Form 8-K
8-K — FUELCELL ENERGY INC
Accession: 0001104659-26-039985
Filed: 2026-04-06
Period: 2026-04-02
CIK: 0000886128
SIC: 3620 (ELECTRICAL INDUSTRIAL APPARATUS)
Item: Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers: Compensatory Arrangements of Certain Officers
Item: Submission of Matters to a Vote of Security Holders
Item: Financial Statements and Exhibits
Documents
8-K — tm2611183d1_8k.htm (Primary)
EX-10.1 — EXHIBIT 10.1 (tm2611183d1_ex10-1.htm)
EX-10.2 — EXHIBIT 10.2 (tm2611183d1_ex10-2.htm)
XML — IDEA: XBRL DOCUMENT (R1.htm)
8-K — FORM 8-K
8-K (Primary)
Filename: tm2611183d1_8k.htm · Sequence: 1
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2026-04-02
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event
reported): April 2, 2026
FUELCELL ENERGY, INC.
(Exact Name of Registrant as Specified
in its Charter)
Delaware
1-14204
06-0853042
(State or Other Jurisdiction
of
Incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)
3 Great Pasture Road
Danbury, Connecticut
06810
(Address of Principal Executive Offices)
(Zip Code)
Registrant’s telephone
number, including area code: (203) 825-6000
Not Applicable
(Former Name or Former Address, if Changed
Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, $0.0001 par value per share
FCEL
The Nasdaq Stock Market LLC
(Nasdaq Global Market)
Indicate by check mark whether the registrant is an emerging
growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth
company ¨
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 13(a) of the Exchange Act. ¨
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers;
Compensatory Arrangements of Certain Officers.
(e) At
the 2026 Annual Meeting of Stockholders of FuelCell Energy, Inc. (the “Company”) on April 2, 2026 (the “Annual Meeting”),
the Company’s stockholders approved (i) the amendment and restatement of the FuelCell Energy, Inc. Fifth Amended and Restated 2018
Omnibus Incentive Plan (as so amended and restated, the “Sixth Amended and Restated Incentive Plan”), and (ii) the amendment
and restatement of the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated (as so amended and restated, the
“Amended and Restated ESPP”), both of which had previously been approved by the Company’s Board of Directors (the “Board”),
subject to stockholder approval. Additional information regarding the results of the Annual Meeting is set forth below under Item 5.07
of this Current Report on Form 8-K.
Amendment and Restatement of the FuelCell Energy,
Inc. Fifth Amended and Restated 2018 Omnibus Incentive Plan
The purpose of the amendment
and restatement of the Fifth Amended and Restated 2018 Omnibus Incentive Plan was to authorize the Company to issue up to 3,000,000 additional
shares of the Company’s common stock pursuant to awards under the Sixth Amended and Restated Incentive Plan.
Following the approval of
the amendment and restatement (and therefore the Sixth Amended and Restated Incentive Plan) by the Company’s stockholders at the
Annual Meeting, the Sixth Amended and Restated Incentive Plan provides the Company with the authority to issue a total of 5,194,444 shares
of the Company’s common stock. The Sixth Amended and Restated Incentive Plan authorizes grants of stock options, stock appreciation
rights, restricted stock, restricted stock units, shares, performance shares, performance units, incentive awards and dividend equivalent
units to officers, other employees, directors, consultants and advisors. Up to 61,111 shares of the Company’s common stock may be
issued pursuant to the exercise of incentive stock options. The Board or the administrator of the Sixth Amended and Restated Incentive
Plan may terminate the Sixth Amended and Restated Incentive Plan at any time. No award may be granted under the Sixth Amended and Restated
Incentive Plan after the tenth anniversary of the approval of the Sixth Amended and Restated Incentive Plan by stockholders at the Annual
Meeting.
The Sixth Amended and Restated
Incentive Plan is described in detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission
(“SEC”) on February 18, 2026. A copy of the Sixth Amended and Restated Incentive Plan is filed as Exhibit 10.1 to this Current
Report on Form 8-K and is incorporated herein by reference. The description of the Sixth Amended and Restated Incentive Plan set forth
above is qualified in its entirety by reference to such materials.
Amendment and Restatement of the FuelCell Energy,
Inc. 2018 Employee Stock Purchase Plan, as amended and restated
The purpose of the amendment
and restatement of the 2018 Employee Stock Purchase Plan, as amended and restated, was to authorize the Company to issue up to 300,000
additional shares of the Company’s common stock under the Amended and Restated ESPP.
Following the approval of
the amendment and restatement (and therefore the Amended and Restated ESPP) by the Company’s stockholders at the Annual Meeting,
the Amended and Restated ESPP provides the Company with the authority to issue a total of 300,078 shares of the Company’s common
stock.
The Amended and Restated
ESPP limits the number of shares of the Company’s common stock that any individual participant may purchase during an offering period
to 1,000 shares.
The Amended and Restated
ESPP, which is intended to satisfy the requirements of Section 423 of the Internal Revenue Code of 1986, as amended, allows the Company
to provide eligible employees of the Company and of certain designated subsidiaries with the opportunity to voluntarily participate in
the Amended and Restated 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 Board may, in its sole discretion, terminate the Amended and Restated ESPP at any time. If
the Board does not earlier terminate the Amended and Restated ESPP, the Amended and Restated ESPP will terminate on the date on which
all shares of common stock available for issuance have been sold pursuant to purchase rights exercised under the Amended and Restated
ESPP.
The Amended and Restated
ESPP is described in detail in the Company’s definitive proxy statement filed with the SEC on February 18, 2026. A copy of the Amended
and Restated ESPP is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference. The description
of the Amended and Restated ESPP set forth above is qualified in its entirety by reference to such materials.
Item 5.07. Submission of Matters to a Vote of Security Holders.
At the Company’s Annual
Meeting on April 2, 2026, five proposals were submitted to a vote of the holders of shares of common stock of the Company. The voting
results with respect to those five proposals were as follows:
(1) Election of eight directors to serve until the 2027
Annual Meeting of Stockholders and until their successors are duly elected and qualified.
NAME OF DIRECTOR
VOTES FOR
VOTES AGAINST
ABSTENTIONS
BROKER NON-VOTES
James H. England
13,483,683
3,604,594
73,140
9,758,552
Jason Few
16,379,036
711,069
71,312
9,758,552
Matthew F. Hilzinger
16,414,355
675,930
71,132
9,758,552
Natica von Althann
16,380,542
706,392
74,483
9,758,552
Cynthia Hansen
16,425,658
663,963
71,796
9,758,552
Donna Sims Wilson
13,534,641
3,566,159
60,617
9,758,552
Betsy Bingham
16,405,646
697,804
57,967
9,758,552
Tyrone Michael Jordan
16,343,615
771,774
46,028
9,758,552
Accordingly, each of James H. England, Jason Few, Matthew
F. Hilzinger, Natica von Althann, Cynthia Hansen, Donna Sims Wilson, Betsy Bingham, and Tyrone Michael Jordan have been re-elected as
directors.
(2) Approval, on a non-binding advisory basis, of the compensation
of the Company’s named executive officers as set forth in the “Executive Compensation” section of the proxy statement.
VOTES FOR: 13,087,564
VOTES AGAINST: 3,941,931
ABSTENTIONS: 131,922
BROKER NON-VOTES: 9,758,552
Accordingly, the compensation of the Company’s named
executive officers as set forth in the “Executive Compensation” section of the proxy statement has been approved by the stockholders.
(3) Ratification of the selection of KPMG LLP as the Company’s
independent registered public accounting firm for the fiscal year ending October 31, 2026.
VOTES FOR: 22,592,473
VOTES AGAINST: 4,186,613
ABSTENTIONS: 140,883
BROKER NON-VOTES: 0
Accordingly, the selection of KPMG LLP as the Company’s
independent registered public accounting firm for the fiscal year ending October 31, 2026 has been ratified.
(4) Approval of the amendment and restatement of the FuelCell
Energy, Inc. Fifth Amended and Restated 2018 Omnibus Incentive Plan.
VOTES FOR: 13,348,214
VOTES AGAINST: 3,743,025
ABSTENTIONS: 70,178
BROKER NON-VOTES: 9,758,552
Accordingly, the amendment and restatement of the FuelCell
Energy, Inc. Fifth Amended and Restated 2018 Omnibus Incentive Plan has been approved by the stockholders.
(5) Approval of the amendment and restatement of the FuelCell
Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated.
VOTES FOR: 16,357,722
VOTES AGAINST: 759,892
ABSTENTIONS: 43,803
BROKER NON-VOTES: 9,758,552
Accordingly, the amendment and restatement of the FuelCell
Energy, Inc. 2018 Employee Stock Purchase Plan, as amended and restated, has been approved by the stockholders.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are being filed herewith:
Exhibit
Number
Description
10.1
FuelCell Energy, Inc. Sixth Amended and Restated 2018 Omnibus
Incentive Plan, effective as of April 2, 2026.
10.2
FuelCell
Energy, Inc. 2018 Employee Stock Purchase Plan, as Amended and Restated Effective as of April 2, 2026.
104
Cover Page Interactive Data File (embedded within the Inline XBRL document)
SIGNATURES
Pursuant to the requirements
of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
FUELCELL ENERGY, INC.
Date: April 6, 2026
By:
/s/ Michael S. Bishop
Michael S. Bishop
Executive Vice President, Chief Financial Officer, and Treasurer
EX-10.1 — EXHIBIT 10.1
EX-10.1
Filename: tm2611183d1_ex10-1.htm · Sequence: 2
Exhibit 10.1
FuelCell Energy, Inc.
Sixth Amended and
Restated
2018 Omnibus Incentive
Plan
Effective
as of April 2, 2026
1. Purposes, History
and Effective Date
(a) Purpose.
The FuelCell Energy, Inc. 2018 Omnibus Incentive Plan has two complementary purposes:
(i) to attract and retain outstanding individuals to serve as officers, directors, employees
and consultants and (ii) to increase shareholder value. The Plan will provide participants
with incentives to increase shareholder value by offering the opportunity to acquire shares
of the Company’s common stock, receive monetary payments based on the value of such
common stock, or receive other incentive compensation, on the potentially favorable terms
that this Plan provides.
(b) History.
Prior to the effective date of this Plan, the Company had in effect the FuelCell Energy, Inc.
Amended and Restated 2010 Equity Incentive Plan (the “Prior Plan”). Upon
shareholder approval of this Plan, the Prior Plan terminated and no new awards could be granted
under the Prior Plan, although awards previously granted under the Prior Plan and still outstanding
continued to be subject to all terms and conditions of the Prior Plan.
(c) Effective
Date; Amendment and Restatement. This Plan became effective, and Awards could be granted
under this Plan, on and after April 5, 2018 (the “Effective Date”),
the date on which the Company’s shareholders approved this Plan at the annual shareholders
meeting. This Plan was amended and restated effective as of May 8, 2020, April 8,
2021, May 22, 2023, April 4, 2024, and April 17, 2025 and is again being amended
and restated effective as of April 2, 2026, subject to approval by the Company’s
shareholders at the Company’s 2026 annual meeting. This Plan will terminate as provided
in Section 17.
