 

 

3.7

 

 

$

200.93

 

 

 

11,735

 

 

$

200.93

 

 

 

323,486

 

 

 

6.4

 

 

$

10.34

 

 

 

267,319

 

 

$

12.07

 

 

 

24,927

 

 

 

5.9

 

 

$

104.73

 

 

 

24,927

 

 

$

104.73

 

 

There was no intrinsic value for options outstanding and exercisable at October 31, 2018.2019.

Restricted Stock Awards and Units

The following table summarizes our RSA and RSU activity for the year ended October 31, 2018:2019:

 

 

 

 

 

 

Weighted-

Average

 

 

 

 

 

 

Weighted-

Average

 

Restricted Stock Awards and Units

 

Shares

 

 

Fair Value

 

 

Shares

 

 

Fair Value

 

Outstanding as of October 31, 2017

 

 

3,008,686

 

 

 

2.52

 

Outstanding as of October 31, 2018

 

 

364,215

 

 

 

24.36

 

Granted

 

 

2,545,715

 

 

 

1.75

 

 

 

71,885

 

 

 

4.40

 

Vested

 

 

(925,662

)

 

 

2.80

 

 

 

(177,961

)

 

 

20.59

 

Forfeited

 

 

(258,164

)

 

 

2.19

 

 

 

(67,024

)

 

 

22.40

 

Outstanding as of October 31, 2018

 

 

4,370,575

 

 

 

2.03

 

Outstanding as of October 31, 2019

 

 

191,115

 

 

 

16.11

 

 

RSA and RSU expense is based on the fair value of the award at the date of grant and is amortized over the vesting period, which is generally over 3 or 4 years. As of October 31, 2018,2019, the 4.40.2 million outstanding RSAs and RSUs had an average remaining life of 1.40.8 years and an aggregate intrinsic value of $3.7 million.$45,500.

As of October 31, 2018,2019, total unrecognized compensation cost related to RSAs includingand RSUs was $6.2$1.7 million which is expected to be recognized over the next 2.0 yearsyear on a weighted-average basis.


Stock Awards

During the years ended October 31, 2019, 2018 2017 and 2016,2017, we awarded 158,708, 86,00129,454, 13,226 and 24,3797,167 shares, respectively, of fully vested, unrestricted common stock to the independent members of our board of directors as a component of board of director compensation which resulted in recognizing $0.1 million, $0.3 million $0.1 million and $0.2$0.1 million of expense, for each of the respective years.respectively.


Employee Stock Purchase Plan

 

The 2018 Employee Stock Purchase Plan (the “ESPP”) was approved by the Company’s stockholders at the 2018 Annual Meeting of Stockholders.  The adoption of the ESPP allows the Company to provide eligible employees of FuelCell Energy, Inc. and of certain designated subsidiaries with the opportunity to voluntarily participate in the ESPP, enabling such participants to purchase shares of the Company’s common stock at a discount to market price at the time of such purchase.  The maximum number of the Company’s shares of common stock that may be issued under the ESPP is 500,00041,667 shares.  The previous Employee Stock Purchase Plan was suspended as of May 1, 2017 because we did not have sufficient shares of common stock available for issuance.

Under the ESPP, eligible employees have the right to purchase shares of common stock at the lesser of (i) 85% of the last reported sale price of our common stock on the first business day of the offering period, or (ii) 85% of the last reported sale price of the common stock on the last business day of the offering period, in either case rounded up to avoid impermissible trading fractions. Shares issued pursuant to the ESPP contain a legend restricting the transfer or sale of such common stock for a period of 0.5 years after the date of purchase. 

 

There was noThe ESPP activity for the year ended October 31, 2018.  The fair value of shares issued under the previous Employee Stock Purchase Plan2019 was determined at the grant date using the Black-Scholes option-pricing model with the following weighted average assumptions for the years ended October 31, 2017 and 2016:de minimis.

 

 

 

2017

 

 

2016

 

Expected life (in years)

 

 

0.5

 

 

 

0.5

 

Risk free interest rate

 

 

0.46

%

 

 

0.30

%

Volatility

 

 

75.0

%

 

 

37.0

%

Dividends yield

 

—%

 

 

—%

 

The weighted-average fair value of shares issued under the previous Employee Stock Purchase Plan during fiscal year 2017 and 2016 was $1.76 and $6.86 per share, respectively.

Employee Tax-Deferred Savings Plans

We offer a 401(k) plan (the “Plan”) to all full time employees that provides for tax-deferred salary deductions for eligible employees (beginning the first month following an employee’s hire date). Employees may choose to make voluntary contributions of their annual compensation to the Plan, limited to an annual maximum amount as set periodically by the Internal Revenue Service. Employee contributions are fully vested when made. Under the Plan, there is no option available to the employee to receive or purchase our common stock.  Matching contributions of 2% under the Plan aggregated $0.5 million $0.5 million and $0.6 million for each of the years ended October 31, 2019, 2018, 2017, and 2016, respectively.2017.

Note 17.18. Income Taxes

The components of loss before income taxes for the years ended October 31, 2019, 2018, 2017, and 20162017 were as follows (in thousands):

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

U.S.

 

$

(47,314

)

 

$

(49,723

)

 

$

(46,708

)

 

$

(74,133

)

 

$

(47,314

)

 

$

(49,723

)

Foreign

 

 

(3,035

)

 

 

(4,136

)

 

 

(3,981

)

 

 

(3,326

)

 

 

(3,035

)

 

 

(4,136

)

Loss before income taxes

 

$

(50,349

)

 

$

(53,859

)

 

$

(50,689

)

 

$

(77,459

)

 

$

(50,349

)

 

$

(53,859

)

 

The Company recorded an income tax benefitprovision totaling $3.0$0.1 million for the year ended October 31, 20182019 compared to income tax expensebenefit of $0.04$3.0 million and $0.5a tax provision of $0.04 million for the years ended October 31, 2018 and 2017, respectively.  The income tax expense for the year ended October 31, 2019 primarily related to foreign taxes in South Korea and 2016, respectively.Canada.  The income tax benefit for the year ended October 31, 2018 primarily related to the Tax Cuts and Jobs Act (the “Act”) that was enacted on December 22, 2017. The Act reduced the U.S. federal corporate tax rate from 34% to 21% effective January 1, 2018 which resulted in a deferred tax benefit of $1.0 million primarily related to a reduction of the Company’s deferred tax liability for in process research and development (“IPR&D”).  The Act also established an unlimited carryforward period for the net operating loss (“NOL”) the Company generated in fiscal year 2018.after 2017.  This provision of the Act resulted in a reduction of the valuation allowance attributable to deferred tax assets at the enactment date by $2.0 million based on the indefinite life of the resulting NOL as well as the deferred tax liability for IPR&D.  

The current income tax expense for the yearsyear ended October 31, 2017 and 2016 related to foreign withholding taxes and income taxes in South Korea and there was no deferred federal income tax expense (benefit) for the yearsyear ended October 31, 2017 and 2016.2017.  Franchise tax expense, which is included in administrative and selling expenses, was $0.5$0.2 million, $0.5 million and $0.4$0.5 million for the years ended October 31, 2019, 2018 2017 and 2016,2017, respectively.


The reconciliation of the federal statutory income tax rate to our effective income tax rate for the years ended October 31, 2019, 2018 2017 and 20162017 was as follows:

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Statutory federal income tax rate

 

 

(23.2

)%

 

 

(34.0

)%

 

 

(34.0

)%

 

 

(21.0

)%

 

 

(23.2

)%

 

 

(34.0

)%

Increase (decrease) in income taxes resulting

from:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

State taxes, net of Federal benefits

 

 

0.7

%

 

 

(1.3

)%

 

 

(0.2

)%

 

 

(2.9

)%

 

 

0.7

%

 

 

(1.3

)%

Foreign withholding tax

 

 

0.0

%

 

 

0.1

%

 

 

1.1

%

 

 

0.1

%

 

 

0.0

%

 

 

0.1

%

Net operating loss expiration and true-ups

 

 

4.6

%

 

 

(4.6

)%

 

 

3.3

%

 

 

(1.3

)%

 

 

4.6

%

 

 

(4.6

)%

Nondeductible expenditures

 

 

1.5

%

 

 

1.9

%

 

 

0.9

%

 

 

0.2

%

 

 

1.5

%

 

 

1.9

%

Change in tax rates

 

 

201.6

%

 

 

(0.8

)%

 

 

(0.3

)%

 

 

(0.1

)%

 

 

201.6

%

 

 

(0.8

)%

Other, net

 

 

0.0

%

 

 

0.6

%

 

 

0.2

%

 

 

(0.3

)%

 

 

0.0

%

 

 

0.6

%

Valuation allowance

 

 

(191.2

)%

 

 

38.2

%

 

 

30.1

%

 

 

25.4

%

 

 

(191.2

)%

 

 

38.2

%

Effective income tax rate

 

 

(6.0

)%

 

 

0.1

%

 

 

1.1

%

 

 

0.1

%

 

 

(6.0

)%

 

 

0.1

%

 

Our deferred tax assets and liabilities consisted of the following at October 31, 20182019 and 20172018 (in thousands):

 

 

2018

 

 

2017

 

 

2019

 

 

2018

 

Deferred tax assets:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Compensation and benefit accruals

 

$

7,767

 

 

$

11,158

 

 

$

7,446

 

 

$

7,767

 

Bad debt and other allowances

 

 

426

 

 

 

605

 

 

 

905

 

 

 

426

 

Capital loss and tax credit carry-forwards

 

 

12,295

 

 

 

13,398

 

 

 

12,645

 

 

 

12,295

 

Net operating losses (domestic and foreign)

 

 

202,643

 

 

 

282,022

 

 

 

217,430

 

 

 

202,643

 

Deferred license revenue

 

 

4,765

 

 

 

7,850

 

 

 

4,264

 

 

 

4,765

 

Inventory valuation allowances

 

 

238

 

 

 

111

 

 

 

312

 

 

 

238

 

Accumulated depreciation

 

 

4,374

 

 

 

5,095

 

 

 

9,200

 

 

 

4,374

 

Grant revenue

 

 

910

 

 

 

1,522

 

 

 

798

 

 

 

910

 

Gross deferred tax assets:

 

 

233,418

 

 

 

321,761

 

 

 

253,000

 

 

 

233,418

 

Valuation allowance

 

 

(231,403

)

 

 

(321,761

)

 

 

(250,985

)

 

 

(231,403

)

Deferred tax assets after valuation allowance

 

 

2,015

 

 

 

 

 

 

2,015

 

 

 

2,015

 

Deferred tax liability:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In process research and development

 

 

(2,356

)

 

 

(3,377

)

 

 

(2,321

)

 

 

(2,356

)

Net deferred tax liability

 

$

(341

)

 

$

(3,377

)

 

$

(306

)

 

$

(341

)

 

We continually evaluate our deferred tax assets as to whether it is “more likely than not” that the deferred tax assets will be realized. In assessing the realizability of our deferred tax assets, management considers the scheduled reversal


of deferred tax liabilities, projected future taxable income and tax planning strategies. Based on the projections for future taxable income over the periods in which the deferred tax assets are realizable, management believes that significant uncertainty exists surrounding the recoverability of the deferred tax assets. As a result, with the exception of the discussion above, we recorded a valuation allowance against our net deferred tax assets. None of the valuation allowance will reduce additional paid in capital upon subsequent recognition of any related tax benefits.  As of October 31, 2018,2019, we had federal and state NOL carryforwards of $799.9$850.0 million and $410.2$438.8 million, respectively. The federal NOL carryforwards expire in varying amounts from 20192020 through 2037 while state NOL carryforwards expire in varying amounts from fiscal year 20192020 through 2037.2039.  Federal NOLs generated beginning in fiscal 2018 are not subject to expiration subsequent to the Act discussed above.  Additionally, we had $8.3$8.8 million of state tax credits available that will expire from tax years 20192020 to 2037.2039.

Certain transactions involving the Company’s beneficial ownership occurred in fiscal year 2014 and prior years, which could have resulted in a stock ownership change for purposes of Section 382 of the Internal Revenue Code of 1986, as amended.

We complete a detailed Section 382 ownership shift analysis on an annual basis to determine whether any of our NOL and credit carryovers will be subject to limitation. Based on that study, we determined that there was no ownership change as of the end of our fiscal year 20182019 that impacts Section 382.  The acquisition of Versa in fiscal year 2013 triggered a Section 382 ownership change at the level of Versa Power System which will limit the future usage of some of the federal and state NOLs that we acquired in that transaction.  The federal and state NOLs that are non 382-limited are included inAccordingly, a valuation allowance has been recorded against the NOL deferred tax assets as disclosed.asset associated with these attributes.


As discussed in Note 1, theThe Company’s financial statements reflect expected future tax consequences of uncertain tax positions that the Company has taken or expects to take on a tax return (including a decision whether to file or not file a return in a particular jurisdiction) presuming the taxing authorities’ full knowledge of the position and all relevant facts.

The liability for unrecognized tax benefits as of October 31, 20182019 and 20172018 was $15.7 million. This amount is directly associated with a tax position taken in a year in which federal and state NOL carryforwards were generated. Accordingly, the amount of unrecognized tax benefit has been presented as a reduction in the reported amounts of our federal and state NOL carryforwards. It is our policy to record interest and penalties on unrecognized tax benefits as income taxes; however, because of our significant NOLs, no provision for interest or penalties has been recorded.

We file income tax returns in the U.S. and certain states, primarily Connecticut and California, as well as income tax returns required internationally for South Korea and Germany. We are open to examination by the Internal Revenue Service and various states in which we file for fiscal year 20012002 to the present.  During the fiscal year ended October 31, 2018, the Company underwent an IRS examination for its fiscal year 2016 tax year which was closed without material adjustment.

