UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): April 5, 2018
FUELCELL ENERGY, INC.
(Exact Name of Registrant as Specified in Charter)
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Delaware |
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1-14204 |
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06-0853042 |
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(State or Other Jurisdiction of Incorporation) |
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(Commission File Number) |
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(IRS Employer Identification No.) |
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3 Great Pasture Road, Danbury, Connecticut |
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06810 |
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(Address of Principal Executive Offices) |
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(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:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
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. ☐
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Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers . |
At the FuelCell Energy, Inc. (the “Company”) 2018 Annual Meeting of Stockholders, which was held on April 5, 2018 (the “Annual Meeting”), the Company’s stockholders approved (i) the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “2018 Incentive Plan”) and (ii) the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan (the “2018 ESPP”). Additional information regarding the results of the Annual Meeting is set forth below under Item 5.07.
2018 Omnibus Incentive Plan
The 2018 Incentive Plan provides that a total of 4,000,000 shares of the Company’s common stock may be issued thereunder. The 2018 Incentive Plan authorizes grants of stock options, stock appreciation rights, restricted stock, restricted stock units, performance shares, performance units and incentive awards to key employees, directors, consultants and advisors.
The Company cannot currently determine the benefits, if any, to be paid under the 2018 Incentive Plan in the future to the officers of the Company, including the Company’s named executive officers.
The 2018 Incentive Plan is described in detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on February 16, 2018. A copy of the 2018 Incentive Plan is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein. The description of the 2018 Incentive Plan set forth above does not purport to be complete and is qualified in its entirety by reference to such materials.
2018 Omnibus Incentive Plan Award Agreements
In connection with the adoption of the 2018 Incentive Plan, on April 5, 2018, the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) approved forms of Restricted Stock Award Agreement (for U.S. employees), Restricted Stock Unit Award Agreement (for U.S. employees) and Option Award Agreement (for non-employee directors) for the issuance of awards under the 2018 Incentive Plan (collectively, the “Agreements”). Copies of the Agreements are filed as Exhibits 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and incorporated herein by reference.
Grants of Restricted Stock Unit Awards
On April 5, 2018, following the approval of the 2018 Incentive Plan, the Committee approved grants of restricted stock unit (“RSU”) awards to the Company’s named executive officers, subject to the terms and conditions of the 2018 Incentive Plan and the form of Restricted Stock Unit Award Agreement filed herewith as Exhibit 10.3. The value of the RSU awards to the Company’s named executive officers are as follows: Mr. Bottone – $550,000 (308,989 RSUs); Mr. Bishop – $300,000 (168,540 RSUs); Ms. Arasimowicz – $300,000 (168,540 RSUs); and Mr. Rauseo – $300,000 (168,540 RSUs). The RSU awards may be settled in cash or in shares of the Company’s common stock, at the discretion of the Committee. The RSU awards vest over a three-year employment period beginning on the grant date at a rate of 33.3% for each year of continuous employment with the Company. The foregoing summary of the RSU awards does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Restricted Stock Unit Award Agreement, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
Grants of Special Restricted Stock Unit Awards
In addition to the RSU awards discussed above, on April 5, 2018, following the approval of the 2018 Incentive Plan, the Committee also approved a separate grant of RSU awards to the Company’s named executive officers, subject to the terms and conditions of the 2018 Incentive Plan and the form of Restricted Stock Unit Award Agreement filed herewith as Exhibit 10.3 (the “Special RSU Awards”). The value of these Special RSU Awards are as follows: Mr. Bottone – $178,000 (100,000 RSUs); Mr. Bishop – $178,000 (100,000 RSUs); Ms. Arasimowicz – $178,000 (100,000 RSUs); and Mr. Rauseo – $178,000 (100,000 RSUs). The Special RSU Awards may be settled in cash or in shares of the Company’s common stock, at the discretion of the Committee. The Special RSU Awards vest 100% on the third anniversary of the grant date, provided that such named executive officer remains in the continuous employment of the Company from the grant date through the third anniversary of the grant date. The foregoing summary of the Special RSU Awards does not purport to be complete and is qualified in its entirety by reference to the full text of the form of Restricted Stock Unit Award Agreement, a copy of which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated herein by reference.
