8-K

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): October 31, 2012

FUELCELL ENERGY, INC.

(Exact Name of Registrant as Specified in 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	06813
(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))

Item 1.01. Entry into a Material Definitive Agreement.

On October 31, 2012, FuelCell Energy, Inc. (“FuelCell”) entered into a Purchase and Sale Contract with POSCO Energy Co., Ltd. (“POSCO”). Under the terms of the Purchase and Sale Contract, POSCO will purchase 121.8 megawatts of fuel cell kits to be manufactured at the FuelCell Energy production facility in Torrington, Connecticut. The estimated value of the multi-year contract with associated services is approximately $181 million. For the full text of the Purchase and Sale Contract, please refer to Exhibit 10.1 filed herewith.

On October 31, 2012, FuelCell also entered into a series of strategic initiatives with POSCO to expand the market for stationary fuel cell power plants in Asia, including a licensing agreement for POSCO to manufacture Direct FuelCell power plants in South Korea to be sold thoughout Asia, and an agreement for FuelCell to provide consulting and procurement expertise in the design and construction of a manufacturing facility in South Korea that will be financed and owned by POSCO. For the full text of the Cell Technology Transfer and License Agreement, please refer to Exhibit 10.2 filed herewith.

On October 31, 2012, FuelCell also amended the Technology, Transfer, Distribution and Licensing Agreement (“TTA”), dated as of February 7, 2007, by and between FCE and POSCO Energy and the Stack Technology Transfer and License Agreement (“STTA”), dated as of October 27, 2009. The amendments have the effect of deleting the 4.1% royalty payments required under each of these agreements and replacing it with 3.0%. In conjunction with this amendment, POSCO Energy shall make a one-time payment of USD $8.0 million to be received by FCE on or before January 15, 2013. Such payment shall constitute full payment and relief of POSCO Energy of the above 1.1% reduction from any remaining Royalties due to FCE under the TTA and STTA for the remaining terms of the TTA and STTA. For the full text of these amendments, please refer to Exhibit 10.3 filed herewith.

Item 8.01 Other Events

On November 5, 2012, FuelCell issued two press releases announcing the POSCO order and the strategic intiatives with POSCO. Copies of FuelCell’s press releases are attached to this report as Exhibit 99.1 and 99.2 and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.
	Exhibit No.	Description
	10.1	Purchase and Sale Contract dated October 31, 2012
	10.2	Cell Technology Transfer and License Agreement dated October 31, 2012
	10.3	Amendment to TTA and STTA dated October 31, 2012
	99.1	FuelCell Energy, Inc. Press Release issued November 5, 2012
	99.2	FuelCell Energy, Inc. Press Release issued November 5, 2012

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: November 6, 2012	By:	/s/ Michael S. Bishop
		Michael S. Bishop
		Senior Vice President, Chief Financial Officer, Corporate Secretary and Treasurer

EXHIBIT INDEX

Exhibit No.	Description
10.1	Purchase and Sale Contract dated October 31, 2012
10.2	Cell Technology Transfer and License Agreement dated October 31, 2012
10.3	Amendment to TTA and STTA dated October 31, 2012
99.1	FuelCell Energy, Inc. Press Release issued November 5, 2012
99.2	FuelCell Energy, Inc. Press Release issued November 5, 2012

EX-10.1

Exhibit 10.1

[Execution Version]

Contract No. ___

CONTRACT

FOR THE SUPPLY OF DFC® COMPONENTS

FROM FUELCELL ENERGY INC. (SELLER)

TO POSCO ENERGY (BUYER)

October 31, 2012

Confidential treatment requested as to certain portions of this exhibit marked with an *. Such portions have been redacted and filed separately with the SEC.

PURCHASE AND SALE CONTRACT

This PURCHASE AND SALE CONTRACT (the “Contract”) is made and entered into this 31^st day of October, 2012, (the “Effective Date”) by and between POSCO Energy CO., LTD. (formerly POSCO Power), a corporation duly organized and existing under the laws of the Republic of Korea having a place of business at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul 135-777, Korea (hereinafter referred to as “POSCO Energy” or the “Buyer”) and FuelCell Energy, Inc., a corporation duly organized and existing under the laws of the State of Delaware, U.S.A., with its principal office at 3 Great Pasture Rd., Danbury, Connecticut, U.S.A. (hereinafter referred to as “FCE” or the “Seller”). Buyer and Seller are hereinafter sometimes referred to individually as a “Party” or collectively as the “Parties.”