Note 18. Earnings19. Loss Per Share

Basic earnings (loss) per common share (“EPS”) are generally calculated as income (loss) available to common stockholders divided by the weighted average number of common shares outstanding. Diluted EPS is generally calculated as income (loss) available to common stockholders divided by the weighted average number of common shares outstanding plus the dilutive effect of common share equivalents.


The calculation of basic and diluted EPS for the years ended October 31, 2019, 2018 2017 and 20162017 was as follows (amounts in thousands, except share and per share amounts):

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Numerator

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Net loss

 

$

(47,334

)

 

$

(53,903

)

 

$

(51,208

)

 

$

(77,568

)

 

$

(47,334

)

 

$

(53,903

)

Net loss attributable to noncontrolling interest

 

 

 

 

 

 

 

 

251

 

Series A warrant exchange

 

 

(3,169

)

 

 

 

 

 

 

Series B Preferred stock dividends

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,200

)

 

 

(3,231

)

 

 

(3,200

)

 

 

(3,200

)

Series C Preferred stock deemed dividends

 

 

(9,559

)

 

 

 

 

 

 

Series D Preferred stock redemption accretion

 

 

(2,075

)

 

 

 

 

 

 

Net loss to common stockholders

 

$

(62,168

)

 

$

(57,103

)

 

$

(54,157

)

Series C Preferred stock deemed dividends and redemption value adjustments, net

 

 

(6,522

)

 

 

(9,559

)

 

 

 

Series D Preferred stock deemed dividends and redemption accretion

 

 

(9,755

)

 

 

(2,075

)

 

 

 

Net loss attributable to common stockholders

 

$

(100,245

)

 

$

(62,168

)

 

$

(57,103

)

Denominator

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding - basic

 

 

82,754,268

 

 

 

49,914,904

 

 

 

29,773,700

 

 

 

55,081,266

 

 

 

6,896,189

 

 

 

4,159,575

 

Effect of dilutive securities (1)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Weighted average common shares outstanding - diluted

 

 

82,754,268

 

 

 

49,914,904

 

 

 

29,773,700

 

 

 

55,081,266

 

 

 

6,896,189

 

 

 

4,159,575

 

Net loss to common stockholders per share - basic

 

$

(0.75

)

 

$

(1.14

)

 

$

(1.82

)

 

$

(1.82

)

 

$

(9.01

)

 

$

(13.73

)

Net loss to common stockholders per share - diluted (1)

 

$

(0.75

)

 

$

(1.14

)

 

$

(1.82

)

 

$

(1.82

)

 

$

(9.01

)

 

$

(13.73

)

 

(1)

Due to the net loss to common stockholders in each of the years presented above, diluted earnings per share was computed without consideration to potentially dilutive instruments as their inclusion would have been antidilutive. As of October 31, 2019, 2018 2017 and 2016,2017, potentially dilutive securities excluded from the diluted loss per share calculation are as follows:


 

 

 

October 31, 2018

 

 

October 31, 2017

 

 

October 31, 2016

 

May 2017 Offering –

   Series C Warrants

 

 

11,569,364

 

 

 

11,580,900

 

 

 

 

May 2017 Offering –

   Series D Warrants

 

 

-

 

 

 

2,584,174

 

 

 

 

July 2016 Offering -

   Series A Warrants

 

 

7,680,000

 

 

 

7,680,000

 

 

 

7,680,000

 

July 2016 Offering -

   Series B Warrants

 

 

 

 

 

 

 

 

3,826,000

 

July 2014 Offering - NRG Warrants

 

 

 

 

 

 

 

 

166,666

 

Outstanding options to

   purchase common stock

 

 

323,486

 

 

 

309,950

 

 

 

246,923

 

Unvested RSAs

 

 

1,119,433

 

 

 

1,898,692

 

 

 

915,831

 

Unvested RSUs

 

 

3,251,142

 

 

 

1,109,994

 

 

 

74,204

 

Series C Preferred Shares to satisfy

   conversion requirements (1)

 

 

5,994,667

 

 

 

18,097,826

 

 

 

 

Series D Preferred Shares to satisfy

   conversion requirements (2)

 

 

22,231,884

 

 

 

 

 

 

 

5% Series B Cumulative

   Convertible Preferred Stock (3)

 

 

454,043

 

 

 

454,043

 

 

 

454,043

 

Series 1 Preferred Shares to satisfy

   conversion requirements (3)

 

 

15,168

 

 

 

15,168

 

 

 

15,168

 

Total potentially dilutive securities

 

 

52,639,187

 

 

 

43,730,747

 

 

 

13,378,835

 

 

 

October 31, 2019

 

 

October 31, 2018

 

 

October 31, 2017

 

Orion Warrants

 

 

6,000,000

 

 

 

 

 

 

 

May 2017 Offering – Series C Warrants

 

 

964,114

 

 

 

964,114

 

 

 

965,075

 

May 2017 Offering – Series D Warrants

 

 

 

 

 

 

 

 

215,348

 

July 2016 Offering – Series A Warrants

 

 

 

 

 

640,000

 

 

 

640,000

 

Outstanding options to purchase common stock

 

 

24,927

 

 

 

26,958

 

 

 

25,830

 

Unvested Restricted Stock Awards

 

 

24,574

 

 

 

93,286

 

 

 

158,224

 

Unvested Restricted Stock Units

 

 

166,541

 

 

 

270,929

 

 

 

92,500

 

Series C Preferred Shares to satisfy conversion requirements (1)

 

 

 

 

 

499,556

 

 

 

1,508,152

 

Series D Preferred Shares to satisfy conversion requirements (2)

 

 

 

 

 

1,852,657

 

 

 

 

5% Series B Cumulative Convertible Preferred Stock (3)

 

 

37,837

 

 

 

37,837

 

 

 

37,837

 

Series 1 Preferred Shares to satisfy conversion requirements (3)

 

 

1,264

 

 

 

1,264

 

 

 

1,264

 

Total potentially dilutive securities

 

 

7,219,257

 

 

 

4,386,601

 

 

 

3,644,230

 

 

(1)

The number of shares of common stock issuable upon conversion of the Series C Preferred Stock was calculated using the liquidation preference value outstanding on October 31, 2018 of $9.0 million divided by the reduced conversion price of $1.50$18.00 and the liquidation preference of $33.3 million divided by the conversion price of


$1.84 $22.08 as of October 31, 2017.  The actual number of shares issued could varywas subject to variation depending on the actual market price of the Company’s common shares on the datedates of such conversions.  All Series C Preferred Stock was converted prior to October 31, 2019.

(2)

The number of shares of common stock issuable upon conversion of the Series D Preferred Stock was calculated using the liquidation preference value outstanding on October 31, 2018 of $30.7 million divided by the conversion price of $1.38.$16.56.  The actual number of shares issued could varywas subject to variation depending on the actual market price of the Company’s common shares on the datedates of such conversions.  All Series D Preferred Stock was converted prior to October 31, 2019.

(3)

Refer to Note 14, Redeemable15. “Redeemable Preferred Stock,Stock” for information onregarding the calculation of the common shares issuable upon conversion.conversion as of October 31, 2019.

Note 19.20. Commitments and Contingencies

Lease agreementsAgreements

As of October 31, 20182019 and 2017,2018, we had capital lease obligations of $0.3$0.1 million and $0.6$0.3 million, respectively. Lease payment terms are primarily thirty-six months from the date of lease.

We also lease certain computer and office equipment and manufacturing facilities in Torrington and Danbury, Connecticut under operating leases expiring on various dates through 2030.  Rent expense was $1.0 million, $1.2 million $1.6 million and $1.8$1.6 million for the years ended October 2019, 2018 and 2017, and 2016, respectively.

Non-cancelable minimum payments applicable to operating and capital leases at October 31, 20182019 were as follows (in thousands):

 

 

Operating

Leases

 

 

Capital

Leases

 

 

Operating

Leases

 

 

Capital

Leases

 

2019

 

$

841

 

 

$

237

 

 

$

922

 

 

$

102

 

2020

 

 

570

 

 

 

83

 

 

 

1,240

 

 

 

35

 

2021

 

 

381

 

 

 

17

 

 

 

1,221

 

 

 

4

 

2022

 

 

378

 

 

 

4

 

 

 

1,022

 

 

 

 

2023

 

 

374

 

 

 

 

 

 

720

 

 

 

 

Thereafter

 

 

3,004

 

 

 

 

 

 

8,707

 

 

 

 

Total

 

$

5,548

 

 

$

341

 

 

$

13,832

 

 

$

141

 

 


Service Agreements

Under the provisions of ourits service agreements, we providethe Company provides services to maintain, monitor, and repair customer power plants to meet minimum operating levels. Under the terms of oursuch service agreements, the particular power plant must meet a minimum operating output during defined periods of the term. If minimum output falls below the contract requirement, wethe Company may be subject to performance penalties and/or may be required to repair or replace the customer’s fuel cell module(s). An estimate is not recorded for a potential performance guarantee liability until a performance issue has occurred at a particular power plant. At that point, the actual power plant’s output is compared against the minimum output guarantee and an accrual is recorded. The review of power plant performance is updated each reporting period to incorporate the most recent performance of the power plant and minimum output guarantee payments made to customers, if any. The Company has provided for an accrual for performance guarantees, based on actual fleet performance, which totaled $1.1 million and $2.2 million as of October 31, 2018 and 2017, respectively, and is recorded in “Accrued liabilities.”

Our loss accrual on service agreements, excluding the accrual for performance guarantees, totaled $0.9 million and $1.1 million as of October 31, 2018 and 2017, respectively, and is recorded in “Accrued liabilities.” Our loss accrual estimates are performed on a contract by contract basis and include cost assumptions based on what we anticipate the service requirements will be to fulfill obligations under each contract.  The decrease primarily relates to module exchanges performed during the year ended October 31, 2018.


Power Purchase Agreements

Under the terms of ourthe Company’s PPAs, customers agree to purchase power from ourthe Company’s fuel cell power plants at negotiated rates. Electricity rates are generally a function of the customers’ current and estimated future electricity pricing available from the grid. As owner or lessee of the power plants, we arethe Company is responsible for all operating costs necessary to maintain, monitor and repair the power plants. Under certain agreements, we arethe Company is also responsible for procuring fuel, generally natural gas or biogas, to run the power plants.

Assistance Agreement with  In addition, under the Stateterms of Connecticut

On April 17, 2017,some of the PPA agreements, the Company entered into an amendmentis subject to the Assistance Agreement extending certain job creation target dates by two years to October 28, 2019.  Under the Assistance Agreement, as amended, the Company targeted employment of 703 Connecticut employees by October 2019.  In connection with this amendment to the Assistance Agreement, in July 2018, the Company announced an increase in its annual production rate and committed to hire over 100 employees.  As of October 31, 2018, the Company had 452 Connecticut employees.  The Company cannot currently predict whether it will meet its target of employing 703 Connecticut employees by October 2019 or whether the time period for meeting this target will be extended.  If the Company does not meet this target in the required time period, principal under the promissory note will be paid at an annual rate of $14.0 thousand for each employee under the 703 employee target.a performance penalty.

Other

At October 31, 2018,2019, the Company has unconditional purchase commitments aggregating $64.0$34.6 million, for materials, supplies and services in the normal course of business.

Under certain sales and financing agreements, the

The Company is contractually committed to provide compensation for any losses that our customers and finance partners may suffer in certain limited circumstances resulting from reductions in realization of the U.S. Investment Tax Credit. Such obligations would arise as a result of reductions to the value of the underlying fuel cell projects as assessed by the U.S. Internal Revenue Service (the “IRS”). The Company does not believe that any payments under these contracts are probable based on the facts known at the reporting date. The maximum potential future payments that the Company could have to make with respect to these obligations would depend on the difference between the fair values of the fuel cell projects sold or financed and the values the IRS would determine as the fair value for the systems for purposes of claiming the Investment Tax Credit. The value of the Investment Tax Credit in the Company’s agreements is based on guidelines provided by the regulations from the IRS. The Company and its customers use fair values determined with the assistance of independent third-party appraisals.

We are involved in legal proceedings, claims and litigation arising out of the ordinary conduct of ourits business. Although wethe Company cannot assure the outcome, management presently believes that the result of such legal proceedings, either individually, or in the aggregate, will not have a material adverse effect on ourthe Company’s consolidated financial statements, and no material amounts have been accrued in ourthe Company’s consolidated financial statements with respect to these matters.