2018 Employee Stock Purchase Plan
The adoption of the 2018 ESPP allows the Company to provide eligible employees of the Company and of certain designated subsidiaries with the opportunity to voluntarily participate in the 2018 ESPP, enabling such participants to purchase shares of the Company’s common stock at a discount to market price at the time of such purchase. The maximum aggregate number of the Company’s shares of common stock that may be issued under the 2018 ESPP is 500,000 shares. The 2018 ESPP became effective when approved by the Company’s stockholders. The 2018 ESPP will terminate upon the earlier of (i) the date on which all shares of
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common stock available for is suance have been sold pursuant to purchase rights exercised under the 2018 ESPP or (ii) the date determined by the Board or the Committee, in its sole discretion.
The 2018 ESPP is described in detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on February 16, 2018. A copy of the 2018 ESPP is filed as Exhibit 10.5 to this Current Report on Form 8-K and is incorporated by reference herein. The description of the 2018 ESPP set forth above does not purport to be complete and is qualified in its entirety by reference to such materials.
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Item 5.07 |
Submission of Matters to a Vote of Security Holders. |
There were five proposals submitted to a vote of the holders of shares of common stock of the Company at the Annual Meeting on April 5, 2018. The voting results with respect to those five proposals were as follows:
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(1) |
Election of seven directors to serve until the 2019 Annual Meeting of Stockholders and until their successors are duly elected and qualified. |
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NAME OF DIRECTOR |
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VOTES FOR |
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VOTES AGAINST |
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ABSTENTIONS |
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BROKER NON-VOTES |
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Arthur A. Bottone |
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12,667,011 |
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3,221,606 |
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511,492 |
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37,111,232 |
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James Herbert England |
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12,736,150 |
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3,180,293 |
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483,666 |
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37,111,232 |
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Matthew F. Hilzinger |
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12,804,537 |
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3,116,702 |
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478,870 |
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37,111,232 |
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John A. Rolls |
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12,757,540 |
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3,163,540 |
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479,029 |
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37,111,232 |
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Christopher S. Sotos |
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12,839,313 |
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3,077,323 |
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483,473 |
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37,111,232 |
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Natica Von Althann |
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11,610,288 |
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4,311,954 |
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477,867 |
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37,111,232 |
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Togo Dennis West, Jr.* |
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11,449,702 |
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4,294,708 |
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655,699 |
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37,111,232 |
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*Secretary Togo Dennis West, Jr., who was nominated in the proxy statement for the Annual Meeting for re-election to the Board, passed away prior to the Annual Meeting. The Board chose not to submit a substitute nominee for Mr. West’s director position, and that position will remain vacant until a replacement is appointed by the Board or until the Board acts to reduce the size of the Board from seven to six members to eliminate the vacancy.
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(2) |
Ratification of the selection of KPMG LLP as FuelCell Energy, Inc.’s independent registered public accounting firm for the fiscal year ending October 31, 2018. |
VOTES FOR: 51,360,677
VOTES AGAINST: 973,221
ABSTENTIONS: 1,177,443
BROKER NON-VOTES: 0
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(3) |
Approval of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan. |
VOTES FOR: 11,826,005
VOTES AGAINST: 4,057,808
ABSTENTIONS: 516,296
BROKER NON-VOTES: 37,111,232
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(4) |
Approval of the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan. |
VOTES FOR: 12,478,132
VOTES AGAINST: 3,535,467
ABSTENTIONS: 386,510
BROKER NON-VOTES: 37,111,232
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(5) |
Approval , on a non-binding advisory basis, the compensation of FuelCell Energy, Inc.’s named executive officers as set forth in the “Executive Compensation” section of the Pro xy Statement. |
VOTES FOR: 10,415,347
VOTES AGAINST: 5,468,664
ABSTENTIONS: 516,098
BROKER NON-VOTES: 37,111,232
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Item 9.01 |
Financial Statements and Exhibits. |
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(a) |
Not applicable. |
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(b) |
Not applicable. |
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(c) |
Not applicable. |
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(d) |
Exhibits . |
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Exhibit Index
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Exhibit No. |
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Description |
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10.1 |
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10.2 |
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10.3 |
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Form of Restricted Stock Unit Award Agreement (U.S. Employees). |
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10.4 |
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10.5 |
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4
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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FUELCELL ENERGY, INC. |
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Date: April 6, 2018 |
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By: |
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/s/ Michael S. Bishop |
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Michael S. Bishop |
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Senior Vice President, Chief Financial Officer and Treasurer |
EXHIBIT 10.2
FuelCell Energy, Inc.
