SEC Form SC 13D/A filed by Bloom Energy Corporation (Amendment)

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 13D/A

Under the Securities Exchange Act of 1934
(Amendment No. 3)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D/A, and is filing this schedule because of 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box  ☐.

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See 240.13d-7(b) for other parties to whom copies are to be sent.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

SCHEDULE 13D/A

Explanatory Note

This Amendment No. 3 (this “Amendment”) amends the Schedule 13D filed on October 4, 2022 (the “Original 13D”), by SK ecoplant Co., Ltd. (“SK”), as amended by Amendment No. 1 thereto, which was filed on December 6, 2022, and by Amendment No. 2 thereto, which was filed on March 14, 2023, and is made pursuant to Rule 13d-1(a) of the Act. By way of background and as described in Amendment No.2:

This Amendment discloses the following:

Item 4. Purpose of Transaction

Item 4 of Schedule 13D is hereby amended by adding the following prior to the ultimate paragraph therein:

Bloom Amendment

As of March 20, 2023, the Issuer and SK entered into the Bloom Amendment, pursuant to which the Second Tranche Shares consist of 13,491,701 shares of the Issuer’s Series B Redeemable Convertible Preferred Stock (the “Series B RCPS”) which will be issued pursuant to the Certificate of Designations of the Issuer and which SK has agreed to purchase by March 24, 2023, unless earlier agreed upon by the parties. Under the amendment to the Investor Agreement, SK’s right to designate a member of the Issuer’s Board of Directors will not arise until SK’s shares of Series B RCPS are converted into shares of Class A Common Stock.

The description of the Bloom Amendment contained in this Item 4 is not intended to be complete and is qualified in its entirety by reference to such agreement, which is filed as Exhibit F hereto.

Series B RCPS Certificate of Designation

As of March 20, 2023, the Issuer designated the shares of new series preferred stock that is the designated as “Series B Redeemable Convertible Preferred Stock,” with the following terms:

The descriptions of the Series B RCPS Certificate of Designation and the terms of the Series B RCPS contained in this Item 4 are not intended to be complete and are qualified in their entirety by reference to the Series B Certificate of Designation, which is filed as Exhibit G below.

Contribution Agreement

As of March 23, 2023, SK and Econovation entered into the Contribution Agreement pursuant to which Econovation will grant SK 13,491,701 Class A Common Membership Interests in consideration for SK having paid the Issuer for the Series B RCPS.

The description of the Contribution Agreement contained in this Item 4 is not intended to be complete and is qualified in its entirety by reference to such agreement, which is filed as Exhibit H hereto.

Econovation Amendment

As of March 24, 2023, SK, Econovation, the SPC and the PEF amended and restated the Econovation SPA to reflect the change in the instrument that SK has the right to purchase under the Bloom Amendment from Class A Common Stock to Series B RCPS of the Issuer along with certain other updates to clarify the terms and conditions.

The Econovation Amendment otherwise maintains the same terms as the Econovation SPA. The description of the Econovation Amendment contained in this Item 4 is not intended to be complete and is qualified in its entirety by reference to such agreement, which is filed as Exhibit I hereto.

LLC Agreement

In connection with the entry into the Econovation Amendment, SK, the SPC and Econovation expect to amend and restate Econovation’s previous limited liability company agreement. The purchase by SK of the Series B RCPS of the Issuer for $310,957,102 in cash and SK’s directing of the Issuer to issue these shares in the name of Econovation will represent an effective capital contribution by SK to Econovation in an amount equal to the $311,957,202, which is the sum of (i) the purchase price, (ii) operational expenses of $1 million, and (iii) the initial capital contribution of $100 made by SK, and Econovation will credit SK with 13,491,701 Class A Common Membership Interests of Econovation. The purchase by the SPC from SK of up to 6,610,934 Class A Common Membership Interests for up to $152,859,040 in cash under the Econovation Amendment will constitute a deemed capital contribution by the SPC to Econovation, pursuant to which the SPC will become a Member of Econovation. Under the LLC Agreement, the Class A Common Membership Interests purchased by the SPC will be automatically exchanged for a like number of Preferred Membership Interests of Econovation. The LLC Agreement provides for SK to act as the managing member of Econovation and initially to have three out of the five seats of the Board of Managers of Econovation. The governance provisions of the LLC Agreement provide that Econovation may not take certain major decisions without the unanimous consent of its Board of Managers. The Common Membership Interests and Preferred Membership Interests each will have one vote per Membership Interest.