Note 20.21. Supplemental Cash Flow Information

The following represents supplemental cash flow information, including amounts effectively settled as described in Note 3. “Acquisitions” (dollars in thousands):

 

 

Year Ended October 31,

 

 

Year Ended October 31,

 

 

2018

 

 

2017

 

 

2016

 

 

2019

 

 

2018

 

 

2017

 

Cash interest paid

 

$

4,486

 

 

$

2,715

 

 

$

1,941

 

 

$

4,091

 

 

$

4,486

 

 

$

2,715

 

Income taxes paid

 

 

2

 

 

 

2

 

 

 

80

 

 

 

48

 

 

 

2

 

 

 

2

 

Noncash financing and investing activity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Common stock issued for Employee Stock Purchase

Plan in settlement of prior year accrued employee

contributions

 

 

 

 

 

50

 

 

 

105

 

 

 

 

 

 

 

 

 

50

 

Noncash reclass between inventory and project assets

 

 

10,793

 

 

 

7,282

 

 

 

 

 

 

 

 

 

10,793

 

 

 

7,282

 

Assumption of debt in conjunction with asset

acquisition

 

 

 

 

 

2,289

 

 

 

 

 

 

 

 

 

 

 

 

2,289

 

Acquisition of project assets

 

 

 

 

 

2,386

 

 

 

 

 

 

16,704

 

 

 

 

 

 

2,386

 

Series C Preferred stock conversions

 

 

20,220

 

 

 

 

 

 

 

 

 

15,491

 

 

 

20,220

 

 

 

 

Accrued sale of common stock, cash received in a

subsequent period

 

 

 

 

 

 

 

 

357

 

Series C preferred share modification

 

 

(6,047

)

 

 

 

 

 

 

Series D preferred share conversions

 

 

31,183

 

 

 

 

 

 

 

Accrued purchase of fixed assets, cash paid in

subsequent period

 

 

1,579

 

 

 

2,490

 

 

 

3,952

 

 

 

71

 

 

 

1,579

 

 

 

2,490

 

Accrued purchase of project assets, cash paid in

subsequent period

 

 

3,115

 

 

 

2,380

 

 

 

1,797

 

 

 

222

 

 

 

3,115

 

 

 

2,380

 

 


Note 21.22. Quarterly Information (Unaudited)

Selected unaudited financial data for each quarter of fiscal year 20182019 and 20172018 is presented below. We believe that the information reflects all normal recurring adjustments necessary for a fair presentation of the information for the periods presented.

 

(in thousands)

 

First

Quarter

 

 

Second

Quarter

 

 

Third

Quarter

 

 

Fourth

Quarter

 

 

Full

Year

 

 

First

Quarter

 

 

Second

Quarter

 

 

Third

Quarter

 

 

Fourth

Quarter

 

 

Full

Year

 

Year ended October 31, 2019

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

17,783

 

 

$

9,216

 

 

$

22,712

 

 

$

11,041

 

 

$

60,752

 

Gross (loss) profit

 

 

(2,205

)

 

 

(3,640

)

 

 

7,965

 

 

 

(23,389

)

 

 

(21,269

)

Loss on operations

 

 

(15,244

)

 

 

(17,623

)

 

 

(1,070

)

 

 

(32,992

)

 

 

(66,929

)

Net loss

 

 

(17,548

)

 

 

(19,530

)

 

 

(5,311

)

 

 

(35,179

)

 

 

(77,568

)

Series A warrant exchange

 

 

-

 

 

 

(3,169

)

 

 

-

 

 

 

-

 

 

 

(3,169

)

Series B Preferred stock dividends

 

 

(800

)

 

 

(800

)

 

 

(810

)

 

 

(821

)

 

 

(3,231

)

Series C preferred stock deemed contributions (dividends)

 

 

(9,005

)

 

 

1,599

 

 

 

884

 

 

 

-

 

 

 

(6,522

)

Series D preferred stock deemed dividends

 

 

(5,685

)

 

 

(976

)

 

 

(3,091

)

 

 

(3

)

 

 

(9,755

)

Net loss to common stockholders

 

 

(33,038

)

 

 

(22,876

)

 

 

(8,328

)

 

 

(36,003

)

 

 

(100,245

)

Net loss to common stockholders per basic and diluted common share (1)

 

$

(3.97

)

 

$

(2.06

)

 

$

(0.18

)

 

$

(0.23

)

 

$

(1.82

)

Year ended October 31, 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

38,613

 

 

$

20,830

 

 

$

12,110

 

 

$

17,884

 

 

 

89,437

 

 

$

38,613

 

 

$

20,830

 

 

$

12,110

 

 

$

17,884

 

 

 

89,437

 

Gross profit (loss)

 

 

4,635

 

 

 

(629

)

 

 

(2,056

)

 

 

1,143

 

 

 

3,093

 

 

 

4,635

 

 

 

(629

)

 

 

(2,056

)

 

 

1,143

 

 

 

3,093

 

Loss on operations

 

 

(5,553

)

 

 

(12,735

)

 

 

(14,474

)

 

 

(11,870

)

 

 

(44,632

)

 

 

(5,553

)

 

 

(12,735

)

 

 

(14,474

)

 

 

(11,870

)

 

 

(44,632

)

Net loss

 

 

(4,183

)

 

 

(13,174

)

 

 

(15,881

)

 

 

(14,096

)

 

 

(47,334

)

 

 

(4,183

)

 

 

(13,174

)

 

 

(15,881

)

 

 

(14,096

)

 

 

(47,334

)

Series B Preferred stock dividends

 

 

(800

)

 

 

(800

)

 

 

(800

)

 

 

(800

)

 

 

(3,200

)

 

 

(800

)

 

 

(800

)

 

 

(800

)

 

 

(800

)

 

 

(3,200

)

Series C Preferred stock deemed dividends

 

 

(3,463

)

 

 

(4,199

)

 

 

(939

)

 

 

(958

)

 

 

(9,559

)

 

 

(3,463

)

 

 

(4,199

)

 

 

(939

)

 

 

(958

)

 

 

(9,559

)

Series D Preferred stock redemption accretion

 

 

 

 

 

 

 

 

 

 

 

(2,075

)

 

 

(2,075

)

 

 

 

 

 

 

 

 

 

 

 

(2,075

)

 

 

(2,075

)

Net loss to common stockholders

 

 

(8,446

)

 

 

(18,173

)

 

 

(17,620

)

 

 

(17,929

)

 

 

(62,168

)

 

 

(8,446

)

 

 

(18,173

)

 

 

(17,620

)

 

 

(17,929

)

 

 

(62,168

)

Net loss to common stockholders per basic

and diluted common share (1)

 

$

(0.12

)

 

$

(0.23

)

 

$

(0.20

)

 

$

(0.19

)

 

 

(0.75

)

 

$

(1.41

)

 

$

(2.74

)

 

$

(2.45

)

 

$

(2.31

)

 

 

(9.01

)

Year ended October 31, 2017

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Revenues

 

$

17,002

 

 

$

20,417

 

 

$

10,358

 

 

$

47,889

 

 

 

95,666

 

Gross (loss) profit

 

 

1,813

 

 

 

383

 

 

 

(2,626

)

 

 

3,164

 

 

 

2,734

 

Loss on operations

 

 

(10,928

)

 

 

(11,496

)

 

 

(14,330

)

 

 

(8,181

)

 

 

(44,935

)

Net loss

 

 

(13,685

)

 

 

(13,238

)

 

 

(17,001

)

 

 

(9,979

)

 

 

(53,903

)

Preferred stock dividends

 

 

(800

)

 

 

(800

)

 

 

(800

)

 

 

(800

)

 

 

(3,200

)

Net loss to common stockholders

 

 

(14,485

)

 

 

(14,038

)

 

 

(17,801

)

 

 

(10,779

)

 

 

(57,103

)

Net loss to common stockholders per basic

and diluted common share (1)

 

$

(0.39

)

 

$

(0.33

)

 

$

(0.31

)

 

$

(0.17

)

 

 

(1.14

)

 

(1)

The full year net loss to common stockholders basic and diluted share may not equal the sum of the quarters due to weighting of outstanding shares.


Note 22.23. Subsequent Events

NRG Loan Facility

As described in Note 12,ExxonMobil Research and Engineering Company Joint Development Agreement

On November 5, 2019, the Company hassigned a project finance facilitytwo-year JDA with NRGEMRE, pursuant to which NRG extended a $40the Company will continue exclusive research and development efforts with EMRE to evaluate and develop new and/or improved carbonate fuel cells to reduce carbon dioxide emissions from industrial and power sources, in exchange for (a) payment of (i) an exclusivity and technology access fee of $5.0 million, revolving construction(ii) up to $45.0 million for research and term financing facility (the “Loan Facility”)development efforts, and (iii) milestone-based payments of up to FuelCell Finance for$10.0 million after certain technological milestones are met, and (b) certain licenses to patents and patent applications, and copyrightable works resulting from the purpose of accelerating project development byJDA.

Orion Credit Agreement

As disclosed in Note 13. “Debt”, on October 31, 2019, the Company and certain of its subsidiaries.subsidiaries as guarantors entered into the Orion Credit Agreement with the Agent and certain of its affiliates as lenders for a $200.0 million senior secured credit facility, structured as a delayed draw term loan, to be provided by the lenders.  On December 13, 2018,November 22, 2019, the Company made a second draw under the Orion Credit Agreement (the “Second Funding”) of $65.5 million, which was funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Finance’s wholly owned subsidiary, Central CA Fuel Cell 2, LLC, drewCo-Invest, L.P. (the “Orion Lenders”), such that the total fundings to the Company under the Orion Facility were equal to


$80.0 million.  The funds drawn in the Second Funding were reduced by a Loan Discount (described further in Note 13. “Debt”) of $1.6 million, which was retained by the Orion Lenders.  Proceeds from the Second Funding were used to repay outstanding third party debt of the Company with respect to certain other Company projects, including the construction loan advance of $5.8 million underfrom Fifth Third Bank on the Loan Facility. This advance will be usedGroton Project and the loan from Webster Bank on the CCSU Project, as well as to supportfund remaining going forward construction costs relating to certain projects, including  the completion of construction ofGroton Project (a 7.4 MW project), the 2.8LIPA Yaphank Solid Waste Management Project (a 7.4 MW project), and the Tulare BioMAT project (a 2.8 MW project).

In accordance with the Orion Credit Agreement in California. This plant is expectedconnection with the Second Funding, on November 22, 2019, the Company issued to meet its commercial operations date (COD) in March 2019.  the Orion Lenders warrants to purchase up to a total of 14.0 million shares of the Company’s common stock (the “Second Funding Warrants”), with an initial exercise price with respect to 8.0 million of such shares of $0.242 per share and with an initial exercise price with respect to 6.0 million of such shares of $0.620 per share (such $0.620 per share exercise price being at a premium to the market price at the time of entry into the Orion Credit Agreement).

In conjunction with the December 13, 2018 draw, FuelCell FinanceSecond Funding, the Company and NRGthe other loan parties entered into an amendmentthe First Amendment to the NRGOrion Credit Agreement (the “Amendment”“First Orion Amendment”), which required the Company to reviseestablish a $5.0 million debt reserve, with such reserve to be released on the definitionsfirst date following the date of the terms “Maturity Date” and “Project Draw Period” underSecond Funding on which all of the NRG Agreement and to make other related revisions.  Prior tofollowing events shall have occurred: (a) each of (x) the Amendment, FuelCell Finance and its subsidiaries were able to request draws under the Loan Facility through July 30, 2019 and the Maturity Date of each note under the Loan Facility was five years after the first disbursement under such note.  Pursuant to the Amendment, FuelCell Finance and its subsidiaries may now request draws only through December 31, 2018 and the Maturity Date of each note is the earlier of (a) March 31, 2019 and (b) the COD (commercialcommercial operation date for the Tulare BioMAT project shall have occurred and (y) a disposition, refinancing or substantial completiontax equity investment in the Tulare BioMAT project of at least $5 million is consummated; (b) each of (x) the Groton Project shall have achieved its business plan in accordance with the Groton Construction Budget (as defined in the Orion Credit Agreement), (y) the commercial operation date as applicable)for the Groton Project shall have occurred and (z) the Groton Project shall have met its annualized output and heat rate guarantees for three months; and (c) a disposition, refinancing or tax equity investment of at least $30 million shall have occurred with respect to the fuel cellGroton Project.  The First Orion Amendment further requires the Company (i) to provide, no later than December 31, 2019 (or such later date as the Agent may, in its sole discretion, agree in writing), a biogas sale and purchase agreement through December 31, 2021 for the Tulare BioMAT project, ownedwhich was obtained as of such date, (ii) to obtain by December 31, 2019 (or such later date as the borrower underAgent may, in its sole discretion, agree in writing) a fully executed contract for certain renewable energy credits for the Groton Project, which was obtained as of such note.  Theredate, and (iii) to provide by January 31, 2020 (or such later date as the Agent may, in its sole discretion, agree in writing) certain consents and estoppels from CMEEC related to the Groton Project and an executed, seventh modification to the lease between CMEEC and the United States Government, acting by and through the Department of the Navy. The First Orion Amendment provides that, if the requirements set forth in clauses (ii) and (ii) above are currently no other drawdowns or outstanding balancesnot timely satisfied, the Company will grant the Agent, on behalf of the Orion Lenders, a security interest and lien on all of the Company’s intellectual property, with such lien and security interest to be released at such time as the Company has satisfied such requirements.

In addition, in connection with the January 2020 Letter Agreement among the Company, FCE Ltd. and Enbridge described below, on January 20, 2020, in order to obtain the lenders’ consent to the January 2020 Letter Agreement as required under the Loan Facility.Orion Credit Agreement, the Company and the other loan parties entered into the Second Amendment to the Orion Credit Agreement (the “Second Orion Amendment”), which adds a new affirmative covenant to the Orion Credit Agreement that obligates the Company to, and to cause FCE Ltd. to, on or prior to November 1, 2021, either (i) pay and satisfy in full all of their respective obligations in respect of, and fully redeem and cancel, all of the Series 1 Preferred Shares of FCE Ltd., or (ii) deposit in a newly created account of FCE Ltd. or the Company cash in an amount sufficient to pay and satisfy in full all of their respective obligations in respect of, and to effect a redemption and cancellation in full of, all of the Series 1 Preferred Shares of FCE Ltd. The Second Orion Amendment also provides that the articles of FCE Ltd. setting forth the modified terms of the Series 1 Preferred Shares will be considered a “Material Agreement” under the Orion Credit Agreement. Under the Second Orion Amendment, a failure to satisfy this new affirmative covenant or to otherwise comply with the terms of the Series 1 Preferred Shares will constitute an event of default under the Orion Credit Agreement, which could result in the acceleration of any amounts outstanding under the Orion Credit Agreement.