2018 OMNIBuS INCENTIVE PLAN
Restricted Stock Award
Dear _________,
You have been granted an award (an “ Award ”) of restricted shares of common stock of FuelCell Energy, Inc., a Delaware corporation (the “ Company ”), which are subject to the terms of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “ Plan ”) and this Restricted Stock Award Agreement (this “ Agreement ”). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.
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Grant Date: |
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______________, 2018 |
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Number of Shares of Restricted Common Stock: |
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_______________ (the “ Restricted Shares ”) |
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Vesting Schedule: |
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Your Restricted Shares will vest (and the Transfer Restrictions shall lapse) according to the following schedule, provided that you remain continuously employed by or in the service of the Company or an Affiliate through the applicable vesting date: [●]% will vest on ________________________ [●]% will vest on ________________________ [●]% will vest on ________________________ Except as otherwise provided in this Agreement or in the Plan, upon your termination of employment with, or cessation of services to, the Company and its Affiliates prior to the date the Restricted Shares are vested (as described above), you will forfeit the unvested Restricted Shares. |
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Release of Shares:
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The Restricted Shares will be held in an account at the Company’s transfer agent pending vesting. As soon as practicable after any Restricted Shares vest, the applicable restrictions on the Restricted Shares will be removed and such Shares will be issued according to your instructions. |
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Transfer Restrictions: |
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Except as set forth in the Plan, you may not sell, transfer, assign, pledge or otherwise alienate or encumber any of your Restricted Shares until they are vested, and any attempt to do so shall be null and void (the “ Transfer Restrictions ”). The Company is authorized to take appropriate measures to prevent any such transfer, including, but not limited to, having its transfer agent hold all unvested shares in a designated nominee account until vesting and maintaining stop transfer instructions in regard to such shares. |
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Change of Control: |
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Upon a Change of Control, your Restricted Shares will be treated in accordance with Section 19 of the Plan. |
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Voting Rights: |
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While the Restricted Shares are unvested, you may exercise full voting rights as long as the applicable record date occurs before you forfeit such Restricted Shares. |
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Any dividends or other distributions paid or made with respect to your Restricted Shares for which the record date occurs before the applicable vesting date shall be credited to a bookkeeping account on your behalf. Such bookkeeping account will be subject to the same terms and conditions (including risk for forfeiture) as the Restricted Shares to which the dividends or distributions relate, and shall be paid at the same time, and to the same extent, as such Restricted Shares vest. |
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Tax Withholding: |
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You understand that you (and not the Company) shall be responsible for your own federal, state, local, or foreign tax liability and any of your other tax consequences that may arise as a result of this Award, and that you should rely solely on the determinations of your tax advisors or your own determinations, and not on any statements or representations by the Company or any of its agents with regard to all tax matters. To the extent that the receipt or vesting of this Award, the disposition of any Shares acquired under this Award, or the payment of any dividends on the Restricted Shares results in income to you for federal, state, local, foreign, or other tax purposes, the Company may deduct (or require an Affiliate to deduct) from any payments of any kind otherwise due to you to satisfy such tax or other withholding obligations. Alternatively, the Company or its Affiliate may require you 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 of the withholding amount. At the Administrator’s discretion, you may be able to satisfy all or a portion of the withholding obligations arising in connection with this Award by electing to (i) have the Company or its Affiliate withhold Shares otherwise due to you upon settlement of this Award, (ii) tender back Shares received upon vesting of this 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 may not exceed the maximum statutory tax rate associated with the transaction. 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 removing the restrictions on your Restricted Shares until such withholding obligations are paid. |
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Electronic Communications: |
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The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. By accepting this Award, you hereby consent to receive such documents by electronic delivery, and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third-party designated by the Company. You also agree that all on-line acknowledgements shall have the same force and effect as a written signature. |
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• The Restricted Shares are expressly subject to all the terms and conditions contained in this Agreement and the Plan, and the terms of the Plan are incorporated herein by reference.
