Employment Agreement, dated August 2, 2021 between Joshua Dolger and FuelCell Energy, Inc
August 2, 2021
Interim General Counsel and Corporate Secretary
c/o FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, CT 06810
This employment agreement (this “Agreement”) is made and entered into effective as of August 2, 2021 (the “Effective Date”), by and between FuelCell Energy, Inc., a Delaware corporation (the “Corporation”), and you.
WHEREAS, the Corporation and you desire to enter into this Agreement to set forth the terms and conditions of your continued employment relationship during the period of your service as Interim General Counsel and Corporate Secretary or your service as General Counsel and Corporate Secretary if the Corporation’s Board of Directors (the “Board”) subsequently determines to appoint you to that role on a non-interim basis;
WHEREAS, you acknowledge and agree that the Board is in the process of considering both internal and external candidates to serve as the new General Counsel and Corporate Secretary of the Corporation on a non-interim basis; and
WHEREAS, you acknowledge that by executing and delivering this Agreement, you will obtain certain rights, compensation, and benefits greater than those that you previously received from the Corporation and that, accordingly, such rights, compensation, and benefits constitute valid consideration to you.
NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties, the parties agree as follows:
|I.||Position and Duties.|
You shall perform all duties, consistent with your position as Interim General Counsel and Corporate Secretary in order to advance the Corporation’s affairs and related business efforts, assigned or delegated to you by Board or the Corporation’s President and Chief Executive Officer (“CEO”) and normally associated with the position of Interim General Counsel and Corporate Secretary. You shall devote all of your full business time, attention, energies, skills, and efforts to the advancement of the interests and business of the Corporation.
You hereby acknowledge that your rights hereunder shall be subject to the Corporation’s Compensation Recovery Policy or similar requirements in favor of the Corporation established by law or by Corporation policy.
You will be considered to have terminated your employment for “Good Reason” if you resign after one or more of the following conditions arises without your consent:
Notwithstanding the foregoing, you will not be considered to have terminated your employment for Good Reason unless (a) you provide written notice to the Corporation of the existence of the condition constituting Good Reason within a period not to exceed ninety (90) days of the initial existence of the condition, upon the receipt of which the Corporation will have a cure period of at least thirty (30) days during which it may remedy the condition and not be required to pay any severance, (b) the Corporation fails to remedy such condition within such thirty (30) day period and (c) you actually resign for Good Reason within sixty (60) days following the expiration of such cure period.
Notwithstanding the foregoing, you will not be considered to have terminated your employment for Good Reason in connection with a Change in Control unless (a) you provide written notice to the Corporation (or its successor in the Change in Control) of the existence of the condition constituting Good Reason within a period not to exceed ninety (90) days of the initial existence of the condition and within the ninety (90) day period preceding the Change in Control or the eighteen (18) month period after the Change in Control, upon the receipt of which the Corporation (or it successor) will have a cure period of at least thirty (30) days during which it may remedy the condition and not be required to pay any severance, (b) the Corporation (or its successor) fails to remedy such condition within such thirty (30) day period and (c) you actually resign for Good Reason within sixty (60) days following the expiration of such cure period. If the Corporation terminates your employment without cause during the ninety (90) day period preceding a Change in Control or the eighteen (18) month period thereafter, the termination will be deemed to be in connection with a Change in Control.
A “Change in Control” shall be deemed to have occurred upon the closing of a transaction that is of a nature that would be required to be reported in response to Item 5.01(a) of the Current Report on Form 8-K, as in effect on the date of this Agreement, pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"); provided that, without limitation, such
a Change in Control shall be deemed to have occurred if: (a) a third person, including a "group" as such term is used in Section 13(d)(3) of the Exchange Act, other than the trustee of any employee benefit plan of the Corporation, becomes the beneficial owner, directly or indirectly, of 35% or more of the combined voting power of the Corporation's outstanding voting securities ordinarily having the right to vote for the election of directors of the Corporation; (b) during any period of twenty-four (24) consecutive months individuals who, at the beginning of such consecutive twenty-four (24) month period, constitute the Board cease for any reason (other than retirement upon reaching normal retirement age, disability, or death) to constitute at least a majority of the Board; provided that any person becoming a director subsequent to the date hereof whose election, or nomination for election by the Corporation's shareholders, was approved by a vote of at least three quarters of the directors comprising the Incumbent Board (as defined below) shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or (c) the Corporation shall cease to be a publicly owned corporation having its outstanding Common Stock listed on the New York Stock Exchange or quoted in the NASDAQ National or Small Cap Market System, except where the delisting is related to a private purchase of the Corporation's stock by a group consisting of the Corporation's current officers, or where the delisting would not result in the occurrence of any of the events described in clauses (a) or (b) of this definition.
For these purposes, a Change in Control shall not be deemed to have occurred and the enhanced severance under Section III.B shall not apply where, with respect to any transaction otherwise constituting a Change in Control, you are reasonably expected to maintain the same position you had as of immediately prior to such transaction.
For these purposes, “Incumbent Board” means the Board as in existence twenty-four (24) months prior to the date the action is being considered. Notwithstanding the foregoing, if the Incumbent Board specifically determines in good faith that any transaction does not constitute a Change in Control for purposes of this Agreement such determination shall be conclusive and binding.