Generate Lending Loan Facility


Cashless Exercise of Certain Orion Warrants

On December 21, 2018,January 9, 2020, the Orion Lenders exercised, on a cashless basis, Orion Warrants (with cash exercise prices of $0.310 per share and $ 0.242 per share) representing the right to purchase, in the aggregate, 12.0 million shares of the Company’s common stock.  Because these warrants were exercised on a cashless basis pursuant to the formula set forth in the warrants, the Orion Lenders received, in the aggregate, a “net number” of 9,396,319 shares of the Company’s common stock upon the exercise of Initial Funding Warrants representing the right to purchase 6.0 million shares of the Company’s common stock and Second Funding Warrants representing the right to purchase 6.0 million shares of the Company’s common stock. The other 2,603,681 shares, which were not issued to the Orion Lenders due to the cashless nature of the exercise, are no longer required to be reserved for issuance upon exercise of the Orion Warrants.

Termination of Construction Loan Agreement with Fifth Third Bank

As disclosed in Note 13. “Debt”, on February 28, 2019, the Company, through its indirect wholly-owned subsidiary, FuelCell Energy Finance II, LLC (“FCEF II” or “Borrower”),Groton Borrower, entered into a Construction Loanthe Groton Agreement (the “Agreement” or the “Generate Lending Construction Loan Agreement”) with Generate Lending, LLC (“Lender” or “Generate Lending”)Fifth Third Bank pursuant to which Generate LendingFifth Third Bank agreed (the “Commitment”) to make available to FCEF IIGroton Borrower a creditconstruction loan facility in an aggregate principal amount of up to $100.0$23.0 million and, subject to further Lender approval and available capital, up to $300.0 million if requested by the Company (the “Facility”) to fund the manufacture, construction, installation, commissioning and start-up of stationary fuel cell projectsthe 7.4 MW Groton Project.  Groton Borrower made an initial draw under the Groton Facility on the date of closing of the facility of $9.7 million and made an additional draw of $1.4 million in April 2019.  The total outstanding balance under the Groton Facility as of November 22, 2019 (prior to the payment described below) was $11.1 million.  Groton Borrower and Fifth Third Bank entered into a payoff letter, dated November 22, 2019, pursuant to which, on November 22, 2019, the Agent, on behalf of Groton Borrower, paid off all of Groton Borrower’s indebtedness to Fifth Third Bank under the Groton Agreement and thereby terminated the Groton Facility.

Termination of Term Loan Agreements with Webster Bank

On November 22, 2019, the Webster Bank debt was repaid in full and the borrowing arrangement was terminated.

Connecticut Green Bank Loan

As described in Note 13. “Debt”, the Company had a long-term loan agreement with the Connecticut Green Bank (“Green Bank”) for a loan totaling approximately $5.9 million in support of the Bridgeport Fuel Cell Project (as amended from time to time, the “Green Bank Loan Agreement”).  On and effective as of December 19, 2019, the Company and Green Bank entered into an amendment to the Green Bank Loan Agreement (the “Green Bank Amendment”). Upon the execution of the Green Bank Amendment on December 19, 2019, Green Bank made an additional loan to the Company in the aggregate principal amount of $3.0 million (the “December 2019 Loan”), which is to be developedused (i) first, to pay closing fees related to the acquisition of the Bridgeport Fuel Cell Project and the Subordinated Credit Agreement, other fees, and accrued interest from May 9, 2019, totaling $404,000 (“Accrued Fees”), and (ii) thereafter, for general corporate purposes as determined by the Company, on behalfincluding, but not limited to, expenditures in connection with the project being constructed by Groton Station Fuel Cell, LLC (“Groton Fuel Cell”). Pursuant to the terms of Borrower during the Availability Period (as defined below and in the Agreement). Fuel cell projects must meet certain conditionsGreen Bank Amendment, Green Bank will have no further obligation to be determined to be “Approved Projects”make loans under the Facility. The Facility will be comprised of multiple loans to individual Approved Projects (each, a “Working Capital Loan”). Each Working CapitalGreen Bank Loan will be sized to the lesser of (i) 100% of the construction budget and (ii) the invested amount that allows Lender to achieve a 10% unlevered, after-tax inefficient internal rate of return. Approved Projects will be funded at milestones on a cost incurred basis. FCEF IIAgreement and the Company will contribute anyhave no right to make additional equity required to construct an Approved Projectdraws under the Green Bank Loan Agreement.


The Green Bank Amendment provides that, until such time as the loan (which includes both the outstanding principal balance of the original loan under the Green Bank Loan Agreement and the outstanding principal amount of the December 2019 Loan) has been repaid in its entirety, interest on a pari-passu basis with the Working Capital Loans.  The Commitment to provide Working Capital Loans will remainoutstanding balance of the loan shall accrue monthly in place for thirty-six monthsarrears from the date of the Agreement (the “Availability Period”).  Interest will accrueGreen Bank Amendment at 9.5%a rate of 5% per annum calculateduntil May 8, 2019 and at a rate of 8% per annum thereafter, payable by the Company on a 30/360monthly basis in arrears. The Green Bank Amendment further provides that the payment by the Company of the Accrued Fees (as described above) includes any shortfall of interest due but unpaid by the Company through and including November 30, 2019. Interest payments made by the Company after the date of the Green Bank Amendment are to be applied first to interest that has accrued on allthe outstanding principal paidbalance of the original loan under the Green Bank Loan Agreement and then to interest that has accrued on the first business day of each month. The initial draw amount under this facility, funded at closing, was $10 million.December 2019 Loan.

 

The Green Bank Amendment also modifies the repayment and mandatory prepayment terms and extends the maturity date set forth in the original Green Bank Loan Agreement. Under the Green Bank Amendment, to the extent that excess cash flow reserve funds under the BFC Credit Agreement are eligible for disbursement to Bridgeport Fuel Cell, LLC pursuant to Section 6.23(c) of the BFC Credit Agreement, such funds are to be paid to Green Bank, to be applied first to repay the outstanding principal balance of the original loan under the Green Bank Loan Agreement and thereafter to repay the outstanding principal amount of each Working Capitalthe December 2019 Loan, will beuntil repaid in full. The Green Bank Amendment further provides that the earlier of (a) the achievemententire unpaid balance of the Commercial Operation Dateloan and all other obligations due under the Engineering, Procurement and Construction (“EPC”)Green Bank Loan Agreement for such Approved Project, (b) ninety days prior to the required Commercial Operation Date under the Revenue Contract (as defined in the Agreement), or (c) upon certain defaults by Borrower. The lender has the right to issue a notice to the Borrower that the Commitment, and that all Working Capital Loans shallwill be due and payable on May 9, 2026 if not paid sooner in accordance with the Green Bank Loan Agreement. Finally, with respect to mandatory prepayments, the Green Bank Amendment provides that, when the Company has closed on the subordinated project term loan pursuant to the Commitment Letter, dated February 6, 2019, issued by Green Bank to Groton Fuel Cell to provide a subordinated project term loan to Groton Fuel Cell in the amount of $5.0 million (the “Groton Commitment Letter”), the Company will be required prepay to Green Bank the lesser of any then outstanding amount of the December 2019 Loan and the amount of the subordinated project term loan actually advanced by Green Bank.

Series B Preferred Stock Dividend

On October 30, 2019, the Company declared dividends on the Series B Preferred Stock, which included the accrued dividends payable under the Series B Certificate of Designation with respect to the May 15, 2019 and August 15, 2019 dividend payment dates and the dividends payable with respect to the November 15, 2019 dividend payment date, which were paid on or about November 15, 2019.  The aggregate dividend payment was $2.4 million.

Series 1 Preferred Stock Return of Capital and Dividend Payment

On November 26, 2019, the Company made the return of capital and dividend payments due as of March 31, 2019, June 30, 2019 and September 30, 2019; provided2019, in an aggregate amount equal to Cdn. $0.9 million on the Series 1 Preferred Stock.

Series 1 Preferred Stock – Letter Agreement

As described in Note 15. “Redeemable Preferred Stock,” as of October 31, 2019, FCE Ltd. or the Company, as the guarantor of FCE Ltd.’s payment obligations with respect to the Series 1 Preferred Shares, was obligated to pay, on or before December 31, 2020, all accrued and unpaid dividends on the Series 1 Preferred Shares and the balance of the principal redemption price with respect to all of the Series 1 Preferred Shares. As of October 31, 2019, the aggregate amount of all accrued and unpaid dividends to be paid on the Series 1 Preferred Shares on December 31, 2020 was expected to be Cdn. $21.1 million and the balance of the principal redemption price to be paid on December 31, 2020 with respect to all of the Series 1 Preferred Shares was expected to be Cdn. $4.4 million. Interest under the Series 1 Preferred Shares accrued at annual rate of 5%. In addition, the holder of the Series 1 Preferred Shares had the right to exchange such shares for fully paid and non-assessable shares of common stock of the Company at certain specified prices, and FCE Ltd. had the option of making dividend payments in the form of common stock of the Company or cash.


On January 20, 2020, the Company, FCE Ltd. and Enbridge entered into a letter agreement (the “January 2020 Letter Agreement”), pursuant to which they agreed to amend the articles of FCE Ltd. relating to and setting forth the terms of the Series 1 Preferred Shares to: (i) remove the provisions of the articles permitting or requiring the issuance of shares of the Company’s common stock in exchange for the Series 1 Preferred Shares or as payment of amounts due to the holders of the Series 1 Preferred Shares, (ii) remove certain provisions of the articles relating to the redemption of the Series 1 Preferred Shares, (iii) increase the annual dividend rate, commencing on January 1, 2020, to 15%, (iv) extend the final payment date for all accrued and unpaid dividends and all return of capital payments (i.e., payments of the principal redemption price) from December 31, 2020 to December 31, 2021, (v) clarify when dividend and return of capital payments are to be made in the future and extend the quarterly dividend and return of capital payments through December 31, 2021(which were previously to be paid each quarter through December 31, 2020), (vi) remove certain terms and provisions of the articles that are no longer applicable, and (vii) make other conforming changes to the articles.  In addition, the parties agreed to amend the Company’s guarantee in favor of Enbridge as necessary or as the parties may mutually agree, in either case, in order to be consistent with such notice shallamended articles and to maintain the Company’s guarantee of FCE Ltd.’s obligations under the Series 1 Preferred Shares.

After taking into account the amendments to the terms of the Series 1 Preferred Shares described in the January 2020 Letter Agreement, the aggregate amount of all accrued and unpaid dividends to be issued bypaid on the Lender, if atSeries 1 Preferred Shares on December 31, 2021 is expected to be Cdn. $26.5 million and the balance of the principal redemption price to be paid on December 31, 2021 with respect to all duringof the ten (10) daySeries 1 Preferred Shares is expected to be Cdn. $3.5 million.

Sales of Common Stock under Sales Agreement

During the period beginning on June 20,November 7, 2019 and ending on (and including) June 30, 2019. IfNovember 11, 2019, the Lender delivers such notice, allCompany issued and sold a total of the Working Capital Loans, together with all accrued and unpaid interest thereon, shall be due and payable inapproximately 7.9 million shares of its entirety, without penalty or premium. If the Lender delivers such notice, the Borrower may prepay all then outstanding Working Capital Loans at any time prior to September 30, 2019. Mandatory prepayments are required in the event of (i) material damage or destruction to an Approved Project, (ii) termination or default under an Approved Project’s Revenue Contract, (iii) a change of control, or (iv) failure to achieve Substantial Completion as definedcommon stock under the EPCSales Agreement for such Approved Project byat prevailing market prices, with an average sale price of $0.46 per share, and raised aggregate gross proceeds of approximately $3.6 million, before deducting expenses and commissions.  Commissions of $0.1 million were paid to the required dates.Sales Agent in connection with these sales, resulting in net proceeds to the Company of approximately $3.5 million.

 

Provided that the Approved Project has been completed as of the maturity date and no defaults exist with respect to the Working Capital Loans for such Approved Project, FCEF II, as determined in its sole discretion, will have a 90-


day period to either sell the Approved Project or effect a refinancing, in either case proceeds of which will be used to repay the Working Capital Loan for the Approved Project. In the case of a disposition of the Approved Project, Lender will be entitled to a “Disposition Fee,” as described below. In the case where the Working Capital Loan for the Project is refinanced, Lender will have the right to make an equity investment in the Approved Project on terms such that Lender derives an after-tax yield of no less than a 12% internal rate of return on an investment of greater than 10% of the total purchase price. Borrower and Lender will enter into an arrangement to share any returns realized in excess of the foregoing target return. In the event that Borrower does not sell or refinance an Approved Project within ninety days following the Working Capital Loan maturity date (or such other date as may be mutually agreed), then the outstanding balance of the Working Capital Loan on such Approved Project shall convert into a 100% equity ownership of the applicable project company owning such Approved Project through execution of a Membership Interest Purchase Agreement (“MIPA”) with the Lender. At that time, the Lender will own the project and Borrower will not have any repayment obligations. Included in the applicable MIPA for each Approved Project subject to this provision will be a conditional purchase price adjustment for Borrower equal to 50% of any distributions to Lender after Lender has achieved a 10% inefficient after-tax, unlevered internal rate of return. In the event that Borrower and Lender are unable to come to terms on a MIPA for any Approved Project, the Working Capital Loan for such Approved Project will be required to be repaid in full without penalty or premium.

