Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e)The 2023 Annual Meeting of Stockholders of FuelCell Energy, Inc. (the “Company”), which was called to order and adjourned on April 6, 2023 and April 27, 2023, was reconvened and concluded on May 22, 2023 (the “Annual Meeting”). At the Annual Meeting, the Company’s stockholders approved (i) the amendment and restatement of the FuelCell Energy, Inc. 2018 Employee Stock Purchase Plan (as so amended and restated, the “Amended and Restated ESPP”) and (ii) the amendment and restatement of the FuelCell Energy, Inc. Second Amended and Restated 2018 Omnibus Incentive Plan (as so amended and restated, the “Third Amended and Restated Incentive Plan”), 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. 2018 Employee Stock Purchase Plan
The purpose of the amendment and restatement of the 2018 Employee Stock Purchase Plan was to authorize the Company to issue up to 500,000 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 541,667 shares of the Company’s common stock. The Amended and Restated ESPP also increases the limit on 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 Securities and Exchange Commission on February 17, 2023. A copy of the Amended and Restated ESPP is filed as Exhibit 10.1 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 does not purport to be complete and is qualified in its entirety by reference to such materials.
Amendment and Restatement of the FuelCell Energy, Inc. Second Amended and Restated 2018 Omnibus Incentive Plan
The purpose of the amendment and restatement of the Second Amended and Restated 2018 Omnibus Incentive Plan was to authorize the Company to issue up to 6,000,000 additional shares of the Company’s common stock pursuant to awards under the Third Amended and Restated Incentive Plan.
Following the approval of the amendment and restatement (and therefore the Third Amended and Restated Incentive Plan) by the Company’s stockholders at the Annual Meeting, the Third Amended and Restated Incentive Plan provides the Company with the authority to issue a total of 18,333,333 shares of the Company’s common stock. The Third 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 1,833,333 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 Third Amended and Restated Incentive Plan may terminate the Third Amended and Restated Incentive Plan at any time. No award may be granted under the Third Amended and Restated Plan after the tenth anniversary of the approval of the Third Amended and Restated Plan by stockholders at the Annual Meeting.
The Third Amended and Restated Incentive Plan is described in detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on February 17, 2023. A copy of the Third Amended and Restated Incentive Plan is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference. The description of the Third Amended and Restated Incentive Plan set forth above does not purport to be complete and is qualified in its entirety by reference to such materials.