2. Definitions
Capitalized terms used and not otherwise
defined in this Plan or in any Award agreement have the following meanings:
(a) “Act” means
the Securities Act of 1933, as amended from time to time. Any reference to a specific provision
of the Act shall include any successor provision thereto.
(b) “Administrator” means
the Committee; provided that, to the extent the Committee has delegated
authority and responsibility as an Administrator of the Plan to one or more officers of the
Company as permitted by Section 3(b), the term “Administrator” shall also
mean such officer or officers.
(c) “Affiliate” has
the meaning ascribed to such term in Rule 12b-2 under the Exchange Act. Notwithstanding
the foregoing, for purposes of determining those individuals to whom an Option or a Stock
Appreciation Right may be granted, the term “Affiliate” means any entity that,
directly or through one or more intermediaries, is controlled by or is under common control
with, the Company within the meaning of Code Sections 414(b) or (c); provided that,
in applying such provisions, the phrase “at least 20%” shall be used in place
of “at least 80%” each place it appears therein.
(d) “Award” means
a grant of Options, Stock Appreciation Rights, Performance Shares, Performance Units, Stock,
Restricted Stock, Restricted Stock Units, an Incentive Award, Dividend Equivalent Units or
any other type of award permitted under this Plan. Any Award granted under this Plan shall
be provided or made in such manner and at such time as complies with the applicable requirements
of Code Section 409A to avoid a plan failure described in Code Section 409A(a)(1),
including, without limitation, deferring payment to a specified employee or until a specified
distribution event, as provided in Code Section 409A(a)(2), and the provisions of Code
Section 409A are incorporated into this Plan to the extent necessary for any Award that
is subject to Code Section 409A to comply therewith.
(e) “Beneficial
Owner” means a Person, with respect to any securities which:
(i) Such
Person or any of such Person’s Affiliates has the right to acquire (whether such right
is exercisable immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion rights, exchange rights,
rights, warrants or options or otherwise; provided, however, that a Person shall not be deemed
the Beneficial Owner of, or to beneficially own, securities tendered pursuant to a tender
or exchange offer made by or on behalf of such Person or any of such Person’s Affiliates
until such tendered securities are accepted for purchase;
(ii) Such
Person or any of such Person’s Affiliates, directly or indirectly, has the right to
vote or dispose of or has “beneficial ownership” of (as determined pursuant to
Rule 13d-3 of the General Rules and Regulations under the Act), including pursuant
to any agreement, arrangement or understanding; provided, however, that a Person shall not
be deemed the Beneficial Owner of, or to beneficially own, any security under this clause
(ii) as a result of an agreement, arrangement or understanding to vote such security
if the agreement, arrangement or understanding: (A) arises solely from a revocable proxy
or consent given to such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations under the
Act and (B) is not also then reportable on a Schedule 13D under the Act (or any
comparable or successor report); or
(iii) Are
beneficially owned, directly or indirectly, by any other Person with which such Person or
any of such Person’s Affiliates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting (except pursuant to a revocable proxy as described
in clause (ii) above) or disposing of any voting securities of the Company.
(f) “Board” means
the Board of Directors of the Company.
(g) “Cause” has
the meaning given in a Participant’s employment, retention, change of control, severance
or similar agreement with the Company or any Affiliate, or if no such agreement is in effect,
then (i) if the determination of Cause is being made prior to a Change of Control, Cause
has the meaning given in the Company’s employment policies as in effect at the time
of the determination or (ii) if the determination of Cause is being made following a
Change of Control, Cause has the meaning given in the Company’s employment policies
as in effect immediately prior to the Change of Control.
(h) “Change
of Control” means, unless specified otherwise in an Award agreement, the occurrence
of any of the following:
(i) Any
Person (other than (A) the Company or any of its subsidiaries, (B) a trustee or
other fiduciary holding securities under any employee benefit plan of the Company or any
of its subsidiaries, (C) an underwriter temporarily holding securities pursuant to an
offering of such securities or (D) a corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their ownership of stock
in the Company (“Excluded Persons”)) is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or its Affiliates
after the Effective Date, pursuant to express authorization by the Board that refers to this
exception) representing 50% or more of either the then outstanding shares of common stock
of the Company or the combined voting power of the Company’s then outstanding voting
securities; or
(ii) The
following individuals cease for any reason to constitute a majority of the number of directors
of the Company then serving: (A) individuals who, on the Effective Date, constituted
the Board and (B) any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors of the Company,
as such terms are used in Rule 14a-11 of Regulation 14A under the Act) whose appointment
or election by the Board or nomination for election by the Company’s shareholders was
approved by a vote of at least two-thirds (2/3) of the directors then still in office who
either were directors on the Effective Date, or whose appointment, election or nomination
for election was previously so approved (collectively the “Continuing Directors”);
provided, however, that individuals who are appointed to the Board pursuant to or in accordance
with the terms of an agreement relating to a merger, consolidation, or share exchange involving
the Company (or any direct or indirect subsidiary of the Company) shall not be Continuing
Directors for purposes of this Agreement until after such individuals are first nominated
for election by a vote of at least two-thirds (2/3) of the then Continuing Directors and
are thereafter elected as directors by the shareholders of the Company at a meeting of shareholders
held following consummation of such merger, consolidation or share exchange; and, provided
further, that in the event the failure of any such persons appointed to the Board to be Continuing
Directors results in a Change of Control, the subsequent qualification of such persons as
Continuing Directors shall not alter the fact that a Change of Control occurred; or
(iii) The
consummation of a merger, consolidation or share exchange of the Company with any other corporation
or the issuance of voting securities of the Company in connection with a merger, consolidation
or share exchange of the Company (or any direct or indirect subsidiary of the Company), in
each case, which requires approval of the shareholders of the Company, other than (A) a
merger, consolidation or share exchange which would result in the voting securities of the
Company outstanding immediately prior to such merger, consolidation or share exchange continuing
to represent (either by remaining outstanding or by being converted into voting securities
of the surviving entity or any parent thereof) at least 50% of the combined voting power
of the voting securities of the Company or such surviving entity or any parent thereof outstanding
immediately after such merger, consolidation or share exchange, or (B) a merger, consolidation
or share exchange effected to implement a recapitalization of the Company (or similar transaction)
in which no Person (other than an Excluded Person) is or becomes the Beneficial Owner, directly
or indirectly, of securities of the Company (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or its Affiliates
after the Effective Date, pursuant to express authorization by the Board that refers to this
exception) representing 50% or more of either the then outstanding shares of common stock
of the Company or the combined voting power of the Company’s then outstanding voting
securities; or
(iv) The
consummation of a plan of complete liquidation or dissolution of the Company or a sale or
disposition by the Company of all or substantially all of the Company’s assets (in
one transaction or a series of related transactions within any period of 24 consecutive months),
in each case, which requires approval of the shareholders of the Company, other than a sale
or disposition by the Company of all or substantially all of the Company’s assets to
an entity at least 75% of the combined voting power of the voting securities of which are
owned by Persons in substantially the same proportions as their ownership of the Company
immediately prior to such sale.
Notwithstanding the foregoing,
no “Change of Control” shall be deemed to have occurred if there is consummated any transaction or series of integrated transactions
immediately following which the record holders of the common stock of the Company immediately prior to such transaction or series of
transactions continue to own, directly or indirectly, in the same proportions as their ownership in the Company, an entity that owns
all or substantially all of the assets or voting securities of the Company immediately following such transaction or series of transactions.
Notwithstanding the foregoing,
if an Award is considered deferred compensation subject to the provisions of Code Section 409A, and if a payment under such Award
is triggered upon a “Change of Control,” then the foregoing definition shall be deemed amended as necessary to comply with
Code Section 409A.
(i) “Code” means
the Internal Revenue Code of 1986, as amended. Any reference to a specific provision of the
Code includes any successor provision and the regulations promulgated under such provision.
(j) “Committee” means
the Compensation and Leadership Development Committee of the Board, any successor committee
thereto, and subcommittee thereof, or such other committee of the Board that is designated
by the Board with the same or similar authority. The Committee shall consist only of not
fewer than two Directors, each of whom is a “non-employee director” within the
meaning of Rule 16b-3 promulgated under the Exchange Act.
(k) “Company” means
FuelCell Energy, Inc., a Delaware corporation, or any successor thereto.
(l) “Director” means
a member of the Board.
(m) “Disability” means,
unless otherwise determined by the Committee in the applicable Award agreement, a finding
of disability under the Company’s long-term disability plan. Notwithstanding the foregoing,
for Awards that are subject to Section 409A of the Code, Disability shall mean that
a Participant is disabled under Section 409A(a)(2)(C)(i) or (ii) of the Code.
(n) “Dividend
Equivalent Unit” means the right to receive a payment, in cash or Shares,
equal to the cash dividends or other cash distributions paid with respect to a Share.
(o) “Effective
Date” shall have the meaning provided in Section 1(c).
(p) “Exchange
Act” means the Securities Exchange Act of 1934, as amended. Any reference
to a specific provision of the Exchange Act includes any successor provision and the regulations
and rules promulgated under such provision.
(q) “Fair
Market Value” means, per Share on a particular date, (i) if the Shares
are listed on a national securities exchange, the last sales price on that date on the national
securities exchange on which the Stock is then traded, or if no sales of Stock occur on such
date, then on the last preceding date on which there was a sale on such exchange; or (ii) if
the Shares are not listed on a national securities exchange, but are traded in an over-the-counter
market, the last sales price (or, if there is no last sales price reported, the average of
the closing bid and asked prices) for the Shares on that date, or on the last preceding date
on which there was a sale of Shares on that market; or (iii) if the Shares are neither
listed on a national securities exchange nor traded in an over-the-counter market, the price
determined by the Administrator, in its discretion. Notwithstanding the foregoing, in the
case of the sale of Shares, the actual sale price shall be the Fair Market Value of such
Shares.
(r) “Incentive
Award” means the right to receive a cash payment to the extent Performance
Goals are achieved (or other requirements are met), and shall include “Annual Incentive
Awards” as described in Section 10 and “Long-Term Incentive Awards”
as described in Section 11.
(s) “Non-Employee
Director” means a Director who is not also an employee of the Company or its
Subsidiaries.
(t) “Option” means
the right to purchase Shares at a stated price for a specified period of time.
(u) “Participant” means
an individual selected by the Administrator to receive an Award.
(v) “Performance
Goals” means any goals the Administrator establishes pursuant to an Award.
The Performance Goals may include a threshold level of performance below which no payment
will be made (or no vesting will occur), levels of performance at which specified payments
will be paid (or specified vesting will occur), and a maximum level of performance above
which no additional payment will be made (or at which full vesting will occur).
(w) “Performance
Shares” means the right to receive Shares to the extent Performance Goals
are achieved (or other requirements are met).
(x) “Performance
Unit” means the right to receive a cash payment and/or Shares valued in relation
to a unit that has a designated dollar value or the value of which is equal to the Fair Market
Value of one or more Shares, to the extent Performance Goals are achieved (or other requirements
are met).
(y) “Person” means
any individual, firm, partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing acting in concert.
(z) “Plan” means
this FuelCell Energy, Inc. 2018 Omnibus Incentive Plan, as it may be amended from time
to time.