Borrower will pay a draw down fee equal to 3% of the amount of each Working Capital Loan and certain other diligence and administration fees. Upon the sale of any Approved Project to a third party, Lender will be entitled to a disposition fee equal to 3% of the total sale price (“Disposition Fee”). At such time as Lender has made Working Capital Loans in the aggregate amount of greater than $100,000,000 but less than $200,000,000, the Disposition Fee is reduced to 2% and in the aggregate amount of greater than $200,000,000 but less than $300,000,000, the Disposition Fee is reduced to 1%.

The initial draw amount under this Facility, funded at closing, was $10 million. The initial draw reflects loan advances for the first Approved Project under the Facility, the Bolthouse Farms 5 MW project in California. Additional drawdowns are expected to take place as the Company completes certain project milestones. The Company expects to use this Facility to fund the construction of its backlog, including the three LIPA projects totaling 39.8 MW and the two projects awarded pursuant to the Connecticut DEEP RFP, totaling 22.2 MW.

Amendment to Hercules Loan and Security Agreement

As noted in Note 12, the Company has a loan and security agreement with Hercules forhad sold an aggregate principal amount of up to $25.0 million, subject to certain terms and conditions.

On December 19, 2018, to facilitate the Generate Lending Construction Loan Agreement described above, the Company and Hercules (and various affiliated entities) entered into the fifth amendment to the loan and security agreement to (i) modify the definitions of “Permitted Investment”, “Permitted Liens”, “Project Companies”, “Project Company Indebtedness”, and “Qualified Subsidiary” to permit the creation of a new holding company, FuelCell Energy Finance II, LLC to hold the membership interests of project companies to be funded under the Facility described above and (ii) modify the definition of “Project Roundtrip Transaction” to increase the investment amount under a Project Roundtrip Transaction to $40.0 million.

Series C Preferred Shares

As noted in Note 14, as of October 31, 2018 and 2017, there were 8,992 shares and 33,300 shares of Series C Preferred Stock issued and outstanding, respectively, with a carrying value of $7.5 million and $27.7 million, respectively. As of October 31, 2018, the Series C Preferred Shares were convertible intoapproximately 17,998,846 shares of common stock subject tounder the beneficial ownership limitations provided in the Series C Certificate of Designations, at a conversion price equal to $1.50 per share.  The conversion price is subject to adjustment as provided in the Series C Certificate of Designations, including adjustments if the Company sells shares of common stock or equity securities convertible into or exercisable for shares of common stock, at variable prices below the conversion price then in effect.  Subsequent to October 31, 2018, the conversion price has been periodically adjusted in accordance with the terms of the Series C Certificate of Designations and was $0.434Sales Agreement as of January 2,November 11, 2019.

 


Item 9.

CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE

Not applicable.

Item 9A.

CONTROLS AND PROCEDURES

Disclosure Controls and Procedures.

The Company maintains disclosure controls and procedures, which are designed to provide reasonable assurance that information required to be disclosed in the Company’s periodic SEC reports is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, and that such information is accumulated and communicated to its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.

We carried out an evaluation, under the supervision and with the participation of our principal executive officer and principal financial officer, of the effectiveness of the design and operation of our disclosure controls and procedures as of the end of the period covered by this report. Based on that evaluation, the Company’s principal executive officer and principal financial officer have concluded that, due to the material weakness described below, the Company’s disclosure controls and procedures were effective to provide reasonable assuranceineffective as of the end of the period covered by this report.

Notwithstanding the material weakness described below, management has concluded that information required to be disclosedour consolidated financial statements included in this Form 10-K for the fiscal year ended October 31, 2019 are fairly stated in all material respects in accordance with generally accepted accounting principles in the Company’s periodic SEC reports is recorded, processed, summarized and reported withinUnited States of America for each of the time periods specified in the SEC’s rules and forms,presented and that such information is accumulated and communicated to its principal executive officer and principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.they may be relied upon.

Management’s Annual Report on Internal Control Over Financial Reporting.

We, as members of management

Management of FuelCell Energy, Inc., and its subsidiaries (the “Company”), are responsible for establishing and maintaining adequate internal control over financial reporting. The Company’s internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles in the United States of America. Internal control over financial reporting includes those policies and procedures that:

Pertain to the maintenance of records that in reasonable detail accurately and fairly reflect the transactions and dispositions of the assets of the Company;

Provide reasonable assurance that transactions are recorded as necessary to permit preparation of financial statements in accordance with generally accepted accounting principles in the United States of America, and that receipts and expenditures of the Company are being made only in accordance with authorizations of management and directors of the Company; and

Provide reasonable assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition of the Company’s assets that could have a material effect on the financial statements.

Under the supervision and with the participation of management, including our principal executive and principal financial officers, we assessedevaluated the Company’s internal control over financial reporting as of October 31, 2018,2019, based on criteria for effective internal control over financial reporting established in the Internal Control — Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the Treadway Commission (“COSO”).  Based on this assessment, we havethat evaluation, management concluded that the Company’s internal control over financial reporting was not effective as of October 31, 2019 due to the material weakness in internal control over financial reporting described below.

A material weakness is a deficiency, or combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of our annual or interim financial statements will not be prevented or detected on a timely basis.


We previously disclosed in our Form 10-Qs for the quarters ended April 30, 2019 and July 31, 2019 that the Company maintained effectivedid not have resources to sufficiently address asset impairments on a timely basis or the accounting considerations and disclosures related to the Company’s amended credit facilities. As a result, we concluded that there was a material weakness in internal control over financial reporting, as we did not maintain effective controls over the accounting for and disclosures in the consolidated financial statements related to asset impairments and credit facilities.   This control deficiency has not been remediated as of October 31, 2018 based on2019 and the specified criteria.  The Company's independent registered publicCompany further identified that it did not have resources to sufficiently address certain other non-routine transactions and disclosures.

This material weakness resulted in material misstatements that were corrected in the consolidated financial statements prior to issuance.

Remediation plan for material weakness

Subsequent to the evaluation made in connection with filing our Form 10-Q for the quarter ended April 30, 2019, our management, with the oversight of the Audit and Finance Committee of the Board of Directors, began the process of remediating the material weakness.  Progress to date includes engagement of a third party resource to help evaluate the accounting firm, KPMG LLP, has issued an audit report onand disclosure for significant matters each quarter.  Management also plans to add additional experienced accounting staff. In addition, under the Company'soversight of the Audit and Finance Committee, management will continue to review and make necessary changes to the overall design of our internal control environment to improve the overall effectiveness of internal control over financial reporting.

We have made progress in accordance with our remediation plan and our goal is to remediate this material weakness in fiscal year 2020. However, the material weakness will not be considered remediated until the applicable controls operate for a sufficient period of time and management has concluded, through testing, that these controls are operating effectively. We are committed to continuing to improve our internal control processes and will continue to review, optimize and enhance our financial reporting which appears in Part II, Item 8 ofcontrols and procedures, however, there can be no assurance that this Form 10-K.will occur within 2020.


Changes in Internal Control Over Financial Reporting.

Our management has evaluated, with

Other than the participation of our principal executivematerial weakness and principal financial officers, whether anyremediation process discussed above, there have been no other changes in our internal control over financial reporting that occurred during our lastthe fourth quarter of fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report)2019 that have materially affected, or are reasonably likely to materially affect, our internal control over financial reporting. Based on the evaluation we conducted, our management has concluded that no such changes have occurred.

Item 9B.

OTHER INFORMATION

None.

Letter Agreement with FCE FuelCell Energy Ltd. (“FCE Ltd.”) and Enbridge Inc. (“Enbridge”)

On January 20, 2020, the Company, FCE Ltd. (one of the Company’s indirect subsidiaries), and Enbridge entered into a letter agreement (the “January 2020 Letter Agreement”), pursuant to which they agreed to amend the articles of FCE Ltd. (the “Articles”) relating to and setting forth the terms of the Class A Cumulative Redeemable Exchangeable Preferred Shares (the “Series 1 Preferred Shares”) as described below.  As of January 20, 2020, there were 1,000,000 Series 1 Preferred Shares of FCE Ltd. outstanding, all of which were held by Enbridge. The   Series 1 Preferred Shares were originally acquired by the Company as a result of a business combination in 2003. The Company guarantees the return of principal and dividend obligations of FCE Ltd. to Enbridge, as the holder of the Series 1 Preferred Shares.

Prior to the amendment of the Articles and the terms of the Series 1 Preferred Shares as described below, the terms of the Series 1 Preferred Shares required (i) annual dividend payments of Cdn. $500,000 and (ii) annual return of capital payments of Cdn. $750,000, to be made on a quarterly basis until December 31, 2020. Dividends accrued at a 1.25% quarterly rate on the unpaid principal balance, and additional dividends accrued on the cumulative unpaid dividends (inclusive of the Cdn. $12.5 million unpaid dividend balance as of March 31, 2011) at a rate of 1.25% compounded quarterly.  The aggregate amount of all accrued and unpaid dividends on the Series 1 Preferred Shares (Cdn. $21.1 million) and the balance of the principal redemption price with respect to all of the outstanding Series 1 Preferred Shares (Cdn. $4.4 million) was to be paid on or before December 31, 2020.  In addition, the holder of the Series 1 Preferred Shares had the right to exchange such shares for fully paid and non-assessable shares of common stock of


the Company at certain specified prices, and FCE Ltd. had the option of making dividend payments in the form of common stock of the Company or cash.

In the January 2020 Letter Agreement, the Company, FCE Ltd., and Enbridge agreed to amend the Articles of FCE Ltd. and the terms of the Series 1 Preferred Shares to: (i) remove the provisions of the Articles permitting or requiring the issuance of shares of the Company’s common stock in exchange for the Series 1 Preferred Shares or as payment of amounts due to the holders of the Series 1 Preferred Shares, (ii) remove certain provisions of the Articles relating to the redemption of the Series 1 Preferred Shares, (iii) increase the annual dividend rate, commencing on January 1, 2020, to 15%, (iv) extend the final payment date for all accrued and unpaid dividends and all return of capital payments (i.e., payments of the principal redemption price) from December 31, 2020 to December 31, 2021, (v) clarify when dividend and return of capital payments are to be made in the future and extend the quarterly dividend and return of capital payments through December 31, 2021 (which were previously to be paid each quarter through December 31, 2020), (vi) remove certain terms and provisions of the Articles that are no longer applicable, and (vii) make other conforming changes to the Articles.  In addition, the parties agreed to amend the Company’s guarantee in favor of Enbridge as necessary or as the parties may mutually agree, in either case, in order to be consistent with such amended Articles and to maintain the Company’s guarantee of FCE Ltd.’s obligations under the Series 1 Preferred Shares.

Accordingly, as amended, the terms of the Series 1 Preferred Shares require (i) annual dividend payments of Cdn. $500,000 and (ii) annual return of capital payments of Cdn. $750,000, to be made on a quarterly basis until December 31, 2021.  Commencing on January 1, 2020, dividends accrue at an annual rate of 15% on the principal redemption price with respect to the Series 1 Preferred Shares and any accrued and unpaid dividends on the Series 1 Preferred Shares. The aggregate amount of all accrued and unpaid dividends on the Series 1 Preferred Shares (estimated at Cdn. $26.5 million) and the balance of the principal redemption price with respect to all of the outstanding Series 1 Preferred Shares (estimated at Cdn. $3.5 million) is to be paid on or before December 31, 2021. Further, the holder of the Series 1 Preferred Shares no longer has the right to exchange such shares for shares of common stock of the Company, and FCE Ltd. no longer has the option of making dividend payments in shares of common stock of the Company.

The foregoing summary of the terms of the January 2020 Letter Agreement and the amendments to the terms of the Series 1 Preferred Shares is qualified in its entirety by reference to (i) the January 2020 Letter Agreement, a copy of which is attached as Exhibit 4.13 to this Annual Report on Form 10-K and incorporated herein by reference, and (ii) Schedule A setting forth the amended rights, privileges, restrictions and conditions of the Series 1 Preferred Shares of FCE Ltd., a copy of which is attached as Exhibit 4.14 to this Annual Report on Form 10-K and incorporated herein by reference.

Second Amendment to Orion Credit Agreement

On October 31, 2019, the Company and certain of its subsidiaries as guarantors entered into a Credit Agreement (the “Orion Credit Agreement”) with Orion Energy Partners Investment Agent, LLC, as Administrative Agent and Collateral Agent (the “Agent”), and its affiliates, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., and Orion Energy Credit Opportunities Fund II PV, L.P., as lenders, for a $200.0 million senior secured credit facility (the “Orion Facility”), structured as a delayed draw term loan, to be provided by the lenders, subject to certain lender approvals.  In conjunction with the closing of the Orion Facility, on October 31, 2019, the Company drew down $14.5 million.  On November 22, 2019, a second draw (the “Second Funding”) of $65.5 million, funded by Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II GPFA, L.P., Orion Energy Credit Opportunities Fund II PV, L.P., and Orion Energy Credit Opportunities FuelCell Co-Invest, L.P., was made.  In conjunction with the Second Funding, the Company, the Agent, and the other loan parties entered into the First Amendment to the Orion Credit Agreement, which required the Company to establish a $5.0 million debt reserve.