Each of the Parties acknowledges and agrees that all aspects of the performance by the Parties under the terms of this Contract, and all other dealings between the Parties in connection therewith, shall be governed by the principle of good faith and fair dealing. Further, each Party agrees that it will perform its functions under this Contract in cooperation with the other Party and in accordance with prevailing industry standards.

RECITALS:

WHEREAS, POSCO ENERGY and FCE signed a Memorandum of Understanding (“MOA”) on April 30 2012 in which the Parties agreed upon the framework for a purchase by POSCO ENERGY of DFC Module Kits from FCE (the “2012 Purchase Contract MOA”);

WHEREAS, consistent with the framework as described in the 2012 Purchase Contract MOA, the Buyer desires to purchase, and the Seller desires to sell, the DFC Components Kits as described hereunder; and

WHEREAS, the Seller and the Buyers acknowledge and agree that the Buyer may, without assuming any obligations set forth in this Contract, assign its rights and obligations to NewCo, if established, subject to the requirements of Section 17.1 hereunder. In the event of any other assignment of this Contract by either Party, the assignee shall assume, in writing (in form and substance reasonably satisfactory to the other Party), the rights and obligations of the assigning Party under this Contract.

Now, THEREFORE, in view of the foregoing premises and in consideration of the mutual covenants and undertakings hereinafter provided, the Parties hereto agree as follows:

1. DEFINITIONS

Unless the context otherwise requires, the following words shall have the following meanings assigned to them in this Article 1. Where the context requires, (i) words importing the singular only also include the plural; (ii) words importing person(s) include corporations and vice versa; (iii) references to statutes or regulations are to be construed as including all statutory or regulatory provisions consolidating, amending or replacing the statute or regulation referred to; (iv) the words “including”, “includes” and “include” shall be deemed to be followed by the words “without limitation”; the words “will” and “shall” shall be deemed to be interchangeable; and (v) references to agreements and other contractual instruments shall be deemed to include all subsequent amendments, extensions and other modifications to those instruments.

1.1 “2011 Purchase and Sale Contract” means the contract executed by the Parties as of May 26, 2011 as to the purchase and sale of the DFC Components Kits manufactured by Seller.

1.2 “Advance Payment Guarantee” has the meaning ascribed to it in Section 4.2.2.

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1.3 “Balance of Plant” or “BOP” means all subsystems for operation and generation of electrical power by DFC's MCFCs in one or more stacks and including, but not limited to, fuel pre-treatment boilers, water recovery, fuel exhaust burner, inverter, control system, utility interface and start-up and stand-by equipment. For the avoidance of doubt, BOP shall mean all components of the DFC Power Plant other than the Fuel Cell Stack Module.

1.4 “Balance of Plant Skid” or “BOP Skid” means structural skid(s) with all BOP components for the Power Plant with the exception of the Fuel Cell Module.

1.5 “Buyer’s Carrier” shall mean the freight forwarder engaged by Buyer at Buyer’s sole discretion, to which Buyer shall assign responsibility for taking delivery of the Equipment.

1.6 “Buyer’s Receiving Site” shall mean a location in the same country as the Seller’s Delivery Site for DFC Modules, Non-Repeating Components, and/or Repeating Components; and which location shall otherwise be designated at the sole discretion of the Buyer.

1.7 “Commissioning” shall mean that period which begins with the first achievement of the idle condition (“Hot Standby”) at the Site, after installation of BOP, Module, and related equipment in accordance with the DFC Manuals or POSCO Plant Manuals and execution of the Certificate of Mechanical Completion (CMC), and ends with Final Acceptance.

1.8 “Consumables” shall mean the water treatment salts, catalysts, adsorbents, purge gases, specialty gases, filters, gaskets, o-rings, fasteners and washers which are specified in the Service Provider’s maintenance manual and necessary for the Power Plant to perform its functions. Specifically excluded from the definition of “Consumables” are Utilities.

1.9 “Contract” means this contract and the Annexes hereto, the Specifications and all other agreements and documents, including the amendments and supplements duly made hereto between the Buyer and the Seller to ascertain the rights and obligations of the Parties upon agreement.