(aa) “Restricted
Stock” means Shares that are subject to a risk of forfeiture or restrictions
on transfer, or both a risk of forfeiture and restrictions on transfer, which may lapse upon
the achievement or partial achievement of Performance Goals or upon the completion of a period
of service, or both.
(bb) “Restricted
Stock Unit” means the right to receive a cash payment and/or Shares the value
of which is equal to the Fair Market Value of one Share.
(cc) “Section 16
Participants” means Participants who are subject to the provisions of Section 16
of the Exchange Act.
(dd) “Share” means
a share of Stock.
(ee) “Stock” means
the Common Stock of the Company, par value $0.0001 per share.
(ff) “Stock
Appreciation Right” or “SAR” means the right to receive a cash
payment, and/or Shares with a Fair Market Value, equal to the appreciation of the Fair Market
Value of a Share during a specified period of time.
(gg) “Subsidiary” means
any corporation, limited liability company or other limited liability entity in an unbroken
chain of entities beginning with the Company if each of the entities (other than the last
entities in the chain) owns the stock or equity interest possessing more than 50% of the
total combined voting power of all classes of stock or other equity interests in one of the
other entities in the chain.
3. Administration
(a) Administration.
In addition to the authority specifically granted to the Administrator in this Plan,
the Administrator has full discretionary authority to administer this Plan, including but
not limited to the authority to: (i) interpret the provisions of this Plan or any agreement
covering an Award; (ii) prescribe, amend and rescind rules and regulations relating
to this Plan; (iii) correct any defect, supply any omission, or reconcile any inconsistency
in the Plan, any Award or any agreement covering an Award in the manner and to the extent
it deems desirable to carry this Plan or such Award into effect; and (iv) make all other
determinations necessary or advisable for the administration of this Plan. Notwithstanding
any provision of the Plan to the contrary, the Administrator shall have the discretion to
accelerate or shorten the vesting, restriction period or performance period of an Award,
in connection with a Participant’s death, Disability, retirement or termination of
employment or service with the Company for any reason. All Administrator determinations shall
be made in the sole discretion of the Administrator and are final and binding on all interested
parties.
(b) Delegation
to Other Committees or Officers. To the extent applicable law permits, the Board may
delegate to another committee of the Board, or the Committee may delegate to one or more
officers of the Company, any or all of their respective authority and responsibility as an
Administrator of the Plan; provided that no such delegation is permitted
with respect to Stock-based Awards made to Section 16 Participants at the time any such
delegated authority or responsibility is exercised unless the delegation is to another committee
of the Board consisting entirely of Non-Employee Directors. If the Board or the Committee
has made such a delegation, then all references to the Administrator in this Plan include
such other committee or one or more officers to the extent of such delegation.
(c) No
Liability; Indemnification. No member of the Board or the Committee, and no officer or
member of any other committee to whom a delegation under Section 3(b) has been
made, will be liable for any act done, or determination made, by the individual in good faith
with respect to the Plan or any Award. The Company will indemnify and hold harmless each
such individual as to any acts or omissions, or determinations made, in each case done or
made in good faith, with respect to this Plan or any Award to the maximum extent that the
law and the Company’s By-Laws permit.
4. Eligibility
The Administrator may designate any
of the following as a Participant from time to time, to the extent of the Administrator’s authority: any officer or other employee
of the Company or its Affiliates; any individual that the Company or an Affiliate has engaged to become an officer or employee; any consultant
or advisor who provides services to the Company or its Affiliates; or any Director, including a Non-Employee Director. The Administrator’s
designation of, or granting of an Award to, a Participant will not require the Administrator to designate such individual as a Participant
or grant an Award to such individual at any future time. The Administrator’s granting of a particular type of Award to a Participant
will not require the Administrator to grant any other type of Award to such individual.
5. Types of Awards;
Award Agreements
Subject to the terms of this Plan, the
Administrator may grant any type of Award to any Participant it selects, but only employees of the Company or a Subsidiary may receive
grants of incentive stock options within the meaning of Code Section 422. Awards may be granted alone or in addition to, in tandem
with, or (subject to the prohibition on repricing set forth in Section 17(e)) in substitution for any other Award (or any other
award granted under another plan of the Company or any Affiliate, including the plan of an acquired entity). Each Award shall be evidenced
by an Award agreement, which may include such other provisions (whether or not applicable to the Award granted to any other Participant)
as the Administrator determines appropriate to the extent not otherwise prohibited by the terms of the Plan.
6. Shares Reserved
under this Plan
(a) Plan Reserve.
Subject to adjustment as provided in Section 19, an aggregate of 5,194,444 Shares,
are reserved for issuance under this Plan; provided that only 61,111 of
such Shares may be issued pursuant to the exercise of incentive stock options. The Shares
reserved for issuance may be either authorized and unissued Shares or Shares reacquired at
any time and now or hereafter held as treasury stock.
(b) Depletion
of Reserve. The aggregate number of Shares reserved under Section 6(a) shall
be depleted on the date of grant of an Award by the maximum number of Shares, if any, that
may be issuable under an Award as determined at the time of grant. For the avoidance of doubt,
awards that may only be settled in cash (determined at the time of grant) shall not deplete
the share reserve.
(c) Replenishment
of Shares Under this Plan. If (i) an Award lapses, expires, terminates or is cancelled
without the issuance of Shares under the Award (whether due currently or on a deferred basis),
(ii) it is determined during or at the conclusion of the term of an Award that all or
some portion of the Shares with respect to which the Award was granted will not be issuable
on the basis that the conditions for such issuance will not be satisfied, (iii) Shares
are forfeited under an Award, (iv) Shares are issued under any Award and the Company
subsequently reacquires them pursuant to rights reserved upon the issuance of the Shares,
or (v) an Award or a portion thereof is settled in Cash, then such Shares shall be recredited
to the Plan’s reserve and may again be used for new Awards under this Plan, but Shares
recredited to the Plan’s reserve pursuant to clause (iv) may not be issued pursuant
to incentive stock options. Notwithstanding the foregoing, in no event shall the following
Shares be recredited to the Plan’s reserve: (i) Shares purchased by the Company
using proceeds from Option exercises; (ii) Shares tendered or withheld in payment of
the exercise price of an Option or as a result of the net settlement of an outstanding Stock
Appreciation Right; or (iii) Shares tendered or withheld to satisfy federal, state or
local tax withholding obligations.
(d) Director
Award Limit. In no event shall the aggregate grant date value (determined in accordance
with generally accepted accounting principles) of all Awards granted to a Non-Employee Director
in a fiscal year of the Company, taken together with any cash fees paid during a calendar
year to the Non-Employee Director, exceed $250,000; provided, however, that such
limit shall be doubled with respect to the first year during which the Non-Employee Director
first serves on the Board.
7. Options
(a) Terms.
Subject to the terms of this Plan, the Administrator will determine all terms and conditions
of each Option, including but not limited to: (i) whether the Option is an “incentive
stock option” which meets the requirements of Code Section 422, or a “nonqualified
stock option” which does not meet the requirements of Code Section 422; (ii) the
grant date, which may not be any day prior to the date that the Administrator approves the
grant; (iii) the number of Shares subject to the Option; (iv) the exercise price,
which may never be less than the Fair Market Value of the Shares subject to the Option as
determined on the date of grant; (v) the terms and conditions of vesting and exercise;
(vi) the term, except that an Option must terminate no later than 10 years after the
date of grant; and (vii) the manner of payment of the exercise price.
(b) Incentive
Stock Options. The terms of any incentive stock option should comply with the provisions
of Code Section 422 except to the extent the Administrator determines otherwise. If
an Option that is intended to be an incentive stock option fails to meet the requirements
thereof, the Option shall automatically be treated as a nonqualified stock option to the
extent of such failure.
(c) Exercise.
To the extent permitted by the Administrator, and subject to such procedures as the Administrator
may specify, the payment of the exercise price of Options may be made by (w) delivery
of cash or other Shares or other securities of the Company (including by attestation) having
a then Fair Market Value equal to the purchase price of such Shares, (x) by delivery
(including by fax) to the Company or its designated agent of an executed irrevocable option
exercise form together with irrevocable instructions to a broker-dealer to sell or margin
a sufficient portion of the Shares and deliver the sale or margin loan proceeds directly
to the Company to pay for the exercise price, (y) by surrendering the right to receive
Shares otherwise deliverable to the Participant upon exercise of the Award having a Fair
Market Value at the time of exercise equal to the total exercise price, or (z) by any
combination of (w), (x) and/or (y).
(d) No
Rights as Shareholder. Except to the extent otherwise set forth in an Award agreement,
a Participant shall have no rights as a holder of Stock as a result of the grant of an Option
until the Option is exercised, the exercise price and applicable withholding taxes are paid
and the Shares subject to the Option are issued thereunder.
8. Stock Appreciation
Rights
(a) Terms.
Subject to the terms of this Plan, the Administrator will determine all terms and conditions
of each SAR, including but not limited to: (i) whether the SAR is granted independently
of an Option or in tandem with an Option; (ii) the grant date, which may not be any
day prior to the date that the Administrator approves the grant; (iii) the number of
Shares to which the SAR relates; (iv) the grant price, which may never be less than
the Fair Market Value of the Shares subject to the SAR as determined on the date of grant;
(v) the terms and conditions of exercise or maturity, including vesting; (vi) the
term, provided that an SAR must terminate no later than 10 years after the
date of grant; and (vii) whether the SAR will be settled in cash, Shares or a combination
thereof.
(b) Tandem
SARs. If an SAR is granted in relation to an Option, then unless otherwise determined
by the Administrator, the SAR shall be exercisable or shall mature at the same time or times,
on the same conditions and to the extent and in the proportion, that the related Option is
exercisable and may be exercised or mature for all or part of the Shares subject to the related
Option. Upon exercise of any number of SARs, the number of Shares subject to the related
Option shall be reduced accordingly and such Option may not be exercised with respect to
that number of Shares. The exercise of any number of Options that relate to an SAR shall
likewise result in an equivalent reduction in the number of Shares covered by the related
SAR.
9. Performance and
Stock Awards
Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of each award of Shares, Restricted Stock, Restricted Stock Units, Performance
Shares or Performance Units, including but not limited to: (a) the number of Shares and/or units to which such Award relates;
(b) whether, as a condition for the Participant to realize all or a portion of the benefit provided under the Award, one or more
Performance Goals must be achieved during such period as the Administrator specifies; (c) the length of the vesting and/or performance
period and, if different, the date on which payment of the benefit provided under the Award will be made; (d) with respect to Performance
Units, whether to measure the value of each unit in relation to a designated dollar value or the Fair Market Value of one or more Shares;
(e) with respect to Restricted Stock Units and Performance Units, whether to settle such Awards in cash, in Shares (including Restricted
Stock), or in a combination of cash and Shares; (f) whether dividends will be paid on Restricted Stock or Performance Shares, provided,
however, that any dividends paid on Restricted Stock or Performance Shares will be accumulated and paid if and only to the same
extent as the Restricted Stock or Performance Shares vest.