In connection with the January 2020 Letter Agreement among the Company, FCE Ltd. and Enbridge described above, on January 20, 2020, in order to obtain the lenders’ consent to the January 2020 Letter Agreement as required under the Orion Credit Agreement, the Company, the Agent, and the other loan parties entered into the Second Amendment to the Orion Credit Agreement (the “Second Orion Amendment”), which adds a new affirmative covenant to the Orion Credit Agreement that obligates the Company to, and to cause FCE Ltd. to, on or prior to November 1, 2021, either (i) pay and satisfy in full all of their respective obligations in respect of, and fully redeem and cancel, all of the Series 1 Preferred Shares of FCE Ltd., or (ii) deposit in a newly created account of FCE Ltd. or the Company cash in an


amount sufficient to pay and satisfy in full all of their respective obligations in respect of, and to effect a redemption and cancellation in full of, all of the Series 1 Preferred Shares of FCE Ltd. The Second Orion Amendment also provides that the Articles setting forth the modified terms of the Series 1 Preferred Shares will be considered a “Material Agreement” under the Orion Credit Agreement. Under the Second Orion Amendment, a failure to satisfy this new affirmative covenant or to otherwise comply with the terms of the Series 1 Preferred Shares will constitute an event of default under the Orion Credit Agreement, which could result in the acceleration of any amounts outstanding under the Orion Credit Agreement.

The foregoing summary of the terms of Second Orion Amendment is qualified in its entirety by reference to the Second Orion Amendment, a copy of which is attached as Exhibit 10.117 to this Annual Report on Form 10-K and incorporated herein by reference.

 

 


PART III

Item 10.

DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE

The information required by this Item 10, with respect to our executive officers, is included in Part I of the Annual Report on Form 10-K. The other information required by this Item 10 is incorporated by reference to the Company’s 20192020 Proxy Statement to be filed with the SEC within 120 days fromafter fiscal year end.

Our board of directors has adopted a Code of Ethics (the “Code”), which applies to the board of directors, named executive officers, and all employees. The Code provides a statement of certain fundamental principles and key policies and procedures that govern the conduct of our business. The Code covers all major areas of professional conduct, including employment policies, conflicts of interest, intellectual property and the protection of confidential information, as well as strict adherence to all laws and regulations applicable to the conduct of our business. As required by the Sarbanes-Oxley Act of 2002, our Audit and Finance Committee has procedures to receive, retain, investigate and resolve complaints received regarding our accounting, internal accounting controls or auditing matters and to allow for the confidential and anonymous submission by employees of concerns regarding questionable accounting or auditing matters. The Code can be found in the Corporate Governance sub-section of the section entitled “Investors” on our website at www.fuelcellenergy.com. We intend to disclose any changes in, or waivers from, the Code by posting such information on the same website or by filing a Current Report on Form 8-K, in each case to the extent such disclosure is required by rules of the SEC or Nasdaq.

Item 11.

EXECUTIVE COMPENSATION

Information required under this Item is incorporated by reference to the Company’s 20192020 Proxy Statement to be filed with the SEC within 120 days fromafter fiscal year end.

Item 12.

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDER MATTERS

Information required under this Item is incorporated by reference to the Company’s 20192020 Proxy Statement to be filed with the SEC within 120 days fromafter fiscal year end.



Equity Compensation Plan Information

The following table sets forth information with respect to the Company’s equity compensation plans as of the end of the fiscal year ended October 31, 2018.2019.

 

Plan Category

 

Number of Common Shares to be issued upon exercise of outstanding options and rights

 

 

Weighted-average exercise price of outstanding options and rights

 

 

Number of securities remaining available for future issuance under equity compensation plans

 

 

Number of Common

Shares to be issued

upon exercise of

outstanding

options and rights

 

 

Weighted-average

exercise price of

outstanding

options and rights

 

 

Number of securities

remaining available

for future issuance

under equity

compensation

plans

 

Equity compensation plans approved by security holders:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Equity incentive plans (1)

 

 

323,486

 

 

$

10.34

 

 

 

1,424,967

 

 

 

24,927

 

 

$

104.73

 

 

 

65,468

 

Employee stock purchase plan

 

 

 

 

 

 

 

 

500,000

 

 

 

 

 

 

 

 

 

34,539

 

Total

 

 

323,486

 

 

$

10.34

 

 

 

1,924,967

 

 

 

24,927

 

 

$

104.73

 

 

 

100,007

 

 

(1)

Includes the Company’s 2018 Omnibus Incentive Plan.

Item 13.

CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE

Information required under this Item is incorporated by reference to the Company’s 20192020 Proxy Statement to be filed with the SEC within 120 days fromafter fiscal year end.


Item 14.

PRINCIPAL ACCOUNTINGACCOUNTING FEES AND SERVICES

Information required under this Item is incorporated by reference to the Company’s 20192020 Proxy Statement to be filed with the SEC within 120 days fromafter fiscal year end.

 

PART IV

Item 15.

EXHIBITS AND FINANCIAL STATEMENT SCHEDULES

The following documents are filed as part of this report:

1

Financial Statements — See Index to Consolidated Financial Statements at Item 8 of the Annual Report on Form 10-K.

2

Financial Statement Schedules — Supplemental schedules are not provided because of the absence of conditions under which they are required or because the required information is given in the financial statements or notes thereto.

3

Exhibits — The following exhibits are filed as part of, or incorporated by reference into, this Annual Report on Form 10-K.


EXHIBIT INDEX

 

Exhibit No.

 

Description

  

3.1

 

Certificate of Incorporation of the Company, as amended, July 12, 1999 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated September 21, 1999).

 

 

 

  3.2

 

Certificate of Amendment of the Certificate of Incorporation of the Company, dated October 31, 2003November 21, 2000 (incorporated by reference to Exhibit 3.113.3 to the Company’s CurrentAnnual Report on Form 8-K10-K dated November 3, 2003)January 12, 2017).

 

 

 

  3.3

 

Certificate of Amendment of the Certificate of Incorporation of the Company, dated November 21, 2000October 31, 2003 (incorporated by reference to Exhibit 3.33.11 to the Company’s AnnualCurrent Report on Form 10-K8-K dated January 12, 2017)November 3, 2003).

 

 

 

  3.4

 

Amended Certificate of Designation of Series B Cumulative Convertible Perpetual Preferred Stock, dated March 14, 2005 (incorporated by reference to Exhibit 3.4 to the Company’s Annual Report on Form 10-K dated January 12, 2017).

 

 

 

  3.5

 

Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 8, 2011 (incorporated by reference to Exhibit 3.5 to the Company’s Annual Report on Form 10-K dated January 12, 2017).

 

 

 

  3.6

 

Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 5, 2012(incorporated2012 (incorporated by reference to Exhibit 3.6 to the Company’s Annual Report on Form 10-K dated January 12, 2017).

 

 

 

  3.7

 

Certificate of Amendment of the Certificate of Incorporation of the Company, dated December 3, 2015 (incorporated by reference to Exhibit 3.1 to the Company's Current Report on Form 8-K dated December 3, 2015).

 

 

 

  3.8

 

Amended and Restated By-Laws of the Company, dated December 15, 2016 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K dated December 15, 2016).

    3.9

Certificate of Amendment of the Certificate of Incorporation of the Company, dated April 18, 2016 (incorporated by reference to Exhibit 3.9 to the Company’s Quarterly Report on Form 10-Q for the period ending April 30, 2016).

 

 

 

  3.103.9

 

Certificate of Amendment of the Certificate of Incorporation of the Registrant,Company, dated April 7, 2017 (incorporated by reference to Exhibit 3.10 to the Company’s Quarterly Report on Form 10-Q for the period ending April 30, 2017).

 

 

 

  3.113.10

 

Certificate of Amendment of the Certificate of Incorporation of the Company, dated December 14, 2017 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated December 14, 2017).

  3.11

Certificate of Amendment of the Certificate of Incorporation of FuelCell Energy, Inc., dated May 8, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 8, 2019).

  3.12

Amended and Restated By-Laws of the Company, dated December 15, 2016 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K dated December 15, 2016).

 

 

 

  4.1

 

Specimen of Common Share Certificate (incorporated by reference to Exhibit 4 to the Company’s Annual Report on Form 10-K for fiscal year ended October 31, 1999).

 

 

 

  4.2

 

Schedule A to Articles of Amendment of FuelCell Energy, Ltd., setting forth the rights, privileges, restrictions and conditions of Class A Cumulative Redeemable Exchangeable Preferred SharesStock (incorporated by reference to exhibit of the same number contained in the Company’s Quarterly Report on Form 10-Q for the period ended January 31, 2009).


Exhibit No.

Description

  4.3

Letter Agreement, dated March 31, 2011, and Guarantee, dated April 1, 2011, by and between the Company and Enbridge, Inc., and Revised Special Rights and Restrictions attributable to the Class A Preferred Stock of FuelCell Energy, Ltd. (incorporated by reference to Exhibits 4.1, 4.2 and 4.3 to the Company’s Current Report on Form 8-K dated March 31, 2011).

 

 

 

  4.34.4

 

Certificate of Designation for the Company’s 5% Series B Cumulative Convertible Perpetual Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report Form 8-K, dated November 22, 2004).

 

 

 


Exhibit No.

Description

  

    4.44.5

 

Certificate of Designations for the Company’s Series C Convertible Preferred Stock (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K, dated September 5, 2017).

 

 

 

  4.54.6

 

Certificate of Designations, Preferences and Rights offor the Company’s Series D Convertible Preferred Stock of FuelCell Energy, Inc. (Incorporated herein(incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).

 

 

 

  4.64.7

 

Specimen Series D Convertible Preferred Stock Certificate. (Incorporated herein(incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).

  4.8

Form of Series A Warrants to purchase common stock (incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated July 6, 2016).

  4.9

Form of Series B Warrants to purchase common stock (incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K dated July 6, 2016).

  4.10

Form of Series C Warrants to purchase common stock (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated April 27, 2017).

  4.11

Form of Series D Warrants to purchase common stock (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K dated April 27, 2017).

  4.12

Form of Warrant to purchase common stock (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  4.13

Letter Agreement, dated January 20, 2020, among FuelCell Energy, Inc., FCE FuelCell Energy Ltd., and Enbridge Inc. relating to the amendment of the terms of the Class A Cumulative Preferred Stock of FCE FuelCell Energy Ltd.

  4.14

Schedule A setting forth the amended rights, privileges, restrictions and conditions of the Class A Cumulative Preferred Stock of FCE FuelCell Energy Ltd.

  4.15

Description of Securities Registered Under Section 12 of the Securities Exchange Act of 1934, as amended.

 

 

 

  10.1

 

Purchase and Sale Agreement between Groton Fuel Cell 1, LLC and PNC Energy Capital LLC, dated October 31, 2016 (incorporated by reference to Exhibit 10.1 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2016).

 

 

 

  10.2

 

Lease Agreement between Groton Fuel Cell 1, LLC and PNC Energy Capital LLC, dated October 31, 2016 (incorporated by reference to Exhibit 10.2 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2016).

 

 

 

  10.3

 

Pledge Agreement between FuelCell Energy Finance, LLC and PNC Energy Capital LLC, dated October 31, 2016 (incorporated by reference to Exhibit 10.3 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2016).

 

 

 

  10.4

 

**Alliance Agreement between FuelCell Energy, Inc. and POSCO Energy, dated as of February 7, 2007 (incorporated by reference to Exhibit 10.1 to the Company’s Form 10-Q/A for the period ended January 31, 2009).


Exhibit No.

Description

 

 

 

  10.5

 

**Technology Transfer, License and Distribution Agreement between FuelCell Energy, Inc. and POSCO Energy, dated as of February 7, 2007 (incorporated by reference to Exhibit 10.2 to the Company’s Form 10-Q/A for the period ended January 31, 2009).

 

 

 

  10.6

 

Loan Agreement, dated April 29, 2008, between the Company and the Connecticut Development Authority (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the period ended January 31, 2009).

 

 

 

  10.7

 

**Stack Technology Transfer and License Agreement dated as of October 27, 2009, by and between FuelCell Energy, Inc. and POSCO Energy (incorporated by reference to Exhibit 10.1 of the Company’s Current Report Form 8-K, dated October 27, 2009).

 

 

 

  10.3610.8

 

*The FuelCell Energy, Inc. Section 423 Amended and Restated Stock Purchase Plan (incorporated by reference to Exhibit 10.36 to the Company's Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.54

*FuelCell Energy, Inc. Amended and Restated 1998 Equity Incentive Plan (incorporated by reference to Exhibit 10.54 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2015).

  10.5510.9

 

Lease agreement, dated March 8, 2000, between the Company and Technology Park Associates, L.L.C. (incorporated by reference to Exhibit 10.55 to the Company’s Quarterly Report on Form 10-Q for the period ended April 30, 2000).

 

 

 

  10.5610.10

 

Security agreement, dated June 30, 2000, between the Company and the Connecticut Development Authority (incorporated by reference to Exhibit 10.56 to the Company’s Quarterly Report on Form 10-Q for the period ended July 31, 2000).

 

 

 

  10.5710.11

 

Loan agreement, dated June 30, 2000, between the Company and the Connecticut Development Authority (incorporated by reference to Exhibit 10.57 to the Company’s Quarterly Report on Form 10-Q for the period ended July 31, 2000).

 

 

 


Exhibit No.  10.12

 

Description*FuelCell Energy, Inc. Amended and Restated 1998 Equity Incentive Plan (incorporated by reference to Exhibit 10.54 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.58  10.13

 

*FuelCell Energy, Inc. 2006 Equity Incentive Plan (incorporated by reference to Exhibit 10.58 to the Company's Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.5910.14

 

*FuelCell Energy, Inc. Amended and Restated 2010 Equity Incentive Plan (incorporated by reference to Exhibit 10.59 to the Company's Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.6010.15

 

Letter agreement, dated September 28, 2015, between the Company and Technology Park Associates, L.L.C. exercising the extension option per the terms of the Lease Agreement, dated March 8, 2000, between the Company and Technology Park Associates, L.L.C. (incorporated by reference to Exhibit 10.60 to the Company's Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.6310.16

 

Intracreditor Subordination and Confirmation Agreement made and effective as of January 4, 2011 by JPMorgan Chase Bank, N.A. (incorporated by reference to Exhibit 10.63 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2010).