Notwithstanding the above, if the Issuer’s Class A Common Stock that is then owned by Econovation is not sold by the third anniversary of the date that Econovation acquires the Issuer’s Series B RCPS, then the SPC may exchange its Preferred Membership Interests for Class B Common Membership Interests. Class B Common Membership Interests will have the same terms as Class A Common Membership Interests, except that they will carry five votes per Membership Interest. On and after the third anniversary of the date that Econovation acquires the Series B RCPS, the SPC may convert its Preferred Membership Interests into Class B Membership Interests, which shall be convertible on a one-for-one basis. In connection with such conversion, the SPC will have the right to designate three out of the five members of the Board of Managers

If after 40 business days after the Class B Membership Interests are issued, the Series B RCPS will not have been sold or no actions have been taken to commence such sale, despite the best efforts of Econovation to do so, then the Class B Membership Interests will be exchanged for the Class A Common Membership Interests. In that event, SK will then revert back to having the right to designate three out of the five members of the Board of Managers.

The LLC Agreement provides for dividends paid by the Issuer to be paid to Members based on the type of the Members’ Membership Interests, other distributions and redemption rights regarding the Membership Interests in connection with the sale of the Issuer’s Class A Common Stock, subject the terms of the Members Agreement and to the restrictions of Delaware law. The LLC Agreement also contains customary provisions regarding its term, the admission of new Members, other governance and management in addition to those referred to above, capital contributions, restrictions on transfer, tax and accounting matters and other customary provisions. The LLC Agreement will be governed by Delaware law.

The description of the LLC Agreement contained in this Item 4 is not intended to be complete and is qualified in its entirety by reference to such agreement, the form of which is filed as Exhibit J hereto.

Members Agreement

In connection with the purchase of Common Membership Interests under the Econovation Amendment and the entry into the LLC Agreement, SK, the SPC and Econovation expect to enter into the Members Agreement that provides the terms, conditions and return parameters regarding the sale of the Series B RCPS of the Issuer by Econovation and any related distributions and dividends to SK and the SPC. The Members Agreement contains two lock-up periods during which Econovation may not sell the Series B RCPS of the Issuer: a first lock-up period of two years after Econovation acquires the Series B RCPS of the Issuer, and a second lock-up period of an additional year until the final maturity date of the Members Agreement (which is the third anniversary of the date Econovation acquires these shares), subject to specified exceptions. The Members Agreement provides for the sale of these shares, subject to drag-along rights, a right of first offer for the parties, a mandatory sale by the maturity date and provisions regarding how profits from any sales of such shares are to be distributed, subject to the restrictions of Delaware law. The Members Agreement will be governed by the laws of the Republic of Korea, subject to the mandatory provisions of Delaware law.

The description of the Members Agreement contained in this Item 4 is not intended to be complete and is qualified in its entirety by reference to such agreement, the English translation of which is filed as Exhibit K hereto.

Shareholder’s Loan Agreement

On March 20, 2023, SK and the Issuer entered into a Shareholder’s Loan Agreement. The Shareholder’s Loan Agreement provides for the Issuer to borrow from SK $310,957,102, only during an availability period from the date of the agreement until the earlier of (i) six months from the date of the agreement and (ii) the date upon which SK and Econovation own or have acquired 23,491,701 shares of the Issuer’s Class A Common Stock. The loan, if borrowed, will bear interest at an annual rate of 4.6% and will become payable on the fifth anniversary of the date of the agreement, or March 20, 2028. The agreement contains customary representations and warranties, conditions to borrowing, payment mechanics, events of default and remedies and other provisions. The Shareholder’s Loan Agreement is governed by the laws of the State of New York.

The description of the Shareholder’s Loan Agreement contained in this Item 4 is not intended to be complete and is qualified in its entirety by reference to such agreement, which is filed as Exhibit M hereto.

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer

Item 6 of Schedule 13D is hereby amended and supplemented by incorporating the information set forth in Item 4 into this Item 6.

Item 7. Material to Be Filed as Exhibits

SIGNATURES

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

Date: March 24, 2023

SCHEDULE I

DIRECTORS AND EXECUTIVE OFFICERS OF THE REPORTING PERSONS

Set forth below is the name and present principal occupation or employment of each director and executive officer of SK ecoplant Co., Ltd. The business address of each of the directors and executive officers is 19 Yulgok-ro 2-gil, Jongno-gu, Seoul 03149, Korea. Each person listed below is a citizen of the Republic of Korea.

Set forth below is the name and present principal occupation or employment of each member and officer of Econovation, LLC. The business address of each of the members and officers is 19 Yulgok-ro 2-gil, Jongno-gu, Seoul 03149, Korea. Each person listed below is a citizen of the Republic of Korea.

Set forth below is the name and present principal occupation or employment of each controlling person and/or entity, member and officer of Blooming Green Energy Limited. The business address of each of the members and officers is 31, Gukjegeumyung-ro (Yeouido-dong, SK Securities Building), Yeongdeungpo-gu, Seoul, Korea . Each person listed below is a citizen of the Republic of Korea.

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