10. Annual Incentive
Awards
Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of an Annual Incentive Award, including but not limited to the Performance Goals,
performance period, the potential amount payable and the timing of payment; provided that the Administrator must require that payment
of all or any portion of the amount subject to the Annual Incentive Award is contingent on the achievement or partial achievement of
one or more Performance Goals during the period the Administrator specifies, although the Administrator may specify that all or a portion
of the Performance Goals subject to an Award are deemed achieved upon a Participant’s death, Disability, retirement, or such other
circumstances as the Administrator may specify, if applicable; and provided further that any performance period applicable
to an Annual Incentive Award must relate to a period of at least one year. Notwithstanding the foregoing, nothing hereunder shall preclude
or limit the Company or the Administrator from granting annual incentive awards that are solely payable in cash outside of the terms
of the Plan.
11. Long-Term Incentive
Awards
Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of a Long-Term Incentive Award, including but not limited to the Performance Goals,
performance period (which must be more than one year), the potential amount payable, and the timing of payment; provided that
the Administrator must require that payment of all or any portion of the amount subject to the Long-Term Incentive Award is contingent
on the achievement or partial achievement of one or more Performance Goals during the period the Administrator specifies, although the
Administrator may specify that all or a portion of the Performance Goals subject to an Award are deemed achieved upon a Participant’s
death, Disability, retirement, or such other circumstances as the Administrator may specify, if applicable, or such other circumstances
as the Administrator may specify. Notwithstanding the foregoing, nothing hereunder shall preclude or limit the Company or the Administrator
from granting long-term incentive awards that are solely payable in cash outside of the terms of the Plan.
12. Dividend Equivalent
Units
Subject to the terms of this Plan, the
Administrator will determine all terms and conditions of each award of Dividend Equivalent Units, including but not limited to whether:
(a) such Award will be granted in tandem with another Award; (b) payment of the Award will be made concurrently with dividend
payments or credited to an account for the Participant which provides for the deferral of such amounts until a stated time; (c) the
Award will be settled in cash or Shares; and (d) as a condition for the Participant to realize all or a portion of the benefit provided
under the Award, one or more Performance Goals must be achieved during such period as the Administrator specifies; provided that
Dividend Equivalent Units may not be granted in connection with an Option or Stock Appreciation Right; and provided further that
no Dividend Equivalent Unit granted in tandem with another Award shall include vesting provisions more favorable to the Participant than
the vesting provisions, if any, to which the tandem Award is subject; and provided further that no Dividend Equivalent
Unit relating to another Award shall provide for payment with respect to such other Award prior to its vesting.
13. Other Stock-Based
Awards
Subject to the terms of this Plan, the
Administrator may grant to a Participant shares of unrestricted Stock as replacement for other compensation to which the Participant
is entitled, such as in payment of director fees, in lieu of cash compensation, in exchange for cancellation of a compensation right,
or as a bonus.
14. Minimum Vesting
Periods
Notwithstanding any provision of the
Plan to the contrary, all Awards shall have a minimum vesting period of one year from the date of grant, provided that Awards with respect
to up to 5% of the total number of Shares reserved pursuant to Section 6(a) shall not be subject to such minimum vesting period.
For purposes of Awards granted to Non-Employee Directors, “one year” may mean the period of time from one annual shareholders
meeting to the next annual shareholders meeting, provided that such period of time is not less than 50 weeks.
15. Transferability
Awards are not transferable other than
by will or the laws of descent and distribution, unless and to the extent the Administrator allows a Participant to: (a) designate
in writing a beneficiary to exercise the Award or receive payment under the Award after the Participant’s death; (b) transfer
an Award to the former spouse of the Participant as required by a domestic relations order incident to a divorce; or (c) transfer
an Award; provided, however, that with respect to clause (c) above the Participant may not receive consideration for such a transfer
of an Award.
16. Termination of
Employment
(a) Effect
of Termination on Awards. Except as otherwise provided in any Award or employment
agreement or as determined by the Committee at the time of such termination:
(i) Upon
termination of employment or service for Cause, Participant shall forfeit all outstanding Awards immediately upon such termination. For
the avoidance of doubt, Participant will be prohibited from exercising any Stock Options or SARs on his or her termination date.
(ii) If
Participant’s employment or service terminates by reason of Participant’s death or Disability (at a time when Participant
could not have been terminated for Cause), Participant shall forfeit the unvested portion of any Award, and any vested Options or SARs
shall remain exercisable until the earlier of the Award’s original expiration date or 12 months from the date of Participant’s
termination.
(iii) If
Participant’s employment or service terminates for any reason other than Cause, death or Disability (at a time when Participant
could not have been terminated for Cause), then Participant shall forfeit the unvested portion of any Award, and any vested Options or
SARs shall remain exercisable until the earlier of the Award’s original expiration date or three months from the date of Participant’s
termination.
(b) Definition
of Termination. Unless determined otherwise by the Administrator or set forth in
an Award agreement, for purposes of the Plan and all Awards, the following rules shall
apply:
(i) A
Participant who transfers employment between the Company and its Affiliates, or between Affiliates, will not be considered to have terminated
employment;
(ii) A
Participant who ceases to be a Non-Employee Director because he or she becomes an employee of the Company or an Affiliate shall not be
considered to have ceased service as a Director with respect to any Award until such Participant’s termination of employment with
the Company and its Affiliates;
(iii) A
Participant who ceases to be employed by the Company or an Affiliate and immediately thereafter becomes a Non-Employee Director, a non-employee
director of an Affiliate, or a consultant to the Company or any Affiliate shall not be considered to have terminated employment until
such Participant’s service as a director of, or consultant to, the Company and its Affiliates has ceased; and
(iv) A
Participant employed by an Affiliate will be considered to have terminated employment when such entity ceases to be an Affiliate.
(v) A
Participant’s authorized leave of absence shall not constitute termination of employment. However, if a leave of absence exceeds
90 days, vesting of any outstanding Awards under this Plan may be suspended until Participant returns to work, as determined by
the Administrator.
Notwithstanding the foregoing, for purposes
of an Award that is subject to Code Section 409A, if a Participant’s termination of employment or service triggers the payment
of compensation under such Award, then the Participant will be deemed to have terminated employment or service upon his or her “separation
from service” within the meaning of Code Section 409A. Notwithstanding any other provision in this Plan or an Award to the
contrary, if any Participant is a “specified employee” within the meaning of Code Section 409A as of the date of his
or her “separation from service” within the meaning of Code Section 409A, then, to the extent required by Code Section 409A,
any payment made to the Participant on account of such separation from service shall not be made before a date that is six months
after the date of the separation from service.
17. Termination and
Amendment of Plan; Amendment, Modification or Cancellation of Awards
(a) Term
of Plan. Unless the Board earlier terminates this Plan pursuant to Section 17(b),
this Plan will terminate upon the date that is 10 years from the date of its most recent
approval by the Company’s shareholders.
(b) Termination
and Amendment. The Board or the Administrator may amend, alter, suspend, discontinue
or terminate this Plan at any time, subject to the following limitations:
(i) The
Board must approve any amendment of this Plan to the extent the Company determines such approval is required by: (A) prior action
of the Board, (B) applicable corporate law or (C) any other applicable law;
(ii) Shareholders
must approve any amendment of this Plan to the extent the Company determines such approval is required by: (A) Section 16 of
the Exchange Act, (B) the Code, (C) the listing requirements of any principal securities exchange or market on which the Shares
are then traded or (D) any other applicable law; and
(iii) Shareholders
must approve any of the following Plan amendments: (A) an amendment to materially increase any number of Shares specified in Section 6(a) (except
as permitted by Section 19), or (B) an amendment that would diminish the protections afforded by Section 17(e).
(c) Amendment,
Modification, Cancellation and Disgorgement of Awards.
(i) Except
as provided in Section 17(e) and subject to the requirements of this Plan, the Administrator may modify, amend or cancel any
Award; provided that, except as otherwise provided in the Plan or the Award agreement, any modification or amendment
that materially diminishes the rights of the Participant, or the cancellation of an Award, shall be effective only if agreed to by the
Participant or any other person(s) as may then have an interest in such Award, but the Administrator need not obtain Participant
(or other interested party) consent for the modification, amendment or cancellation of an Award pursuant to the provisions of subsection
(ii) or Section 19 or as follows: (A) to the extent the Administrator deems such action necessary to comply with any applicable
law or the listing requirements of any principal securities exchange or market on which the Shares are then traded; (B) to the extent
the Administrator deems necessary to preserve favorable accounting or tax treatment of any Award for the Company; or (C) to the
extent the Administrator determines that such action does not materially and adversely affect the value of an Award or that such action
is in the best interest of the affected Participant (or any other person(s) as may then have an interest in the Award). Notwithstanding
the foregoing, unless determined otherwise by the Administrator, any such amendment shall be made in a manner that will enable an Award
intended to be exempt from Code Section 409A to continue to be so exempt, or to enable an Award intended to comply with Code Section 409A
to continue to so comply.
(ii) Notwithstanding
anything to the contrary in an Award agreement, the Administrator shall have full power and authority to terminate or cause the Participant
to forfeit the Award, and require the Participant to disgorge to the Company any gains attributable to the Award, if the Participant
engages in any action constituting, as determined by the Administrator in its discretion, Cause for termination, or a breach of any Award
agreement or any other agreement between the Participant and the Company or an Affiliate concerning non-competition, non-solicitation,
confidentiality, trade secrets, intellectual property, non-disparagement or similar obligations.
(iii) Any
Awards granted pursuant to this Plan, and any Stock issued or cash paid pursuant to an Award, shall be subject to any recoupment or clawback
policy that is adopted by, or any recoupment or similar requirement otherwise made applicable by law, regulation or listing standards
to, the Company from time to time.
(d) Survival
of Authority and Awards. Notwithstanding the foregoing, the authority of the Board
and the Administrator under this Section 17 and to otherwise administer the Plan with
respect to then-outstanding Awards will extend beyond the date of this Plan’s termination.
In addition, termination of this Plan will not affect the rights of Participants with respect
to Awards previously granted to them, and all unexpired Awards will continue in force and
effect after termination of this Plan except as they may lapse or be terminated by their
own terms and conditions.
(e) Repricing
and Backdating Prohibited. Notwithstanding anything in this Plan to the contrary,
and except for the adjustments provided for in Section 19, neither the Administrator
nor any other person may (i) amend the terms of outstanding Options or SARs to reduce
the exercise or grant price of such outstanding Options or SARs; (ii) cancel outstanding
Options or SARs in exchange for Options or SARs with an exercise or grant price that is less
than the exercise or grant price of the original Options or SARs; or (iii) cancel outstanding
Options or SARs with an exercise or grant price above the current Fair Market Value of a
Share in exchange for cash or other securities. In addition, the Administrator may not make
a grant of an Option or SAR with a grant date that is effective prior to the date the Administrator
takes action to approve such Award.
(f) Foreign
Participation. To assure the viability of Awards granted to Participants employed
or residing in foreign countries, the Administrator may provide for such special terms as
it may consider necessary or appropriate to accommodate differences in local law, tax policy,
accounting or custom. Moreover, the Administrator may approve such supplements to, or amendments,
restatements or alternative versions of, this Plan as it determines is necessary or appropriate
for such purposes. Any such amendment, restatement or alternative versions that the Administrator
approves for purposes of using this Plan in a foreign country will not affect the terms of
this Plan for any other country. In addition, all such supplements, amendments, restatements
or alternative versions must comply with the provisions of Section 17(b)(ii).