 

 

 

  10.6510.17

 

*Employment Agreement, dated January 28, 2010, between the Company and Arthur Bottone, Senior Vice President, Chief Commercial Officer (incorporated by reference to Exhibit 10.65 to the Company’s Annual Report on Form 10-K for the period ended October 31, 2010).

 

 

 

  10.6610.18

*Employment Agreement, dated and effective as of February 8, 2011, between the Company and Arthur Bottone, President and Chief Executive Officer (incorporated by reference to Exhibit 10.1 to the Company’s Current Quarterly Report on Form 10-Q for the period ended April 30, 2019).

  10.19

 

*First Amendment to Employment Agreement, dated December 19, 2011 and effective as of January 1, 2012 between the Company and Arthur Bottone, President and Chief Executive Officer (incorporated by reference to Exhibit 10.3 of the Company’s Current Report Form 8-K dated December 19, 2011).


Exhibit No.

Description

 

 

 

  10.6710.20

 

*Employment Agreement, dated March 21, 2012 and effective as of January 1, 2012 between the Company and Anthony Rauseo, Chief Operating Officer (incorporated by reference to the Exhibit 10.67 to the Company’s Current Report Form 8-K, dated March 21, 2012).

 

 

 

  10.6810.21

 

*Employment Agreement, dated March 21, 2012 and effective as of January 1, 2012 between the Company and Michael Bishop, Chief Financial Officer (incorporated by reference to the Exhibit 10.68 to the Company's Current Report Form 8-K, dated March 21, 2012).

 

 

 

  10.69

Letter Agreement, dated March 31, 2011, and Guarantee, dated April 1, 2011, by and between the Company and Enbridge, Inc., and Revised Special Rights and Restrictions attributable to the Class A Preferred Stock of FuelCell Energy, Ltd. for each (incorporated by reference to Exhibits 4.1, 4.2 and 4.3 to the Company’s Current Report on Form 8-K dated March 31, 2011).

  10.7310.22

 

Cell Technology Transfer and License Agreement dated October 31, 2012 by and between the Company and POSCO Energy, Co., LTDLtd. (incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K/A dated as of October 31, 2012 and filed on January 7, 2013).

 

 

 

  10.7410.23

 

Amendment to Technology Transfer Distribution and Licensing Agreement dated as of February 7, 2007 and the Stack Technology Transfer License Agreement dated as of October 27, 2009, each by and between the Company and POSCO Energy, Co., LTDLtd. (incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated as of October 31, 2012).

 

 

 

  10.7610.24

 

Securities Purchase Agreement, dated April 30, 2012, by and between the Company and POSCO Energy Co., Ltd,Ltd., dated April 30, 2012 (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated April 30, 2012).

 

 

 

  10.8010.25

 

Loan Agreement, dated as of March 5, 2013, between Clean Energy Finance and Investment Authority, as Lender, and the Company, as Borrower (incorporated by reference to Exhibit 10.69 to the Company’s Quarterly Report on Form 10-Q for the period ended January 31, 2013).

 

 

 

  10.8110.26

 

Security Agreement, dated March 5, 2013, by the Company in favor of the Clean Energy Finance and Investment Authority (incorporated by reference to Exhibit 10.70 to the Company’s Quarterly Report on Form 10-Q for the quarter ended January 31, 2013).

 

 

 


Exhibit No.

Description

  

  10.8210.27

 

Securities Purchase Agreement, dated July 30, 2014, between the Company and NRG Energy, Inc. (incorporated by reference to Exhibit 10.82 to the Company's Quarterly Report on Form 10-Q for the quarter ended July 31, 2014).

 

 

 

  10.8310.28

 

Loan Agreement, dated July 30, 2014, between FuelCell Energy Finance, LLC and NRG Energy, Inc. (incorporated by reference to Exhibit 10.83 to the Company's Quarterly Report on Form 10-Q for the quarter ended July 31, 2014).

 

 

 

  10.8410.29

 

Assistance Agreement, dated November 19, 2015, by and between the State of Connecticut Acting by the Department of Economic Community and Development and the Company (incorporated by reference to Exhibit 10.84 to the Company's Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.8510.30

 

Phase 1 Promissory Note, dated November 19, 2015, between the Company and the State of Connecticut Acting by and through the Department of Economic Community and Development (incorporated by reference to Exhibit 10.85 to the Company's Annual Report on Form 10-K for the period ended October 31, 2015).

 

 

 

  10.8610.31

 

SecuritySecurities Purchase Agreement, dated July 6, 2016, between the Company and investors as listed on a Schedule of Buyers contained within the Security Purchase Agreement (incorporated by reference to Exhibit 10.2 to the Company's Current Report on Form 8-K dated July 6, 2016).

 

 

 

  10.87

Form of Series A Warrants to purchase common stock (incorporated by reference to Exhibit 10.3 to the Company's Current Report on Form 8-K dated July 6, 2016).

  10.88

Form of Series B Warrants to purchase common stock (incorporated by reference to Exhibit 10.4 to the Company's Current Report on Form 8-K dated July 6, 2016).

  10.8910.32

 

Amendment No. 1 to Securities Purchase Agreement, dated July 8, 2016, between the Company and investors as listed on a Schedule of Buyers contained within the Securities Purchase Agreement (incorporated by reference to Exhibit 10.5 to the Company's Current Report on Form 8-K dated July 12, 2016).

 

 

 

  10.9010.33

 

Amendment to Alliance Agreement, dated as of October 10, 2016, by and between the Company and POSCO Energy Co., Ltd. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated October 10, 2016).


Exhibit No.

Description

 

 

 

  10.9110.34

 

Amendment to Technology Transfer, Distribution and Licensing Agreement, dated as of October 10, 2016, by and between the Company and POSCO Energy Co., Ltd. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated October 10, 2016).

 

 

 

  10.9210.35

 

Amendment to Stack Technology Transfer and License Agreement, dated as of October 10, 2016, by and between the Company and POSCO Energy Co., Ltd. (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated October 10, 2016).

 

 

 

  10.9310.36

 

Memorandum of Understanding for Market Transition dated as of March 17, 2017, by and between the Company and POSCO Energy Co., Ltd. (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated March 17, 2017).

 

 

 

  10.9410.37

 

First Amendment to Assistance Agreement, dated as of April 3, 2017, and approved by the State of Connecticut, Office of the Attorney General on April 17, 2017 (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K dated April 17, 2017).

 

 

 

  10.9510.38

 

Form of Series C Warrants to purchase common stock (incorporated by reference to Exhibit 4.1 to the Company's Current Report on Form 8-K dated April 27, 2017).

  10.96

Form of Series D Warrants to purchase common stock (incorporated by reference to Exhibit 4.2 to the Company's Current Report on Form 8-K dated April 27, 2017).


Exhibit No.

Description

  10.97

Underwriting Agreement, dated as of April 28, 2017, between the Company and Oppenheimer & Co. Inc., as Representative of the several Underwriters set forth therein (incorporated by reference to Exhibit 1.1 to the Company’s Current Report on Form 8-K dated April 27, 2017).

  10.98

Form of Leak-Out Agreement (incorporated by reference to Exhibit 4.3 to the Company’s Current Report on Form 8-K dated April 27, 2017).

  10.99

*Employment Agreement, dated April 7, 2017, between the Company and Jennifer D. Arasimowicz, Senior Vice President, General Counsel and Corporate Secretary (incorporated by reference to Exhibit 10.90 to the Company’s Quarterly Report on Form 10-Q for the period ending April 30, 2017).

 

 

 

  10.10010.39

 

UnderwritingLoan and Security Agreement, dated as of September 5, 2017, byApril 14, 2016, among FuelCell Energy, Inc. and between the Company and Oppenheimer & Co.Hercules Capital, Inc. (incorporated by reference to Exhibit 1.110.1 to the Company’s Current Report on Form 8-K dated September 5, 2017)April 14, 2016).

 

 

 

  10.10110.40

 

First Amendment to Loan and Security Agreement, dated September 5, 2017, by and among the Company, Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated September 5, 2017).

 

 

 

  10.10210.41

 

Second Amendment to Loan and Security Agreement, dated October 27, 2017, by and among the Company, Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated October 27, 2017).

 

 

 

  10.10310.42

 

Third Amendment to Loan and Security Agreement, dated March 28, 2018, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated March 28, 2018).

 

 

 

  10.10410.43

 

FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (incorporated by reference to Annex A to the FuelCell Energy, Inc. Definitive Proxy Statement filed with the Securities and Exchange Commission on Schedule 14A on February 16, 2018).

 

 

 

  10.10510.44

 

Form of Restricted Stock Award Agreement (U.S. Employees) (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K dated April 5, 2018).

 

 

 

  10.10610.45

 

Form of Restricted Stock Unit Award Agreement (U.S. Employees) (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K dated April 5, 2018).

 

 

 

  10.107

Form of Option Award Agreement (Non-Employee Directors) (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated April 5, 2018).

  10.108

FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan (incorporated by reference to Annex B to the FuelCell Energy, Inc. Definitive Proxy Statement filed with the Securities and Exchange Commission on Schedule 14A on February 16, 2018).

  10.109

At Market Issuance Sales Agreement among FuelCell Energy, Inc., B. Riley FBR, Inc. and Oppenheimer & Co. Inc., dated June 13, 2018. (Incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated June 13, 2018).

  10.110

Fourth Amendment to Loan and Security Agreement, dated August 29, 2018, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC. (Incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).


Exhibit No.

Description

  10.111

Loan and Security Agreement, dated April 14, 2016, among FuelCell Energy, Inc. and Hercules Capital, Inc. (Incorporated herein by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated April 14, 2016).

  10.112

Membership Interest Purchase Agreement, dated October 31, 2018, by and between FuelCell Energy Finance, LLC and Dominion Generation, Inc.

  10.11310.46

 

Form of Restricted Stock Unit Award Agreement (Non-Employee Directors).(incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated November 8, 2018).

 

 

 

  10.11410.47

Form of Option Award Agreement (Non-Employee Directors) (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K dated April 5, 2018).

  10.48

FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan (incorporated by reference to Annex B to the FuelCell Energy, Inc. Definitive Proxy Statement filed with the Securities and Exchange Commission on Schedule 14A on February 16, 2018).


Exhibit No.

Description

  10.49

At Market Issuance Sales Agreement among FuelCell Energy, Inc., B. Riley FBR, Inc. and Oppenheimer & Co. Inc., dated June 13, 2018. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated June 13, 2018).

  10.50

Fourth Amendment to Loan and Security Agreement, dated August 29, 2018, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K dated August 27, 2018).

  10.51

Membership Interest Purchase Agreement, dated October 31, 2018, by and between FuelCell Energy Finance, LLC and Dominion Generation, Inc. (incorporated by reference to Exhibit 10.112 to the Company’s Annual Report on Form 10-K filed on January 10, 2019).

  10.52

 

First Amendment to Loan Agreement, dated as of April 18, 2016, by and among FuelCell Energy Finance, LLC, Riverside FuelCell, LLC and NRG Energy, Inc. (incorporated by reference to Exhibit 10.114 to the Company’s Annual Report on Form 10-K filed on January 10, 2019).

 

 

 

  10.11510.53

 

Second Amendment to Loan and Security Agreement, dated as of December 13, 2018, by and among FuelCell Energy Finance, LLC and NRG Energy, Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K/A filed on December 20, 2018).

 

 

 

  10.11610.54

 

Construction Loan Agreement, dated December 21, 2018, by and among FuelCell Energy Finance II, LLC, certain of its subsidiaries as the Project Company Guarantors and Generate Lending, LLC. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 26, 2018).

 

 

 

  10.11710.55

 

Right to Finance Agreement, dated December 21, 2018, by and between FuelCell Energy, Inc., FuelCell Energy Finance II, LLC and Generate Lending, LLC. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on December 26, 2018).

 

 

 

  10.11810.56

 

Guaranty Agreement, dated December 21, 2018, by FuelCell Energy, Inc. in favor of Generate Lending, LLC. (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on December 26, 2018).

 

 

 

  10.11910.57

 

Fifth Amendment to Loan and Security Agreement, dated December 19, 2018, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on December 26, 2018).

 

 

 

  10.12010.58

 

Securities Purchase Agreement, dated June 9, 2009, by and between the Company and POSCO Power (incorporated by reference to Exhibit 4.01 to the Company's Current Report on Form 8-K dated October 27, 2009).

  10.59

Second Amendment to Assistance Agreement, dated as of January 24, 2019, and approved by the State of Connecticut, Office of the Attorney General on January 28, 2019 (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 5, 2019).

  10.60

Waiver Agreement, dated February 21, 2019, by and between FuelCell Energy, Inc. and the Sole Holder of Series C Convertible Preferred Stock (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on February 21, 2019).

  10.61

Exchange Agreement, dated February 21, 2019, by and between FuelCell Energy, Inc. and the Holder of the Series A Warrant to Purchase Common Stock, issued on July 12, 2016 (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on February 21, 2019).

  10.62

Form of Consent and Waiver, dated February 21, 2019, by and between FuelCell Energy, Inc. and each Holder of Series D Convertible Preferred Stock (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on February 21, 2019).


Exhibit No.

Description

  10.63

Construction Loan Agreement, dated as of February 28, 2019, by and between Groton Station Fuel Cell, LLC and Fifth Third Bank (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on March 5, 2019).

  10.64

Guaranty Agreement, dated as of February 28, 2019, by FuelCell Energy, Inc. in favor of Fifth Third Bank (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on March 5, 2019).