• As a condition of the granting of this Award, you agree, for yourself and your legal representatives or guardians, that this Award shall be interpreted by the Administrator and that any interpretation by the Administrator of the terms of this Agreement or the Plan and any determination made by the Administrator pursuant to this Award shall be final, binding and conclusive.
• Generally, this Agreement can only be modified or amended by a writing signed by both you and the Company. However, the Administrator may modify or amend this Award in certain circumstances without your consent as permitted by the Plan.
• The grant of this Award does not provide you with any right to continued employment or service with the Company or any Affiliate.
• By accepting this Award, you agree not to sell any Shares acquired under this Award at a time when applicable laws, Company policies, or an agreement between the Company and its underwriters prohibit a sale.
• This Award, and any compensation or benefits that you receive as a result of this Award, shall be subject to any clawback or recoupment policy that the Company may adopt from time to time. |
The Company has caused this Agreement to be executed by one of its authorized officers and is effective as of the Grant Date.
FuelCell Energy, Inc.
______________________
[Name]
[Title]
EXHIBIT 10.3
FuelCell Energy, Inc.
2018 OMNIBuS INCENTIVE PLAN
Restricted Stock Unit Award
Dear _________,
You have been granted an award (an “ Award ”) of restricted stock units of FuelCell Energy, Inc., a Delaware corporation (the “ Company ”), which are subject to the terms of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “ Plan ”) and this Restricted Stock Unit Award Agreement (this “ Agreement ”). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.
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Grant Date: |
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______________, 2018 |
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Number of Restricted Stock Units: |
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_______________ (the “ Restricted Stock Units ”) |
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Vesting Schedule: |
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Your Restricted Stock Units will vest according to the following schedule, provided that you remain continuously employed by or in the service of the Company or an Affiliate through the applicable vesting date: [●]% will vest on ________________________ [●]% will vest on ________________________ [●]% will vest on ________________________ Except as otherwise provided in this Agreement or in the Plan, upon your termination of employment with, or cessation of services to, the Company and its Affiliates prior to the date the Restricted Stock Units are vested (as described above), you will forfeit the unvested Restricted Stock Units. |
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Change of Control: |
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Upon a Change of Control, your Restricted Stock Units will be treated in accordance with Section 19 of the Plan. |
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Settlement: |
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As soon as practicable after each vesting date (but no later than two-and-one-half months from the end of the fiscal year in which the Restricted Stock Units vest), the Company will settle the Restricted Stock Units by electing either to (i) issue in your name certificate(s) or make an appropriate book entry for a number of Shares equal to the number of Restricted Stock Units that have vested or (ii) deliver an amount of cash equal to the Fair Market Value, determined as of the vesting date, of a number of Shares equal to the number of Restricted Stock Units that have vested. |
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Rights as Stockholder: |
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You will not be deemed for any purposes to be a stockholder of the Company with respect to any of the Restricted Stock Units unless and until Shares are issued to you upon settlement of this Award. |
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Except as provided in the Plan, you may not sell, transfer, assign, pledge, or otherwise alienate this Award, and any attempt to do so shall be null and void. |
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Tax Withholding: |