18. Taxes
(a) Withholding. In
the event the Company or one of its Affiliates is required to withhold any Federal, state
or local taxes or other amounts in respect of any income recognized by a Participant as a
result of the grant, vesting, payment or settlement of an Award or disposition of any Shares
acquired under an Award, the Company may deduct (or require an Affiliate to deduct) from
any payments of any kind otherwise due the Participant cash, or with the consent of the Administrator,
Shares otherwise deliverable or vesting under an Award, to satisfy such tax or other obligations.
Alternatively, the Company or its Affiliate may require such Participant to pay to the Company
or its Affiliate, in cash, promptly on demand, or make other arrangements satisfactory to
the Company or its Affiliate regarding the payment to the Company or its Affiliate of the
aggregate amount of any such taxes and other amounts. If Shares are deliverable upon exercise
or payment of an Award, then the Administrator may permit a Participant to satisfy all or
a portion of the Federal, state and local withholding tax obligations arising in connection
with such Award by electing to (i) have the Company or its Affiliate withhold Shares
otherwise issuable under the Award, (ii) tender back Shares received in connection with
such Award or (iii) deliver other previously owned Shares, in each case having a Fair
Market Value equal to the amount to be withheld; provided that the amount
to be withheld in Shares may not exceed the total maximum statutory tax withholding obligations
associated with the transaction to the extent needed for the Company and its Affiliates to
avoid an accounting charge. If an election is provided, the election must be made on or before
the date as of which the amount of tax to be withheld is determined and otherwise as the
Administrator requires. In any case, the Company and its Affiliates may defer making payment
or delivery under any Award if any such tax may be pending unless and until indemnified to
its satisfaction.
(b) No
Guarantee of Tax Treatment. Notwithstanding any provisions of this Plan to the contrary,
the Company does not guarantee to any Participant or any other Person with an interest in
an Award that (i) any Award intended to be exempt from Code Section 409A shall
be so exempt, (ii) any Award intended to comply with Code Section 409A or Code
Section 422 shall so comply, or (iii) any Award shall otherwise receive a specific
tax treatment under any other applicable tax law, nor in any such case will the Company or
any Affiliate be required to indemnify, defend or hold harmless any individual with respect
to the tax consequences of any Award.
19. Adjustment and
Change of Control Provisions
(a) Adjustment
of Shares. If (i) the Company shall at any time be involved in a merger or
other transaction in which the Shares are changed or exchanged; (ii) the Company shall
subdivide or combine the Shares or the Company shall declare a dividend payable in Shares,
other securities (other than stock purchase rights issued pursuant to a shareholder rights
agreement) or other property; (iii) the Company shall effect a cash dividend the amount
of which, on a per Share basis, exceeds 10% of the Fair Market Value of a Share at the time
the dividend is declared, or the Company shall effect any other dividend or other distribution
on the Shares in the form of cash, or a repurchase of Shares, that the Board determines by
resolution is special or extraordinary in nature or that is in connection with a transaction
that the Company characterizes publicly as a recapitalization or reorganization involving
the Shares; or (iv) any other event shall occur, which, in the case of this clause (iv),
in the judgment of the Administrator necessitates an adjustment to prevent dilution or enlargement
of the benefits or potential benefits intended to be made available under this Plan, then
the Administrator shall, in such manner as it may deem equitable to prevent dilution or enlargement
of the benefits or potential benefits intended to be made available under this Plan, adjust
any or all of: (A) the number and type of Shares subject to this Plan (including the
number and type of Shares described in Sections 6(a) and (c)) and which may after
the event be made the subject of Awards; (B) the number and type of Shares subject to
outstanding Awards; (C) the grant, purchase, or exercise price with respect to any Award;
and (D) the Performance Goals of an Award. In any such case, the Administrator may also
(or in lieu of the foregoing) make provision for a cash payment to the holder of an outstanding
Award in exchange for the cancellation of all or a portion of the Award (without the consent
of the holder of an Award) in an amount determined by the Administrator effective at such
time as the Administrator specifies (which may be the time such transaction or event is effective).
However, in each case, with respect to Awards of incentive stock options, no such adjustment
may be authorized to the extent that such authority would cause this Plan to violate Code
Section 422(b). Further, the number of Shares subject to any Award payable or denominated
in Shares must always be a whole number. In any event, previously granted Options or SARs
are subject to only such adjustments as are necessary to maintain the relative proportionate
interest the Options and SARs represented immediately prior to any such event and to preserve,
without exceeding, the value of such Options or SARs.
Without limitation, in the
event of any reorganization, merger, consolidation, combination or other similar corporate transaction or event, whether or not constituting
a Change of Control (other than any such transaction in which the Company is the continuing corporation and in which the outstanding
Stock is not being converted into or exchanged for different securities, cash or other property, or any combination thereof), the Administrator
may substitute, on an equitable basis as the Administrator determines, for each Share then subject to an Award and the Shares subject
to this Plan (if the Plan will continue in effect), the number and kind of shares of stock, other securities, cash or other property
to which holders of Stock are or will be entitled in respect of each Share pursuant to the transaction.
Notwithstanding the foregoing,
in the case of a stock dividend (other than a stock dividend declared in lieu of an ordinary cash dividend) or subdivision or combination
of the Shares (including a reverse stock split), if no action is taken by the Administrator, adjustments contemplated by this subsection
that are proportionate shall nevertheless automatically be made as of the date of such stock dividend or subdivision or combination of
the Shares.
(b) Issuance
or Assumption. Notwithstanding any other provision of this Plan, and without affecting
the number of Shares otherwise reserved or available under this Plan, in connection with
any merger, consolidation, acquisition of property or stock or reorganization, the Administrator
may authorize the issuance or assumption of awards under this Plan upon such terms and conditions
as it may deem appropriate.
(c) Effect
of Change of Control.
(i) Upon
a Change of Control, if the successor or surviving corporation (or parent thereof) so agrees, then, without the consent of any Participant
(or other person with rights in an Award), some or all outstanding Awards may be assumed, or replaced with the same type of award with
similar terms and conditions, by the successor or surviving corporation (or parent thereof) in the Change of Control transaction. If
applicable, each Award which is assumed by the successor or surviving corporation (or parent thereof) shall be appropriately adjusted,
immediately after such Change of Control, to apply to the number and class of securities which would have been issuable to the Participant
upon the consummation of such Change of Control had the Award been exercised, vested or earned immediately prior to such Change of Control,
and such other appropriate adjustments in the terms and conditions of the Award shall be made. Upon the Participant’s termination
of employment (A) by the successor or surviving corporation without Cause, (B) by reason of death or Disability, or (C) by
the Participant for “good reason,” as defined in any employment, retention, change of control, severance or similar agreement
between the Participant and the Company or any Affiliate, if any, in any case within 24 months following the Change of Control, all of
the Participant’s Awards that are in effect as of the date of such termination shall be vested in full or deemed earned in full
(assuming target performance goals provided under such Award were met, if applicable) effective on the date of such termination.
(ii) To
the extent the purchaser, successor or surviving entity (or parent thereof) in the Change of Control transaction does not assume the
Awards or issue replacement awards as provided in clause (i) (including, for the avoidance of doubt, by reason of Participant’s
termination of employment in connection with the Change of Control), then immediately prior to the date of the Change of Control:
(A) Each
Option or SAR that is then held by a Participant who is employed by or in the service of
the Company or an Affiliate shall become immediately and fully vested, and, unless otherwise
determined by the Board or Administrator, all Options and SARs shall be cancelled on the
date of the Change of Control in exchange for a cash payment equal to the excess of the Change
of Control Price (as defined below) of the Shares covered by the Option or SAR that is so
cancelled over the purchase or grant price of such Shares under the Award; provided,
however, that all Options and SARs that have a purchase or grant price that is less
than the Change of Control Price shall be cancelled for no consideration;
(B) Restricted
Stock, Restricted Stock Units and Deferred Stock Rights (that are not Performance Awards)
that are not then vested shall vest;
(C) All
Performance Awards that are earned but not yet paid shall be paid, and all Performance Awards
for which the performance period has not expired shall be cancelled in exchange for a cash
payment equal to the amount that would have been due under such Award(s), valued at either
(i) based on the level of achievement of the Performance Goals that had been met on
the date immediately prior to the date of the Change in Control or (ii) assuming that
the target Performance Goals had been met at the time of such Change of Control, but prorated
based on the elapsed portion of the performance period as of the date of the Change of Control,
whichever shall result in the greater amount.
(D) All
Dividend Equivalent Units that are not vested shall vest (to the same extent as the Award
granted in tandem with the Dividend Equivalent Unit, if applicable) and be paid; and
(E) All
other Awards that are not vested shall vest and if an amount is payable under such vested
Award, such amount shall be paid in cash based on the value of the Award.
“Change of Control
Price” shall mean the per share price paid or deemed paid in the Change of Control transaction, as determined by the Administrator.
For purposes of this clause (ii), if the value of an Award is based on the Fair Market Value of a Share, Fair Market Value shall be deemed
to mean the Change of Control Price.
(d) Parachute
Payment Limitation.
(i) Except
as may be set forth in a written agreement by and between the Company and the holder of an Award, in the event that the Company’s
auditors determine that any payment or transfer by the Company under this Plan to or for the benefit of a Participant (a “Payment”)
would be nondeductible by the Company for federal income tax purposes because of the provisions concerning “excess parachute payments”
in Code Section 280G, then the aggregate present value of all Payments shall be reduced (but not below zero) to the Reduced Amount; provided that
the foregoing reduction in the Payments shall not apply if the After-Tax Value to the Participant of the Payments prior to reduction
in accordance herewith is greater than the After-Tax Value to the Participant if the Payments are reduced in accordance herewith. For
purposes of this Section 19(d), the “Reduced Amount” shall be the amount, expressed as a present value, which maximizes
the aggregate present value of the Payments without causing any Payment to be nondeductible by the Company because of Code Section 280G.
For purposes of determining the After-Tax Value of the Payments, the Participant shall be deemed to pay federal income taxes and employment
taxes at the highest marginal rate of federal income and employment taxation in the calendar year in which the Payments are to be made
and state and local income taxes at the highest marginal rates of taxation in the state and locality of the Participant’s domicile
for income tax purposes on the date the Payments are to be made, net of the maximum reduction in federal income taxes that may be obtained
from deduction of such state and local taxes.
(ii) If
the Company’s auditors determine that any Payment would be nondeductible by the Company because of Code Section 280G, then
the Company shall promptly give the Participant notice to that effect and a copy of the detailed calculation thereof and of the Reduced
Amount and the After-Tax Value. If the present value of all Payments must be reduced under paragraph (i) to the Reduced Amount,
then any such payment or benefit shall be reduced or eliminated by applying the following principles, in order: (1) the payment
or benefit with the higher ratio of the parachute payment value to present economic value (determined using reasonable actuarial assumptions)
shall be reduced or eliminated before a payment or benefit with a lower ratio; (2) the payment or benefit with the later possible
payment date shall be reduced or eliminated before a payment or benefit with an earlier payment date; and (3) cash payments shall
be reduced prior to non-cash benefits; provided that if the foregoing order of reduction or elimination would violate
Section 409A of the Code, then the reduction shall be made pro rata among the payment or benefits (on the basis of the relative
present value of the parachute payments). For purposes of this Section 19(d), present value shall be determined in accordance with
Code Section 280G(d)(4). All determinations made by the Company’s auditors under this Section 19(d) shall be binding
upon the Company and the Participant and shall be made within 60 days of the date when a Payment becomes payable or transferable. As
promptly as practicable following such determination hereunder, the Company shall pay or transfer to or for the benefit of the Participant
such amounts as are then due to him or her under this Plan and shall promptly pay or transfer to or for the benefit of the Participant
in the future such amounts as become due to him or her under this Plan.