1.10“Contract Price” means the total amount to be paid by the Buyer to the Seller as provided in Annex A hereof, which shall be subject to any valid adjustments made through the application of the relevant provisions hereof.

1.11 “Contract Year” means the period commencing on November 1 of any calendar year and ending on October 31 of the immediately following calendar year, except for Contract Year 2013, which means the period commencing on May 1, 2013 until October 31, 2013.

1.12 “Contract Year 2015 Invoicing Date” has the meaning ascribed to it in Section 4.2.4 A.

1.13 “Contract Year 2016 Invoicing Date” has the meaning ascribed to it in Section 4.2.4 A.

1.14 “Day” and “Month” mean a calendar day and month respectively according to the Gregorian calendar.

1.15 “Delivery Milestones” has the meaning ascribed to it in Section 3.2.1 (C).

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1.16 “DFC Components” means a quantity of Repeating Components (RC) and Non-Repeating Components (NRC) from which a complete DFC Module may be assembled.

1.17 “DFC Component Kit” or “Module Kit” shall mean one set of RC and NRC (DFC Components) and other components necessary for the assembly of one complete DFC Module.

1.18 “DFC Components Specifications” means the specifications attached to this Contract as Appendix B.

1.19 “DFC Manuals” means the documents normally prepared and routinely provided by Seller which contain, but are not necessarily limited to, instructions for installation, operation, initial start-up, field procedures, instrumentation and controls, and maintenance of the DFC Plants.

1.20 “DFC Module” means those components which comprise the fuel cell stack itself, including the stack enclosure vessel, the fuel cell stack and its supporting hardware, including individual fuel cells and cell assemblies, anodes, cathodes, current collector plates, matrixes, manifolds, instrumentation, assembly and compression hardware and/or the stack enclosure vessel.

1.21 “DFC Power Plants” or “DFC Plants” means the complete power plants manufactured by Seller at the facilities of Seller or its sub-vendors, including BOP and DFC Modules.

1.22 “DFC Specifications” means the documents prepared by Seller containing performance specifications for the DFC Plants.

1.23 “Dispute” shall have the meaning set forth in Section 15.1.

1.24 “Documentation” shall have the meaning specified in Section 3.4.3.

1.25 “Effective Date” means the date first written above.

1.26 “Engineer” means the person designated by the Buyer as engineer, with notification of such designation being sent to the Seller, for the purpose of the inspection and testing stipulated in Article 9 hereof, or in absence of such notification, the word Engineer means the Buyer or its duly authorized representatives.

1.27 “Equipment” means the DFC Components Kits, Repeating Components, Non-Repeating Components, and/or any machinery, equipment, apparatus, instruments, ship loose items, materials and other items which may be supplied by Seller pursuant to this Contract.

1.28 “EXW” or “Ex Works” shall have the meaning assigned as published by the United Nations Commission on International Trade Law in the “International Commercial Terms (INCOTERMS 2010) ” as amended, except as may be otherwise provided herein.

1.29 “Facilities” means the connections, interfaces, and supporting equipment for the Plant, including the support system, slab or pedestal on which the Plant is located, fuel supply, electrical distribution system, and equipment connected to the Plant’s interface points but excluding the Plant itself.

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1.30 “FA Test” shall have the meaning set forth in Section 9.2.1.

1.31 “FCE Products” shall mean DFC Power Plants currently designated DFC300MA, DFC1500 and DFC3000 with introductory ratings of 300 kW, 1.4 MW and 2.8 MW, respectively and modifications and improvements thereof, regardless of how designated by Seller, which are made available, or in the future may be made available, for commercial use or sale by Seller.

1.32 “FM Notice” shall have the meaning set forth in Section 14.1.

1.33 “Force Majeure” shall mean unforeseen circumstances beyond the reasonable control and without the fault or negligence of either Party and which such Party is unable to prevent or provide against the exercise of reasonable diligence including, acts of God, any acts or omissions of any civil or military authority, earthquakes, strikes or other labor disturbances, wars (declared or undeclared), terrorist and similar criminal acts, epidemics, civil unrest and riots.

1.34 “Fuel Cell Module”, “DFC Module” or “Module” shall mean those components which comprise the fuel cell stack itself, including the stack enclosure vessel, the fuel cell stack, ship loose items related to the module end post and its supporting hardware, including individual fuel cells and cell assemblies, anodes, cathodes, current collector plates, matrixes, manifolds, instrumentation, assembly and compression hardware and/or the stack enclosure vessel, purchased by the Buyer pursuant to this Contract, the description and the quantity of which are set forth in Annex A to this Contract.