Except to the extent a result more favorable to you is provided for in the Plan or the applicable award agreements, any equity-based awards granted to you by the Corporation shall accelerate and immediately vest if there is a Change in Control and your employment with the Corporation is terminated by the Corporation without cause or by you for Good Reason in connection with such Change in Control.
|IV.||Eligibility for Severance; Requirement of Release.|
Any severance payments required hereunder shall commence on the first regular payroll date following the sixtieth (60th) day after the date of termination of your employment with the Corporation so long as, prior to such date, you execute and agree to be bound by (and do not revoke) a release of all claims, on a form provided by the Corporation, which releases any and all claims that you have or might have against the Corporation and which contains terms customary in such a release. If the Corporation does not receive an executed release prior to the date occurring sixty (60) days after the date of termination of your employment with the Corporation (including within such sixty (60) day period any applicable revocation period), the Corporation shall have no obligation to provide severance payments or benefits to you.
|V.||Interim Status; Impact of Redesignation to Associate General Counsel Status.|
This Agreement, and the rights, benefits and compensation conferred on you herein, shall remain in effect only so long as you remain Interim General Counsel and Corporate Secretary or serve as General Counsel and Corporate Secretary on a non-interim basis, if the Board subsequently determines to appoint you to that role on a non-interim basis, or your employment is terminated while in such roles. You understand and agree that the Board may elect at any time in its sole discretion to remove you from the role of Interim General Counsel and Corporate Secretary. If the Board elects in its sole discretion to remove you from the role of Interim General Counsel and Corporate Secretary, other than to serve as General Counsel and Corporate Secretary on a non-interim basis, you will be redesignated as Vice President, Associate General Counsel at an annual base salary of $285,000 and be eligible for a target annual bonus equal to 30% of your annual base salary as determined and approved by the Board or a committee thereof. You also shall be entitled to participate in the Corporation’s long-term incentive compensation program under the Plan; provided that the determination as to the amount or number of shares subject to any long-term incentive awards, and the other terms and conditions of such awards, shall be subject to the sole discretion of the Board or a committee thereof. For such period that you served as Interim General Counsel until the date of your removal and redesignation as Vice President, Associate General Counsel your target bonus for such fiscal year will be determined by applying (a) a rate of 55% to your earned base salary for such part of the fiscal year that you acted as Interim General Counsel and Corporate Secretary and (b) a rate of 30% to your earned base salary as Vice President, Associate General Counsel for the remainder of such fiscal year, provided that the actual amount of the bonus may be more or less than the target amount, and may be pro rated for any partial year of service. If such removal and redesignation occurs, then this Agreement will immediately terminate upon such removal and redesignation and your base salary, bonus target and benefits will revert to the levels set forth above. For the avoidance of doubt, notwithstanding anything to the contrary herein, your removal from the role of Interim General Counsel and Corporate Secretary and redesignation to the role of Vice President, Associate General Counsel, including the related diminutions, shall not constitute Good Reason under this Agreement or under any other compensation plan or arrangement of the Corporation or entitle you, alone or in combination with any other event, to any benefits hereunder or under any other compensation plan or arrangement of the Corporation. Such removal and redesignation also shall not be deemed a termination of your employment or service with the Corporation and its affiliates for any purpose. Nothing in this Agreement, however, shall entitle you to continued employment or service with the Corporation and its affiliates. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any other employment agreement or similar arrangement you may have with the Corporation.
|VI.||Compliance with Section 409A of the Code.|
To the extent the Corporation in the exercise of its reasonable judgment shall determine that Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) applies to any amounts payable to you hereunder, then any such amounts shall be paid in such fashion and at such times so as to ensure that the Corporation and you are in compliance with Section 409A of the Code; provided that the Corporation does not guarantee that any payments or benefits contemplated by this Agreement shall comply with Section 409A of the Code.
Notwithstanding anything to the contrary in this Agreement, in the event that any stock of the Corporation or any entity within the same controlled group (as defined in Section 414(b) of the Code), is publicly traded on an established securities market as defined in Section 1.409A-1(i) of the Treasury Regulations under Section 409A of the Code, payments to you that are subject to the provisions of Section 409A of the Code will not be made until the date that is six (6) months plus one day after your date of separation from service, or, if earlier than the end of the six-month period, the date of your death, if you are a Specified Employee (as defined below) to the extent required for compliance with Section 409A of the Code. Any payments delayed hereunder shall be paid in a single lump sum payment on such date. For purposes of this paragraph, “Specified Employee” means a key employee (as defined in Code Section 416(i)) of the Corporation or any affiliated organization with employees in the United States. You will be considered a key employee for the period commencing April 1 and ending on the March 31 thereafter if you were a key employee on the previous December 31 and such designation shall be effective solely for that period.
In no event shall any payment be made hereunder that shall exceed the limitations of Section 162(m) of the Code and any regulations thereunder applicable to the Corporation.
THE NEXT PAGE IS THE SIGNATURE PAGE
IN WITNESS WHEREOF, the Corporation and you have duly executed this Agreement on the date set forth below.
FUELCELL ENERGY, INC.
/s/ Jason Few
Name: Jason Few
Its: President, Chief Executive Officer and Chief Commercial Officer
Date: August 2, 2021
/s/ Joshua Dolger
Date: August 2, 2021