(iii) As
a result of uncertainty in the application of Code Section 280G at the time of an initial determination by the Company’s auditors
hereunder, it is possible that Payments will have been made by the Company that should not have been made (an “Overpayment”)
or that additional Payments that will not have been made by the Company could have been made (an “Underpayment”), consistent
in each case with the calculation of the Reduced Amount hereunder. In the event that the Company’s auditors, based upon the assertion
of a deficiency by the Internal Revenue Service against the Company or the Participant that the auditors believe has a high probability
of success, determine that an Overpayment has been made, such Overpayment shall be treated for all purposes as a loan to the Participant
which he or she shall repay to the Company, together with interest at the applicable federal rate provided in Code Section 7872(f)(2); provided that
no amount shall be payable by the Participant to the Company if and to the extent that such payment would not reduce the amount subject
to taxation under Code Section 4999. In the event that the auditors determine that an Underpayment has occurred, such Underpayment
shall promptly be paid or transferred by the Company to or for the benefit of the Participant, together with interest at the applicable
federal rate provided in Code Section 7872(f)(2).
(iv) For
purposes of this Section 19(d), the term “Company” shall include affiliated corporations to the extent determined by
the Company’s auditors in accordance with Code Section 280G(d)(5).
(e) Certain
Modifications. Notwithstanding anything contained in this Section 19, the Board
may, in its sole and absolute discretion, amend, modify or rescind the provisions of this
Section 19 if it determines that the operation of this Section 19 may prevent a
transaction in which the Company, a Subsidiary or any Affiliate is a party from receiving
desired tax treatment, including without limitation requiring that each Participant receive
a replacement or substitute Award issued by the surviving or acquiring corporation.
20. Miscellaneous
(a) Code
Section 409A. Any Award granted under this Plan shall be provided or made in
such manner and at such time as complies with the applicable requirements of Code Section 409A
to avoid a plan failure described in Code Section 409A(a)(1), including, without limitation,
deferring payment to a specified employee or until a specified distribution event, as provided
in Code Section 409A(a)(2), and the provisions of Code Section 409A are incorporated
into this Plan to the extent necessary for any Award that is subject to Code Section 409A
to comply therewith.
(b) No
Right to Employment. The issuance of an Award shall not confer upon a Participant
any right with respect to continued employment or service with the Company or any Affiliate,
or the right to continue as a Director.
(c) No
Fractional Shares. No fractional Shares or other securities may be issued or delivered
pursuant to this Plan, and the Administrator may determine whether cash, other securities
or other property will be paid or transferred in lieu of any fractional Shares or other securities,
or whether such fractional Shares or other securities or any rights to fractional Shares
or other securities will be canceled, terminated or otherwise eliminated.
(d) Unfunded
Plan; Awards Not Includable for Benefits Purposes. This Plan is unfunded and does
not create, and should not be construed to create, a trust or separate fund with respect
to this Plan’s benefits. This Plan does not establish any fiduciary relationship between
the Company and any Participant or other person. To the extent any person holds any rights
by virtue of an Award granted under this Plan, such rights are no greater than the rights
of the Company’s general unsecured creditors. Income recognized by a Participant pursuant
to an Award shall not be included in the determination of benefits under any employee pension
benefit plan (as such term is defined in Section 3(2) of the Employee Retirement
Income Security Act of 1974, as amended) or group insurance or other benefit plans applicable
to the Participant which are maintained by the Company or any Affiliate, except as may be
provided under the terms of such plans or determined by resolution of the Board.
(e) Requirements
of Law and Securities Exchange. The granting of Awards and the issuance of Shares
in connection with an Award are subject to all applicable laws, rules and regulations
and to such approvals by any governmental agencies or national securities exchanges as may
be required. Notwithstanding any other provision of this Plan or any award agreement, the
Company has no liability to deliver any Shares under this Plan or make any payment unless
such delivery or payment would comply with all applicable laws and the applicable requirements
of any securities exchange or similar entity, and unless and until the Participant has taken
all actions required by the Company in connection therewith. The Company may impose such
restrictions on any Shares issued under the Plan as the Company determines necessary or desirable
to comply with all applicable laws, rules and regulations or the requirements of any
national securities exchanges.
(f) Governing
Law; Venue. This Plan, and all agreements under this Plan, will be construed in
accordance with and governed by the laws of the State of Delaware, without reference to any
conflict of law principles. Any legal action or proceeding with respect to this Plan, any
Award or any award agreement, or for recognition and enforcement of any judgment in respect
of this Plan, any Award or any award agreement, may only be brought and determined in a court
sitting in Fairfield County, CT.
(g) Limitations
on Actions. Any legal action or proceeding with respect to this Plan, any Award
or any award agreement, must be brought within one year (365 days) after the day the
complaining party first knew or should have known of the events giving rise to the complaint.
(h) Construction. Whenever
any words are used herein in the masculine, they shall be construed as though they were used
in the feminine in all cases where they would so apply; and wherever any words are used in
the singular or plural, they shall be construed as though they were used in the plural or
singular, as the case may be, in all cases where they would so apply. Titles of sections
are for general information only, and this Plan is not to be construed with reference to
such titles. The title, label or characterization of an Award in an award agreement or in
the Company’s public filings or other disclosures shall not be determinative as to
which specific Award type is represented by the award agreement. Instead, the Administrator
may determine which specific type(s) of Award(s) is (are) represented by any award
agreement, at the time such Award is granted or at any time thereafter.
(i) Severability. If
any provision of this Plan or any award agreement or any Award (a) is or becomes or
is deemed to be invalid, illegal or unenforceable in any jurisdiction, or as to any person
or Award, or (b) would cause this Plan, any award agreement or any Award to violate
or be disqualified under any law the Administrator deems applicable, then such provision
should be construed or deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the Administrator, materially
altering the intent of this Plan, award agreement or Award, then such provision should be
stricken as to such jurisdiction, person or Award, and the remainder of this Plan, such award
agreement and such Award will remain in full force and effect.
EX-10.2 — EXHIBIT 10.2
EX-10.2
Filename: tm2611183d1_ex10-2.htm · Sequence: 3
Exhibit 10.2
FuelCell Energy, Inc.
2018 Employee Stock
Purchase Plan
As Amended and Restated
Effective as of April 2, 2026
1. Purpose
The FuelCell Energy, Inc. 2018
Employee Stock Purchase Plan (the “Plan”) provides a method whereby employees of FuelCell Energy, Inc. (the “Company”)
and participating subsidiaries will have an opportunity to acquire a proprietary interest in the Company through the purchase of shares
of the Company’s $.0001 par value common stock (the “Common Stock”). The Company intends that the Plan qualify
as an “employee stock purchase plan” under Section 423 of the Internal Revenue Code of 1986, as amended (the “Code”).
The provisions of the Plan shall, accordingly, be construed so as to extend and limit participation in a manner consistent with the requirements
of that Section of the Code.
2. Eligible Employees
(a) All
employees of the Company or any of its participating subsidiaries shall be eligible to receive
options under this Plan to purchase the Company’s Common Stock (“eligible
employees”). Persons who become eligible employees after the administrative deadline
to elect participation in an Offering Period (as provided under Section 6) shall be
eligible to participate in the Plan on the first day of the next succeeding Offering Period
on which options are granted to eligible employees under the Plan. In no event may an employee
be granted an option if such employee, immediately after the option is granted, owns stock
possessing five percent (5%) or more of the total combined voting power or value of all classes
of stock of the Company or of its parent corporation or subsidiary corporation as the terms
“parent corporation” and “subsidiary corporation” are defined in
Section 424(e) and (f) of the Code. For purposes of determining stock ownership
under this paragraph, the rules of Section 424(d) of the Code shall apply
and stock which the employee may purchase under outstanding options shall be treated as stock
owned by the employee.
(b) For
the purpose of this Plan, the Committee may determine, in its discretion, in advance of any
Offering Period, that any or all of the following groups of employees shall be ineligible
to participate in the Offering Period: (i) employees whose customary employment is for
not more than twenty (20) hours per week, (ii) employees whose customary employment
is for not more than five (5) months in any calendar year, or (iii) employees who
have been employed less than two (2) years (or, in each case, such lesser number of
hours or period as specified by the Committee).
(c) Notwithstanding
the foregoing, employees of the Company or a participating subsidiary who are citizens or
residents of a foreign jurisdiction (without regard to whether they are also citizens of
the United States or resident aliens within the meaning of Code Section 7701(b)(1)(A))
shall not be considered eligible employees for an Offering Period if (i) the grant of
a purchase right under the Plan to such citizen or resident is prohibited under the laws
of such jurisdiction or (ii) compliance with the laws of the foreign jurisdiction would
cause the Plan or Offering Period to violate the requirements of Code Section 423.
3. Stock Subject to the Plan
The stock subject to the options granted
hereunder shall be shares of the Company’s authorized but unissued Common Stock or shares of Common Stock reacquired by the Company,
including shares purchased in the open market. The aggregate number of shares which may be issued pursuant to the Plan is 300,078, subject
to increase or decrease by reason of stock split-ups, reclassifications, stock dividends, changes in par value and the like. If the number
of shares of Common Stock reserved and available for any Offering Period (as defined hereto) is insufficient to satisfy all purchase
requirements for that Offering Period, the reserved and available shares for that Offering Period shall be apportioned among participating
employees in proportion to their options. If any option granted under the Plan shall expire or terminate for any reason without having
been exercised in full or shall cease for any reason to be exercisable in whole or in part, the unpurchased shares subject thereto shall
again be available under the Plan.
4. Offering Periods and Stock
Options
(a) The
Plan shall be implemented through a series of “Offering Periods.” An Offering
Period shall mean the period of time (up to a maximum of twenty-seven (27) months) determined
by the Committee during which payroll deductions are accumulated for each participating employee.
Offering Periods will initially commence on the first business day coincident with or immediately
following January 1 and July 1 of each year and end on the last business day coincident
with or immediately prior to June 30 or December 31 next following the commencement
date; provided that the Committee, in its sole discretion may change the duration and/or
start and end dates of any future Offering Period. Each Offering Period includes only regular
paydays falling within it.
(b) On
the first business day of each Offering Period, the Company will grant to each eligible employee
who is then a participant in the Plan an option to purchase on the last day of such Offering
Period at the Option Exercise Price, as provided in this paragraph (b), that number of full
shares of Common Stock reserved for the purpose of the Plan as his or her accumulated payroll
deductions on the last day of the Offering Period (including any amount carried forward pursuant
to Article 8 hereof) will pay for at the Option Exercise Price; provided that such employee
remains eligible to participate in the Plan throughout such Offering Period in accordance
with the terms of the Plan. The “Option Exercise Price” for each Offering
Period shall be the lesser of (i) eighty-five percent (85%) of the Fair Market Value
of the Common Stock on the first business day of the Offering Period, or (ii) eighty-five
percent (85%) of the Fair Market Value of the Common Stock on the last business day of the
Offering Period, in either case rounded up to avoid impermissible trading fractions.
