Amendment No. 4 to Joint Development Agreement between FuelCell Energy, Inc. and ExxonMobil Technology and Engineering Company, executed on August 25, 2023 and effective as of August 31, 2023

Exhibit 10.1

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AMENDMENT NO. 4 to JOINT DEVELOPMENT AGREEMENT

Between

FUELCELL ENERGY, INC.

and

EXXONMOBIL TECHNOLOGY AND ENGINEERING COMPANY

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ExxonMobil Technology and Engineering Company (“ExxonMobil”) and FuelCell Energy, Inc. (“FCE”) are Parties to the Joint Development Agreement with an Effective Date of October 31, 2019 and an ExxonMobil Agreement No. LAW-2019-3608 as amended on October 31, 2021, April 30, 2022, and December 1, 2022 (collectively, “Agreement”).  

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WHEREAS, the December 19, 2022 amendment of the Agreement (i) provided for the continuation of research that would enable the Parties to finalize data collection in support of the project gate decision to use the developed technology in an FCE fuel cell module demonstration for capturing carbon at ExxonMobil’s Rotterdam facility, ii) allowed for the continuation of the development, engineering and mechanical derisking of the Generation 2 Technology fuel cell module prototype, and iii) allowed for studying the manufacturing scale-up and cost reduction of a commercial Generation 2 Technology fuel cell carbon capture facility; and,

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WHEREAS, the Parties now wish to further amend the Agreement to allow the Parties the opportunity to continue (a) derisking of the Generation 2 Technology fuel cell module demonstration prototype for Rotterdam and (b) the joint marketing and sales efforts to inform development of a new business framework between the Parties beyond the current Agreement structure.

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To accomplish this, effective August 31, 2023, the Parties hereby agree as follows:

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12.01Term.  Unless sooner terminated in accordance with this Article, this Agreement will continue in full force and effect beginning on the Effective Date and ending fifty-three (53) months thereafter on March 31, 2024 (“Term”).

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2.Article 10.01 Project Costs, a) shall be deleted in its entirety and replaced with the following:

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10.01 Project Costs

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a)ExxonMobil will reimburse FCE for Research Costs (i.e., cumulative FTE Costs and Direct Costs) for each Project subject to total caps set forth herein and in the relevant Project Description.  Research Costs of FCE paid for by ExxonMobil will be limited to FTE Costs for time actually spent on the Program and Direct Costs actually incurred and approved in advance by the Steering Committee.  The cumulative Research Costs for the Program will not exceed sixty-seven million

United States dollars ($­­­­67,000,000.00) over the Term of the Agreement (“Total Research Cost”).  ExxonMobil will reimburse FCE for Research Costs after receipt of invoices on a monthly basis.  Invoices for Direct Costs will be supported by relevant third party invoices received by FCE documenting such costs.  Materials shall be invoiced as incurred and subject to a thirty percent (30%) service fee.  All such payments will be made after ExxonMobil’s receipt of invoices in accordance with invoicing procedures specified in Paragraphs 10.01(b)-(e) and in Paragraph 10.04 (Invoices).

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Except as modified herein, all provisions of the Agreement remain unchanged.

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This Amendment may be executed in counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.  Where provided for in applicable law, this Amendment may be executed and delivered electronically.  If executing this Amendment using a handwritten signature, a Party may deliver a copy of such signature via electronic transmission and may provide the other Party a duplicate original so each Party retains an original for its records.

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Each Party has caused this Amendment to be signed by its authorized representative.

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