1.35 “Hindered Party” and “Non-Hindered Party” shall have, respectively, the meaning set forth in Section 14.1.

1.36 “ICC” shall have the meaning set forth in Section 15.2.

1.37 “Initial Down-payment” has the meaning ascribed to it in Section 4.2.1.

1.38 “Inspection Report” shall have the meaning set forth in Section 9.1.

1.39 “Master Services Agreement” means (i) the agreement executed between the Parties as of April 4, 2008 as the same may be modified, amended, or novated from time to time in accordance with the terms and conditions thereof, or (ii) the agreement to be executed between the Parties regarding each Party’s respective obligations as to the maintenance and operation of the DFC Plants or POSCO Plants, as the case may be, purchased by a Third Party Owner.

1.40 “Module Specifications” mean the Specifications attached to this Contract as Appendix A.

1.41 “NewCo” means a company to be established by Buyer in Korea to construct, assemble, manufacture, use, sell, import, distribute, maintain, service and/or repair the POSCO Products and POSCO Parts

1.42 “Non-Repeating Components” or “NRC” means parts and components of the DFC Modules other than RC, necessary to assemble a DFC Module.

1.43 “NRC Localization Plan” means the agreement executed between the Parties as of April 24, 2012 regarding a detailed plan of NRC procurement from Korean vendors.

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1.44 “POSCO Plant” or “Plant” shall mean the carbonate-based fuel cell power plant which is manufactured by Buyer using the Direct FuelCell® technology of the Seller.

1.45 “POSCOPlant Specifications” means the documents prepared by Buyer or POSCO Affiliate, which contain performance specifications for the POSCO Plant, as further described in paragraph 3.4.4 hereunder.

1.46 “POSCOPlant Manuals” means the documents prepared by Buyer or POSCO Affiliate which contain instructions for installation, operation, and maintenance of the POSCO Plant.

1.47 “POSCO Energy Fuel Cell Stack Module Manufacturing Facility” means a facility in Korea for stack assembly and conditioning activities to complete the manufacture of DFC Modules using DFC Components Kits.

1.48 “POSCO Products” means any products, regardless of designation, which are the same as, or a modification or derivation in whole or in part of FCE Products.

1.49 “POSCO Parts” means any parts or components of POSCO Products other than the DFC Module.

1.50 “Purchase Order” means any order for purchase issued by Buyer to Seller indicating types, quantities, and agreed prices for products or services Seller will provide to Buyer.

1.51 “Repeating Components” or “RC” shall consist of discrete fuel cell packages assembled from active components, excluding NRC, which are necessary for the assembly of DFC Modules.

1.52 “Rules” shall have the meaning set forth in Section 15.2.

1.53 “Seller’s Delivery Site(s)” shall mean the point of EXW delivery of the Equipment.

1.54 “Service Agreement” means a long term service agreement in respect of the Plant between the Buyer (or its designee) and the Third Party Owner.

1.55 “Site” means the location upon which the Plant and the Facilities will be installed and erected in accordance with the specifications and requirements of which are set forth in Appendix A (Specifications).

1.56 “Spares” shall have the meaning set forth in Article 30.

1.57 “Third Party Owner” means any company or other entity that purchases the Equipment from the Buyer and operates the Facilities at the Site.

1.58 “Warranty Period” shall have the meaning set forth in Section 10.1.

1.59 “UoM” mean the units of measurement.

1.60 “Utilities” shall mean air, water, wastewater, fuel and electric startup power required to operate the Power Plant.

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2. Not Used

3. SCOPE OF CONTRACT

3.1    The division of responsibility between Seller and Buyer for each manufacturing stage of POSCO Plants, for which DFC Components Kits shall be supplied under this Contract, shall be as described in this Section 3.1.

Manufacturing Category 4 (MC-4): Seller supplies DFC Components Kits, and Buyer assembles DFC Components Kits into DFC Modules and supplies BOP. In this stage Buyer will complete the manufacture of DFC Modules using DFC Components Kits in POSCO Energy Fuel Cell Stack Module Manufacturing Facility.