  10.65

Sixth Amendment to Loan and Security Agreement, dated February 28, 2019 and effective as of February 22, 2019, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on March 5, 2019).

  10.66

Seventh Amendment to Loan and Security Agreement, dated March 29, 2019, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on April 3, 2019).

  10.67

Third Amendment to Loan Agreement, dated as of March 29, 2019, by and among FuelCell Energy Finance, LLC, Central CA Fuel Cell 2, LLC, and NRG Energy, Inc. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on April 3, 2019).

  10.68

Amendment to Membership Interest Purchase Agreement dated as of January 15, 2019 between Dominion Generation, Inc. and FuelCell Energy Finance, LLC.

  10.69

Second Amendment to Membership Interest Purchase Agreement dated as of May 9, 2019 between Dominion Generation, Inc. and FuelCell Energy Finance, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.70

Credit Agreement, dated as of May 9, 2019 among Dominion Bridgeport Fuel Cell, LLC, as Borrower, Liberty Bank, as Administrative Agent and Co-Lead Arranger and Fifth Third Bank, as Co-Lead Arranger, the Lenders (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.71

$12,500,000 Promissory Note from Dominion Bridgeport Fuel Cell, LLC for the benefit of Liberty Bank (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.72

$12,500,000 Promissory Note from Dominion Bridgeport Fuel Cell, LLC for the benefit of Fifth Third Bank  (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.73

Security Agreement dated as of May 9, 2019 by Dominion Bridgeport Fuel Cell, LLC in favor of Liberty Bank, as Administrative Agent (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.74

Pledge and Security Agreement dated as of May 9, 2019 by FuelCell Energy Finance, LLC for the benefit of Liberty Bank, as Administrative Agent (incorporated by reference to Exhibit 10.6 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.75

Credit Agreement, dated as of May 9, 2019 among Dominion Bridgeport Fuel Cell, LLC, as Borrower, and Connecticut Green Bank, as Administrative Agent and Collateral Agent, the Lenders (incorporated by reference to Exhibit 10.7 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.76

$6,026,165.34 Promissory Note from Dominion Bridgeport Fuel Cell, LLC for the benefit of Connecticut Green Bank (incorporated by reference to Exhibit 10.8 to the Company’s Current Report on Form 8-K filed on May 14, 2019).


Exhibit No.

Description

  10.77

Security Agreement dated as of May 9, 2019 by Dominion Bridgeport Fuel Cell, LLC in favor of Connecticut Green Bank, as Administrative Agent. (incorporated by reference to Exhibit 10.9 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.78

Pledge and Security Agreement dated as of May 9, 2019 by FuelCell Energy Finance, LLC for the benefit of Connecticut Green Bank, as Administrative Agent (incorporated by reference to Exhibit 10.10 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.79

Eighth Amendment to Loan and Security Agreement, dated May 8, 2019, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.11 to the Company’s Current Report on Form 8-K filed on May 14, 2019).

  10.80

International Swap Dealers Association, Inc. Master Agreement dated as of May 16, 2019 between Fifth Third Financial Risk Solutions, a division of Fifth Third Bank, and Bridgeport Fuel Cell, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 22, 2019).

  10.81

Schedule to the 1992 Master Agreement dated as of May 16, 2019 between Fifth Third Risk Solutions, a division of Fifth Third Bank, and Bridgeport Fuel Cell, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on May 22, 2019).

  10.82

License Agreement, effective as of June 11, 2019, between ExxonMobil Research and Engineering Company and FuelCell Energy, Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on June 12, 2019).

  10.83

Ninth Amendment to Loan and Security Agreement, dated June 11, 2019, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on June 12, 2019).

  10.84

Engagement Letter, dated and effective as of June 2, 2019, between the Company and Huron Consulting Services LLC (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 30, 2019).

  10.85

Fourth Amendment to Loan Agreement, dated as of June 13, 2019, by and among FuelCell Energy Finance, LLC, Central CA Fuel Cell 2, LLC, and NRG Energy, Inc. (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q for the quarter ended April 30, 2019).

  10.86

First Amendment to Construction Loan Agreement dated as of June 28, 2019 by and among FuelCell Energy Finance II, LLC, the Initial Project Company Guarantors party thereto, and Generate Lending, LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 3, 2019).

  10.87

First Amendment to Right to Finance Agreement dated as of June 28, 2019, by and among FuelCell Energy, Inc., FuelCell Energy Finance II, LLC and Generate Lending, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on July 3, 2019).

  10.88

Fifth Amendment to Loan Agreement, dated as of July 11, 2019, by and among FuelCell Energy Finance, LLC, Central CA Fuel Cell 2, LLC, and NRG Energy, Inc. (incorporated by reference to Exhibit 10.1 to the  Company’s Current Report on Form 8-K filed on July 12, 2019).


Exhibit No.

Description

  10.89

Tenth Amendment to Loan and Security Agreement, dated July 24, 2019, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 25, 2019).

  10.90

*Employment Agreement, dated as of July 30, 2019, by and between FuelCell Energy, Inc. and Michael Lisowski (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on July 30, 2019).

  10.91

*Employment Agreement, dated as of July 30, 2019, by and between FuelCell Energy, Inc. and Anthony Leo (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on July 30, 2019).

  10.92

*Summary of Cash Incentive Plan of FuelCell Energy, Inc. (incorporated by reference to Exhibit 10.30 to the Company’s Form 10-Q for the quarter ended July 31, 2019).

  10.93

*Form of Letter Agreement Issued to Employees Under Cash Incentive Plan of FuelCell Energy, Inc. (incorporated by reference to Exhibit 10.30 to the Company’s Form 10-Q for the quarter ended July 31, 2019).

  10.94

Sixth Amendment to Loan Agreement, dated as of August 8, 2019, by and among FuelCell Energy Finance, LLC, Central CA Fuel Cell 2, LLC, and NRG Energy, Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 13, 2019).

  10.95

Second Amendment to Construction Loan Agreement, dated as of August 13, 2019, by and among FuelCell Energy Finance II, LLC, the Initial Project Company Guarantors party thereto and Generate Lending, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on August 13, 2019).

  10.96

Second Amendment to Right to Finance Agreement, dated as of August 13, 2019 by and between FuelCell Energy, Inc., FuelCell Energy Finance II, LLC and Generate Lending, LLC (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on August 13, 2019).

  10.97

Amendment No. 1 to Construction Loan Agreement, dated as of August 13, 2019, by and between Groton Station Fuel Cell, LLC and Fifth Third Bank (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on August 13, 2019).

  10.98

Amendment to Engagement Letter, dated August 19, 2019 and effective as of August 26, 2019, between FuelCell Energy, Inc. and Huron Consulting Services LLC (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on August 20, 2019).

  10.99

*Employment Agreement, effective as of August 26, 2019, by and between FuelCell Energy, Inc. and Jason B. Few. (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on August 20, 2019).

  10.100

Seventh Amendment to Loan Agreement, dated as of September 30, 2019, by and between FuelCell Energy Finance, LLC, Central CA Fuel Cell 2, LLC, and NRG Energy, Inc. . (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on October 2, 2019).

  10.101

Third Amendment to Construction Loan Agreement, dated as of September 30, 2019, by and between FuelCell Energy Finance II, LLC, the Initial Project Company Guarantors party thereto and Generate Lending, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on October 2, 2019).

  10.102

Third Amendment to Right to Finance Agreement, dated as of September 30, 2019 by and between FuelCell Energy, Inc., FuelCell Energy Finance II, LLC and Generate Lending, LLC (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on October 2, 2019).


Exhibit No.

Description

  10.103

Letter Agreement regarding Payoff of Loan and Security Agreement, dated September 30, 2019, by and among FuelCell Energy, Inc., Versa Power Systems, Inc., Versa Power Systems Ltd., Hercules Capital, Inc. and Hercules Funding II, LLC (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on October 2, 2019).

  10.104

At Market Issue Sales Agreement, effective October 4, 2019, by and between FuelCell Energy, Inc. and B. Riley FBR, Inc. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on October 4, 2019).

  10.105

Amendment No. 2 to Construction Loan Agreement, dated as of October 21, 2019, by and between Groton Station Fuel Cell, LLC and Fifth Third Bank (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on October 25, 2019).

  10.106

Joint Development Agreement, effective October 31, 2019, by and between FuelCell Energy, Inc. and ExxonMobil Research and Engineering Company. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.107

Credit Agreement, dated as of October 31, 2019, by and between FuelCell Energy, Inc., the Guarantors from time to time party thereto, the Lenders and Orion Energy Partners Investment Agent, LLC (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.108

Pledge and Security Agreement, dated as of October 31, 2019, by and between FuelCell Energy, Inc., the Guarantors from time to time party thereto, the Lenders and Orion Energy Partners Investment Agent, LLC (incorporated by reference to Exhibit 10.3 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.109

Loan Discount Letter, dated as of October 31, 2019, by and between FuelCell Energy, Inc. and Orion Energy Partners Investment Agent, LLC (incorporated by reference to Exhibit 10.4 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.110

Agent Reimbursement Letter, dated as of October 31, 2019, by and between FuelCell Energy, Inc. and Orion Energy Partners Investment Agent, LLC (incorporated by reference to Exhibit 10.5 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.111

Observer Right Agreement, dated as of October 31, 2019, by and between FuelCell Energy, Inc., the Guarantors from time to time party thereto, Orion Energy Credit Opportunities Fund II, L.P., Orion Energy Credit Opportunities Fund II PV, L.P. and Orion Energy Credit Opportunities Fund II GPFA, L.P. (incorporated by reference to Exhibit 10.7 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.112

Payoff Letter, dated as of October 31, 2019, by and between FuelCell Energy Finance, LLC and NRG Energy, Inc. (incorporated by reference to Exhibit 10.8 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.113

Payoff Letter, dated as of October 30, 2019, by and between FuelCell Energy Finance II, LLC and Generate Lending, LLC (incorporated by reference to Exhibit 10.9 to the Company’s Current Report on Form 8-K filed on November 6, 2019).

  10.114

First Amendment to Credit Agreement, dated as of November 22, 2019, by and among FuelCell Energy, Inc., each of the Guarantors party to the Credit Agreement, each of the lenders party to the Credit Agreement and Orion Energy Partners Investment Agent, LLC. (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on November 25, 2019).

  10.115

Payoff Letter, Termination, and Release, dated as of November 22, 2019, by and among Groton Station Fuel Cell, LLC and Fifth Third Bank, National Association (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed on November 25, 2019).


Exhibit No.

Description

  10.116

Amendment to Loan Agreement, dated as of December 19, 2019, by and among FuelCell Energy, Inc. and Connecticut Green Bank (incorporated by reference to Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on December 20, 2019).

  10.117

Second Amendment to Credit Agreement, dated as of January 20, 2020, by and among FuelCell Energy, Inc., each of the Guarantors party to the Credit Agreement, each of the lenders party to the Credit Agreement and Orion Energy Partners Investment Agent, LLC.

 

 

 

  21

 

Subsidiaries of the Registrant

 

 

 

  23.1

 

Consent of Independent Registered Public Accounting Firm

 

 

 

  31.1

 

Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes Oxley Act of 2002

 

 

 

  31.2

 

Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes Oxley Act of 2002

 

 

 

  32.1

 

Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes Oxley Act of 2002

 

 

 

  32.2

 

Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes Oxley Act of 2002

 

 

 

101.SCH#

 

XBRL Schema Document

 

 

 

101.INS#

 

XBRL Instance Document

 

 

 

101.CAL#

 

XBRL Calculation Linkbase Document


Exhibit No.

Description

 

 

 

101.LAB#

 

XBRL Labels Linkbase Document

 

 

 

101.PRE#

 

XBRL Presentation Linkbase Document

 

 

 

101.DEF#

 

XBRL Definition Linkbase Document

 

The exhibits marked with the section symbol (#) are interactive data files.

*

Management Contract or Compensatory Plan or Arrangement

**

Confidential Treatment has been granted for portions of this document

Item 16.

FORM 10-K SUMMARY

Not applicable.

 


SIGNATURES

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

FUELCELL ENERGY, INC.

 

/s/ Arthur A. BottoneJason B. Few

 

Dated:

  January 10, 201922, 2020

Arthur A. BottoneJason B. Few

 

 

 

President, Chief Executive Officer

and DirectorChief Commercial Officer

 

 

 

 

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Signature

 

Capacity

 

Date

 

 

 

 

 

/s/ Arthur A. BottoneJason B. Few

Arthur A. BottoneJason B. Few

 

President, Chief Executive Officer, Chief Commercial Officer and Director

(Principal (Principal Executive Officer)

 

January 10, 201922, 2020

 

 

 

 

 

/s/ Michael S. Bishop

Michael S. Bishop

 

SeniorExecutive Vice President, Chief Financial Officer and Treasurer

(Principal Financial Officer and Principal Accounting Officer)

 

January 1022, 20192020

 

 

 

 

 

/s/ James H. England

James H. England

 

Director – Chairman of the Board

 

January 722, 20192020

 

 

 

 

 

/s/ Jason FewChris Groobey

Jason FewChris Groobey

 

Director

 

January 7, 201922, 2020

 

 

 

 

 

/s/ Matthew Hilzinger

Matthew Hilzinger

 

Director

 

January 9, 2019

/s/ Christina Lampe-Onnerud

Christina Lampe-Onnerud

Director

January 7, 2019

/s/ John A. Rolls

John A. Rolls

Director

January 7, 2019

/s/ Christopher S. Sotos

Christopher S. Sotos

Director

January 7, 201922, 2020

 

 

 

 

 

/s/ Natica von Althann

Natica von Althann

 

Director

 

January 8, 2019

22, 2020

 

169

143