(c) In
the event of an increase or decrease in the number of outstanding shares of Common Stock
through stock split-ups, reclassifications, stock dividends, changes in par value and the
like, an appropriate adjustment shall be made in the number of shares and Option Exercise
Price per share provided for under the Plan, either by a proportionate increase in the number
of shares and proportionate decrease in the Option Exercise Price per share, or by a proportionate
decrease in the number of shares and a proportionate increase in the Option Exercise Price
per share, as may be required to enable an eligible employee who is then a participant in
the Plan to acquire on the last day of the Offering Period that number of full shares of
Common Stock as his or her accumulated payroll deductions on such date will pay for at the
Option Exercise Price, as so adjusted.
(d) For
purposes of this Plan, the term “Fair Market Value” means per share of
Common Stock on a particular date, (i) if the shares are listed on a national securities
exchange, the last sales price on that date on the national securities exchange on which
the Common Stock is then traded, or if no sales of Common Stock occur on such date, then
on the last preceding date on which there was a sale on such exchange; or (ii) if the
shares are not listed on a national securities exchange, but are traded in an over-the-counter
market, the last sales price (or, if there is no last sales price reported, the average of
the closing bid and asked prices) for the shares on that date, or on the last preceding date
on which there was a sale of shares on that market; or (iii) if the shares are neither
listed on a national securities exchange nor traded in an over-the-counter market, the price
determined by the Committee, in its discretion.
(e) For
purposes of this Plan the term “business day” as used herein means a day
on which there is trading on the national securities exchange on which the Common Stock is
listed or on Nasdaq, whichever is applicable pursuant to the preceding paragraph.
(f) No
employee shall be granted an option which permits his or her rights to purchase Common Stock
under the Plan and any similar plans of the Company or any parent or participating subsidiary
corporations to accrue at a rate which exceeds $25,000 of fair market value of such stock
(determined at the time such option is granted) for each calendar year in which such option
is outstanding at any time. The purpose of the limitation in the preceding sentence is to
comply with and shall be construed in accordance with Section 423(b)(8) of the
Code. If the participant’s accumulated payroll deductions on the last day of the Offering
Period would otherwise enable the participant to purchase Common Stock in excess of the Section 423(b)(8) limitation
described in this paragraph, the excess of the amount of the accumulated payroll deductions
over the aggregate purchase price of the shares actually purchased shall be promptly refunded
to the participant by the Company, without interest.
(g) Unless
otherwise specified by the Committee, each Offering Period to eligible employees shall be
deemed a separate offering, even if the dates and other terms of any other Offering Period(s) are
identical, and the provisions of the Plan will separating apply to each offering. To the
extent permitted by Treasury Regulation Section 1.423-2(a)(1), the terms of each separate
offering need not be identical, provided that, the terms of the Plan and an offering together
satisfy Treasury Regulation Sections 1.423-2(a)(2) and (a)(3). Except for differences
that are otherwise consistent with Code Section 423(b)(5), all eligible employees who
participate in the Plan shall have the same rights and privileges under the Plan.
5. Exercise of Option
Each eligible employee who continues
to be a participant in the Plan on the last day of an Offering Period shall be deemed to have exercised his or her option on such date
and shall be deemed to have purchased from the Company such number of full shares of Common Stock reserved for the purpose of the Plan
as his or her accumulated payroll deductions on such date, plus any amount carried forward pursuant to Article 8 hereof, will pay
for at the Option Exercise Price, but in no event may an employee purchase shares of Common Stock in excess of 1,000 shares of Common
Stock in any single Offering Period. If a participant is not an eligible employee on the last day of an Offering Period and throughout
an Offering Period, he or she shall not be entitled to exercise his or her option. All options issued under the Plan shall, unless exercised
as set forth herein, expire at the end of the Offering Period during which such options were issued.
6. Authorization for Entering
Plan
(a) An
eligible employee may enter the Plan by timely enrolling online with the third-party plan
administrator designated by the Committee (the “Plan Administrator”):
(i) stating
the amount to be deducted regularly from his or her pay; and
(ii) authorizing
the purchase of stock for him or her in each Offering Period in accordance with the terms
of the Plan.
Such authorization must be
completed by the deadline established by the Plan Administrator (or the Committee), follow any other procedures for enrollment in the
Plan as may be established by the Plan Administrator (or the Committee), and shall take effect only if the employee is an eligible employee
on the first business day of such Offering Period. An eligible employee who does not timely submit or properly complete the enrollment
forms, in accordance with the procedures established by the Plan Administrator (or the Committee) shall not participate in the Plan for
that Offering Period, but shall be eligible to elect to participate in the Plan for any subsequent Offering Period, provided he is an
eligible employee at such time and timely completes the enrollment forms.
(b) The
Company will accumulate and hold for the eligible employee’s account the amounts deducted
from his or her pay. No interest will be paid thereon. Participating employees may not make
any separate cash payments into their account.
(c) Unless
an eligible employee files a new Authorization or withdraws from the Plan, his or her deductions
and purchases under the Authorization he or she has on file under the Plan will continue
in effect for subsequent Offering Periods as long as the Plan remains in effect. An eligible
employee may increase or decrease the amount of his or her payroll deductions as of the first
day of the next succeeding Offering Period, except as provided in Section 9 below, by
changing his or her authorized deduction online with the Plan Administrator (or the Committee)
before the deadline established by the Plan Administrator (or the Committee) for the next
succeeding Offering Period.
7. Maximum Amount of Payroll
Deductions
An eligible employee may authorize payroll
deductions in any whole dollar amount up to, but not more than, fifteen percent (15%) of his or her base pay; provided, however, that
the minimum deduction in respect of any payroll period shall be five dollars ($5); and provided further that the maximum amount shall
be reduced to meet the requirements of Section 4(f) hereof. Base pay means base salary or regular straight-time earnings (if
hourly paid) and shall exclude all other payments including commissions, overtime, bonuses, shift differential and other special payments.
8. Unused Payroll Deductions
Only full shares of Common Stock may
be purchased. Any balance remaining in an eligible employee’s account after a purchase and at the end of an Offering Period will
be reported to the employee. The eligible employee may elect to carry forward to the next Offering Period such balance solely to the
extent such balance represents a fractional share of Common Stock or receive a refund of such excess in a single cash payment without
interest. An employee’s election to receive a refund will not have any effect on the employee’s participation in the Plan
and will not be governed by the provisions of Section 10.
9. Change in Payroll Deductions
Any eligible employee may decrease his
or her payroll deductions no more than one (1) time during an Offering Period subject to the limitations set forth in Section 7
hereof, in accordance with procedures established by the Plan Administrator (or the Committee). Any such change shall become effective
as soon as reasonably practicable following the Plan Administrator’s (or the Committee’s) receipt of such change request.
An eligible employee who decreases his or her payroll deductions to zero during the course of an Offering Period may still remain a participant
during the Offering Period so long as the eligible employee does not make a withdrawal pursuant to Section 10(a) hereof. A
participant’s decrease in payroll deductions to zero shall have no effect on his or her eligibility to participate in any subsequent
Offering Period, provided he is still an eligible employee at such time. In order to resume participation in a subsequent Offering Period,
such individual must reenroll in the Plan in accordance with the requirements herein for participation and by the deadline for the next
Offering Period.
10. Withdrawal from the Plan
(a) An
employee may withdraw from the Plan and withdraw all but not less than all of the payroll
deductions credited to his or her account under the Plan at a time and in a manner that is
in accordance with the procedures established by the Plan Administrator (or the Committee)
from time to time. In which event the Company will promptly refund without interest the entire
balance of such employee’s deductions not theretofore used to purchase Common Stock
under the Plan.
(b) If
employee withdraws from the Plan, the employee’s rights under the Plan will be terminated
and no further payroll deductions will be made. To reenter, such an employee must file a
new Authorization within a reasonable period of time, as designated by the Plan Administrator
(or the Committee), prior to the start of the next Offering Period. Such Authorization will
become effective at the beginning of the next Offering Period provided that he or she is
an eligible employee on the first business day of the Offering Period.
11. Issuance of Stock
Shares of Common Stock issued to participants
will be delivered as soon as practicable after each Offering Period. Common Stock purchased under the Plan will be issued only in the
name of the employee, or, if the employee’s Authorization so specifies, in the name of the employee and another person of legal
age as joint tenants with rights of survivorship.
The Committee may permit or require
that Common Stock acquired pursuant to a purchase under the Plan be deposited directly with a broker designated by the Committee or to
another designated agent of the Committee, and may utilize electronic or automated methods of share transfer.
12. No Transfer or Assignment
of Employee’s Rights
Neither payroll deductions credited
to an employee’s account nor any rights with regard to the exercise of an option or to receive stock under the Plan may be assigned,
transferred, pledged, or otherwise disposed of in any way by the employee. Any such attempted assignment, transfer, pledge, or other
disposition shall be without effect, except that the Company may treat such act as an election to withdraw funds in accordance with Article 10.
Any option granted to an eligible employee may be exercised only by him or her, except as provided in Article 13 in the event of
an employee’s death.
13. Termination of Employee’s
Rights
(a) Except
as set forth in the last paragraph of this Article 13, an eligible employee’s
rights under the Plan will automatically terminate when he or she ceases to be an employee
because of retirement, resignation, lay-off, discharge, death, change of status, failure
to remain in the customary employ of the Company for greater than twenty (20) hours per week,
cessation of his or her subsidiary to be a subsidiary or a participating subsidiary, or for
any other reason. A Withdrawal Notice will be considered as having been received from the
employee on the day his or her employment ceases, and all payroll deductions not used to
purchase Common Stock will be refunded.
(b) If
an employee’s payroll deductions are interrupted by any legal process, a Withdrawal
Notice will be considered as having been received from him or her on the day the interruption
occurs.
(c) Upon
termination of the participating employee’s employment because of death (provided that
death occurs within three (3) months of the purchase date for the Offering Period),
the employee’s beneficiary (as defined in Article 14) shall have the right to
elect, by written notice given to the Treasurer of the Company prior to the expiration of
the thirty (30) day period commencing with the date of the death of the employee, either
(i) to withdraw, without interest, all of the payroll deductions credited to the employee’s
account under the Plan, or (ii) to exercise the employee’s option for the purchase
of shares of Common Stock on the last day of the related Offering Period for the purchase
of that number of full shares of Common Stock reserved for the purpose of the Plan which
the accumulated payroll deductions in the employee’s account at the date of the employee’s
death will purchase at the applicable Option Exercise Price (subject to the maximum number
set forth in Article 5), and any excess in such account will be returned to said beneficiary.
In the event that no such written notice of election shall be duly received by the Treasurer
of the Company, the beneficiary shall automatically be deemed to have elected to withdraw
the payroll deductions credited to the employee’s account at the date of the employee’s
death and the same will be paid promptly to said beneficiary, without interest.