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You understand that you (and not the Company) shall be responsible for your own federal, state, local, or foreign tax liability and any of your other tax consequences that may arise as a result of this Award, and that you should rely solely on the determinations of your tax advisors or your own determinations, and not on any statements or representations by the Company or any of its agents with regard to all tax matters. To the extent that the receipt, vesting or settlement of the Restricted Stock Units, or disposition of any Shares acquired under your Award results in income to you for national, federal, state, local, foreign, or other tax purposes, the Company may deduct (or require an Affiliate to deduct) from any payments of any kind otherwise due to you to satisfy such tax or other withholding obligations. Alternatively, the Company or its Affiliate may require you 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 of the withholding amount. At the Administrator’s discretion, you may be able to satisfy all or a portion of the withholding obligations arising in connection with this Award by electing to (i) have the Company or its Affiliate withhold Shares otherwise due to you upon settlement of this Award, (ii) tender back Shares received upon settlement of this 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 may not exceed the maximum statutory tax rate associated with the transaction. 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 this Award until such withholding obligations are paid. |
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Electronic Communications: |
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The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. By accepting this Award, you hereby consent to receive such documents by electronic delivery, and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third-party designated by the Company. You also agree that all on-line acknowledgements shall have the same force and effect as a written signature. |
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• This Award is expressly subject to all the terms and conditions contained in this Agreement and the Plan, and the terms of the Plan are incorporated herein by reference.
• As a condition of the granting of this Award, you agree, for yourself and your legal representatives or guardians, that this Award shall be interpreted by the Administrator and that any interpretation by the Administrator of the terms of this Agreement or the Plan and any determination made by the Administrator pursuant to this Award shall be final, binding and conclusive.
• Generally, this Agreement can only be modified or amended by a writing signed by both you and the Company. However, the Administrator may modify or amend this Award in certain circumstances without your consent as permitted by the Plan.
• The grant of this Award does not provide you with any right to continued employment or service with the Company or any Affiliate.
• The Restricted Stock Units constitute a mere promise by the Company to make specified payments in the future if such benefits come due under the Award. You will have the status of a general creditor of the Company with respect to any vested Award.
• By accepting this Award, you agree not to sell any Shares acquired under this Award at a time when applicable laws, Company policies, or an agreement between the Company and its underwriters prohibit a sale.
• This Award, and any compensation or benefits that you receive as a result of this Award, shall be subject to any clawback or recoupment policy that the Company may adopt from time to time. |
The Company has caused this Agreement to be executed by one of its authorized officers and is effective as of the Grant Date.
FuelCell Energy, Inc.
______________________
[Name]
[Title]
EXHIBIT 10.4
FuelCell Energy, Inc.
2018 OMNIBuS INCENTIVE PLAN
Nonqualified Stock Option Award
Dear _________,
You have been granted an option (an “ Option ”) to purchase shares of common stock of FuelCell Energy, Inc., a Delaware corporation (the “ Company ”), which is subject to the terms of the FuelCell Energy, Inc. 2018 Omnibus Incentive Plan (the “ Plan ”) and this Nonqualified Stock Option Award Agreement (this “ Agreement ”). Capitalized terms used but not defined in this Agreement shall have the meanings set forth in the Plan.