14. Designation of Beneficiary
A participating employee may file a
written designation of a beneficiary who is to receive any Common Stock and/or cash in case of his or her death. Such designation of
beneficiary may be changed by the employee at any time by written notice. Upon the death of a participating employee and upon receipt
by the Company of proof of the identity and existence at the employee’s death of a beneficiary validly designated by him or her
under the Plan, the Company shall deliver such Common Stock and/or cash to such beneficiary. In the event of the death of a participating
employee and in the absence of a beneficiary validly designated under the Plan who is living at the time of such employee’s death,
the Company shall deliver such Common Stock and/or cash to the executor or administrator of the estate of the employee, or if, to the
knowledge of the Company, no such executor or administrator has been appointed, the Company, in the discretion of the Committee, may
deliver such Common Stock and/or cash to the spouse or to any one or more dependents of the employee as the Committee may designate.
No beneficiary shall, prior to the death of the employee by whom he or she has been designated, acquire any interest in the Common Stock
or cash credited to the employee under the Plan.
15. Termination and Amendments
to Plan
(a) The
Plan may be terminated at any time by the Committee, but such termination shall not affect
options then outstanding under the Plan. Notwithstanding the foregoing, it will terminate
when all of the shares of Common Stock reserved for the purposes of the Plan have been purchased.
Upon such termination or any other termination of the Plan, all payroll deductions not used
to purchase Common Stock will be refunded to the affected eligible employee as soon as reasonably
practicable.
(b) The
Board of Directors reserves the right to amend the Plan from time to time in any respect;
provided, however, that no amendment shall be effective without stockholder approval if the
amendment would (a) except as provided in Articles 3, 4, 23 and 24, increase the aggregate
number of shares of Common Stock to be offered under the Plan, (b) change the class
of employees eligible to receive options under the Plan, if such action would be treated
as the adoption of a new plan for purposes of Section 423(b) of the Code, (c) cause
Rule 16b-3 under the Securities Exchange Act of 1934, or a successor rule, to become
inapplicable to the Plan or (d) otherwise require shareholder approval to comply with
Section 423 of the Code.
16. Limitations of Sale of
Stock Purchased Under the Plan
The Plan is intended to provide shares
of Common Stock for investment and not for resale. The Company does not, however, intend to restrict or influence any employee in the
conduct of his or her own affairs. Employees, therefore, may sell Common Stock purchased under the Plan at any time, subject to compliance
with any applicable federal or state securities laws and subject to any restrictions imposed under Article 26 hereof to ensure that
tax withholding obligations are satisfied. THE EMPLOYEE ASSUMES THE RISK OF ANY MARKET FLUCTUATIONS IN THE PRICE OF THE STOCK.
17. Company’s Payment
of Expenses Related to Plan
Unless otherwise determined by the Committee,
the Company will bear all costs of administering and carrying out the Plan. Notwithstanding the foregoing, unless otherwise determined
by the Committee, when any Common Stock in a participating employee’s account with the Plan Administrator is sold or the participating
employee ceases to be an employee of the Company or a participating subsidiary, the individual is responsible for payment of any commissions,
service charges or other costs or fees incurred on account of such sale or ongoing administration of his or her account with the Plan
Administrator.
18. Participating Subsidiaries
The term “participating subsidiaries”
shall mean any subsidiary of the Company that is designated by the Committee (as defined in Article 19) to participate in the Plan.
The Committee shall have the power to make such designation before or after the Plan is approved by the shareholders.
19. Administration of the
Plan
(a) The
Plan shall be administered by a committee (the “Committee”) which shall
be the Compensation and Leadership Development Committee of the Board of Directors or another
committee appointed by the Board of Directors. The Committee shall consist of not less than
two members of the Company’s Board of Directors, all of whom shall qualify as non-employee
directors within the meaning of Rule 16b-3 under the Securities Exchange Act of 1934
or any successor rule. The Board of Directors may from time to time remove members from,
or add members to, the Committee. Vacancies on the Committee, howsoever caused, shall be
filled by the Board of Directors. No member of the Committee shall be eligible to participate
in the Plan while serving as a member of the Committee. In the event the Board of Directors
fails to appoint or refrains from appointing a Committee, the Board of Directors shall have
all power and authority to administer the Plan. In such event, the word “Committee”
wherever used herein shall be deemed to mean the Board of Directors. Notwithstanding the
foregoing, the Committee may delegate to one or more individuals (including, for the avoidance
of doubt, any third-party service provider) any or all of its respective authority, duties
and functions hereunder relating to the operation and administration of the Plan.
(b) The
Committee shall select one of its members as chairman, and shall hold meetings at such times
and places as it may determine. Acts by a majority of the Committee, or acts reduced to or
approved in writing by a majority of the members of the Committee, shall be the valid acts
of the Committee.
(c) The
interpretation and construction by the Committee of any provisions of the Plan or of any
option granted under it shall be final. The Committee may from time to time adopt such rules and
regulations for carrying out the Plan as it may deem best. With respect to persons subject
to Section 16 of the Securities and Exchange Act of 1934, as amended, transactions under
the Plan are intended to comply with all applicable conditions of Rule 16b-3 or its
successors under said Act. To the extent any provision of the Plan or action by the Committee
fails to so comply, it shall be deemed null and void, to the extent permitted by law and
deemed advisable by that Committee.
(d) Periodically,
the Committee or its designee shall prepare and distribute to each participating employee
in the Plan a report containing the amount of the participating employee’s accumulated
payroll deductions as of the last day of the Offering Period, the Option Exercise Price for
such Offering Period, the number of shares of Common Stock purchased by the participating
employee with the participating employee’s accumulated payroll deductions, and the
amount of any unused payroll deductions either to be carried forward to the next Offering
Period, or returned to the participating employee without interest.
(e) No
member of the Board of Directors or the Committee shall be liable for any action or determination
made in good faith with respect to the Plan or any option granted under it. The Company shall
indemnify each member of the Board of Directors and the Committee to the fullest extent permitted
by law with respect to any claim, loss, damage or expense (including counsel fees) arising
in connection with their responsibilities under this Plan.
20. Optionees Not Shareholders
Neither the granting of an option to
an eligible employee nor the deductions from his or her pay shall constitute such employee a stockholder of the Company with respect
to the shares covered by such option until such shares of Common Stock have been purchased by and issued to him or her under the Plan.
21. Application of Funds
The proceeds received by the Company
from the sale of Common Stock pursuant to options granted under the Plan may be used for any corporate purposes, and the Company shall
not be obligated to segregate participating employees’ payroll deductions.
22. Governmental Regulation
(a) The
Company’s obligation to sell and deliver shares of the Company’s Common Stock
under this Plan is subject to the approval of any governmental authority required in connection
with the authorization, issuance or sale of such stock.
(b) In
this regard, the Board of Directors may, in its discretion, require as a condition to the
exercise of any option that a Registration Statement under the Securities Act of 1933, as
amended, with respect to the shares of Common Stock reserved for issuance upon exercise of
the option shall be effective.
(c) The
Plan shall be construed in accordance with and governed by the laws of the State of Delaware,
without reference to any conflict of law principles thereof. Any legal action or proceeding
with respect to this Plan must be brought within one year (365 days) after the day the complaining
party first knew or should have known of the events giving rise to the complaint.
23. Effect of Changes of
Common Stock
If the Company should subdivide or reclassify
the Common Stock which has been or may be optioned under the Plan, or should declare thereon any dividend payable in shares of such Common
Stock, or should take any other action of a similar nature affecting such Common Stock, then the number and class of shares of Common
Stock which may thereafter be optioned (in the aggregate and to any individual participating employee) shall be adjusted accordingly.
24. Merger or Consolidation
In the event of a corporate transaction,
the Board of Directors (or the Committee) may provide for any of, or a combination of any of, the following: (a) each purchase right
shall be assumed or an equivalent purchase right shall be substituted by the successor entity or parent or subsidiary of such successor
entity, (b) a date selected by the Board of Directors (or the Committee) on or before the date of consummation of such corporate
transaction shall be treated as a purchase date and all outstanding purchase rights shall be exercised on such date, (c) all outstanding
purchase rights shall terminate and the accumulated payroll deductions will be refunded to each Participant upon or immediately prior
to the corporate transaction, or (d) outstanding purchase rights shall continue unchanged. For purposes of the Plan, a “corporate
transaction” shall have the meaning given to it in The FuelCell Energy, Inc. 2018 Omnibus Incentive Plan, as amended from
time to time, or any successor plan thereto. Notwithstanding the foregoing, no corporate transaction shall be deemed to have occurred
unless the transaction also meets the definition of a “corporate transaction” described in Treasury Regulation Section 1.424-1(a)(3).
25. Notice to Company of
Disqualifying Disposition
By electing to participate in the Plan,
each participant agrees to promptly give to the Company notice in writing of any Common Stock disposed of within two years after the
first day of the Offering Period on which the related option was granted showing the number of such shares disposed of. Each participant
further agrees to provide any information about such a transfer as may be requested by the Company or any subsidiary corporation in order
to assist it in complying with the tax laws. Such dispositions generally are treated as “disqualifying dispositions” under
Sections 421 and 424 of the Code, which have certain tax consequences to participants and to the Company and its participating subsidiaries.
26. Withholding of Additional
Federal Income Tax
By electing to participate in the Plan,
each participant acknowledges that the Company and its participating subsidiaries are required to withhold taxes with respect to the
amounts deducted from the participant’s compensation and accumulated for the benefit of the participant under the Plan, and each
participant agrees that the Company and its participating subsidiaries may deduct additional amounts from the participant’s compensation,
when amounts are added to the participant’s account, used to purchase Common Stock or refunded, in order to satisfy such withholding
obligations. Each participant further acknowledges that when Common Stock is purchased under the Plan the Company and its participating
subsidiaries may be required to withhold taxes with respect to all or a portion of the difference between the fair market value of the
Common Stock purchased and its purchase price, and each participant agrees that such taxes may be withheld from compensation otherwise
payable to such participant. It is intended that tax withholding will be accomplished in such a manner that the full amount of payroll
deductions elected by the participant under the Plan will be used to purchase Common Stock. However, if amounts sufficient to satisfy
applicable tax withholding obligations have not been withheld from compensation otherwise payable to any participant, then, notwithstanding
any other provision of the Plan, the Company may withhold such taxes from the participant’s accumulated payroll deductions and
apply the net amount to the purchase of Common Stock, unless the participant pays to the Company, prior to the exercise date, an amount
sufficient to satisfy such obligations. Each participant further acknowledges that the Company and its participating subsidiaries may
be required to withhold taxes in connection with the disposition of stock acquired under the Plan and agrees that the Company or any
participating subsidiary may take whatever action it considers appropriate to satisfy such withholding requirements, including deducting
from compensation otherwise payable to such participant an amount sufficient to satisfy such withholding requirements or conditioning
any disposition of Common Stock by the participant upon the payment to the Company or such subsidiary of an amount sufficient to satisfy
such withholding requirements.
27. Effective Date
This Plan originally became effective
on April 5, 2018 (the “Effective Date”), the date on which the Company’s shareholders approved this Plan
at the 2018 annual shareholders meeting. This Plan was amended and restated effective as of May 22, 2023, the date on which the
Company’s shareholders approved such amendment and restatement at the 2023 annual shareholders meeting. This Plan is again being
amended and restated effective as of April 2, 2026, subject to approval by the Company’s shareholders at the Company’s
2026 annual shareholders meeting.
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