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Grant Date: |
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______________, 2018 |
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Number of Option Shares: |
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_______________ |
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Exercise Price per Share: |
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U.S. $____________ |
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Vesting Schedule: |
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Your Option will vest according to the following schedule, provided that you remain continuously in the service of the Company or an Affiliate through the applicable vesting date: 100% will vest on the earlier of (i) the one-year anniversary from the Grant Date or (ii) the date of the next annual shareholders’ meeting held following the Grant Date, provided that such date is not less than 50 weeks from the Grant Date. The vesting of the Option will accelerate if your service relationship with the Company and its Affiliates is terminated as a result of your death or Disability, then 100% of the Option will vest in full on the date of such termination. Except as otherwise provided in this Agreement or in the Plan, upon your cessation of services to the Company and its Affiliates prior to the date the Option is vested (as described above), you will forfeit the unvested Options. |
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Expiration: |
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This Option shall expire at, and cannot be exercised after, the close of business on the tenth (10 th ) anniversary of the Grant Date (the “ Expiration Date ”), unless terminated earlier pursuant to the terms of this Agreement or the Plan. Upon termination or expiration of this Option, all your rights hereunder shall cease. |
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Exercise: |
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You may exercise this Option only to the extent it is vested and has not expired or terminated. To exercise your Option, you must follow the procedures established by the Company, which may include exercising by electronic means. |
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As soon as practical after exercise, the Company shall issue certificates in the Optionee’s name or make an appropriate book entry for such number of Shares purchased pursuant to the Option. |
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Termination of Directorship: |
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Upon termination of your service as a director for any reason other than for Cause, you may exercise this Option, to the extent vested, until the Expiration Date. Upon termination of your service as a director for Cause, this Option will automatically expire. Notwithstanding the foregoing, in the event your service terminates by reason of your death or Disability, the vested Option shall expire, and cannot be exercised after, the close of business on the earlier of (i) the Expiration Date or (ii) the date that is 12 months after such service terminates. |
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Change of Control: |
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Upon a Change of Control, your Option will be treated in accordance with Section 19 of the Plan. |
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Rights as Stockholder: |
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You will not be deemed for any purposes to be a stockholder of the Company with respect to any of Shares underlying your Option unless and until Shares are issued to you upon exercise of this Award. |
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Restrictions on Transfer: |
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Except as provided in the Plan, during your lifetime, this Award is only exercisable by you. Any attempt to transfer this Award other than in accordance with the terms of the Plan shall be null and void. |
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Electronic Communications: |
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The Company may, in its sole discretion, decide to deliver any documents related to current or future participation in the Plan by electronic means. By accepting this Award, you hereby consent to receive such documents by electronic delivery, and agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or a third-party designated by the Company. You also agree that all on-line acknowledgements shall have the same force and effect as a written signature. |
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You understand that you (and not the Company) shall be responsible for your own federal, state, local, or foreign tax liability and any of your other tax consequences that may arise as a result of this Award, and that you should rely solely on the determinations of your tax advisors or your own determinations, and not on any statements or representations by the Company or any of its agents with regard to all tax matters. To the extent that the grant, vesting, or exercise of your Award or disposition of any Shares acquired under your Award results in income to you for national, federal, state, local, foreign, or other tax purposes, the Company may deduct (or require an Affiliate to deduct) from any payments of any kind otherwise due to you to satisfy such tax or other withholding obligations. Alternatively, the Company or its Affiliate may require you 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 of the withholding amount. |
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Miscellaneous: |
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• This Award is expressly subject to all the terms and conditions contained in this Agreement and the Plan, and the terms of the Plan are incorporated herein by reference. • As a condition of the granting of this Award, you agree, for yourself and your legal representatives or guardians, that this Award shall be interpreted by the Administrator and that any interpretation by the Administrator of the terms of this Agreement or the Plan and any determination made by the Administrator pursuant to this Award shall be final, binding and conclusive. • Generally, this Agreement can only be modified or amended by a writing signed by both you and the Company. However, the Administrator may modify or amend this Award in certain circumstances without your consent as permitted by the Plan. • The grant of this Award does not provide you with any right to continued employment or service with the Company or any Affiliate. • By accepting this Award, you agree not to sell any Shares acquired under this Award at a time when applicable laws, Company policies, or an agreement between the Company and its underwriters prohibit a sale. • This Award, and any compensation or benefits that you receive as a result of this Award, shall be subject to any clawback or recoupment policy that the Company may adopt from time to time. |
The Company has caused this Agreement to be executed by one of its authorized officers and is effective as of the Grant Date.
FuelCell Energy, Inc.
______________________
[Name]
[Title]