Manufacturing Category 5 (MC-5): Seller supplies DFC Components Kits excluding the parts to be manufactured by Korean vendors in accordance with the NRC Localization Plan as indicated in Section 3.3, and Buyer assembles DFC Components Kits into DFC Modules, and supplies BOP. The further division of responsibilities between Seller and Buyer in this stage shall be set forth in a modification to this Contract, if any, as indicated in Section 3.3.

3.2    Responsibilities of the Parties Under Manufacturing Category 4 (“MC-4”)

3.2.1    The Seller agrees to sell the quantity of DFC Components Kits, and the Buyer agrees to purchase and take delivery of the DFC Components Kits, as indicated in this section. In addition, the Seller shall provide the following materials, parts, documents, supplies, assistance, and support as specifically set forth herein:

A.    Seller shall design, engineer, and manufacture the DFC Components Kits conforming to the DFC Components Specifications provided in Appendix B, in the quantities to be shipped to Buyer according to the schedule indicated in this section;

B.    Seller agrees to supply Buyer with other materials, parts, documents, supplies, assistance, and support required and necessary for the assembly and conditioning of DFC Modules using DFC Components Kits purchased from Seller in accordance with this Contract;

C.    Seller acknowledges that time is of the essence with respect to Seller meeting its obligation to supply the DFC Components Kits purchased by Buyer hereunder. To that end, Seller shall use all commercially reasonable efforts to complete the deliveries of DFC Module Kits in accordance with the delivery schedule set forth in Annex A hereunder (“Delivery Milestones”). POSCO Energy agrees to purchase from FCE the following quantity of DFC Components Kits; provided, that Seller has met the applicable Delivery Milestones:

i. For delivery in Contract Year 2013, twelve (12) DFC Components Kits with pricing and delivery dates as indicated in Annex A hereunder; and

ii. For delivery in Contract Year 2014 starting from November 1, 2013, twenty-nine (29) DFC Components Kits with pricing and delivery dates as indicated in Annex A hereunder; and

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iii. For delivery in Contract Year 2015 starting from November 1, 2014, twenty-four (24) DFC Components Kits with pricing and delivery dates as indicated in Annex A hereunder; and

iv. For delivery in Contract Year 2016 starting from November 1, 2015, twenty-two (22) DFC Components Kits with pricing and delivery dates as indicated in Annex A hereunder.

3.2.2    Seller and Buyer acknowledge that: (a) nickel pricing has a significant impact on the cost of Module Kits; (b) Seller is only able to secure firm fixed pricing for nickel eighteen (18) months in advance; (c) Module Kit pricing for Contract Year 2013 and Contract Year 2014 is based on nickel pricing of * per pound (USD * per pound, the “Baseline Nickel Price”); and (d) a change of one dollar per pound in nickel pricing may result in approximately a * change in Module Kit cost. Accordingly, the Parties agree to review the pricing in Annex A and if necessary, make adjustments according to the following procedures:

i. Thirty (30) days prior to March 1, 2014, for Contract Year 2015 deliveries, and thirty (30) days prior to March 1, 2015, for Contract Year 2016 deliveries, the Parties shall commence reviewing the nickel price on the London Metals Exchange (“LME Nickel Price”). If the 30-day trailing average LME Nickel Price deviates more or less than 50 U.S. cents from the Baseline Nickel Price, and only for such nickel price deviation, the Parties shall commence re-negotiating Module Kit pricing for the affected Contract Year. Each price adjustment, if occurred, shall apply to one year of deliveries. There shall be no pricing adjustment for deliveries in Contract Year 2013 or Contract Year 2014. The amount of pricing adjustments in each case shall be based on good faith mutual agreement between the Parties.

ii. FCE agrees to provide supporting documentation showing the impact of LME Nickel Price changes on Module Kit pricing to POSCO Energy (i.e. evidence supporting approximately * change in Module Kit cost) (i) within fifteen (15) days from the Effective Date and (ii) upon the commencement of the pricing review for each affected Contract Year.

iii. Nickel price fluctuations in the range * per pound shall have no impact on Module Kit pricing.

iv. Parties intend to agree on revised Module Kit pricing by March 30, 2014 for Contract Year 2015 deliveries, and by March 30, 2015 for Contract Year deliveries, unless Parties otherwise agree.

3.2.3     Buyer shall comply with the drawings, manufacturing practices, instructions and quality plans provided in writing by Seller (the “Seller Instructions”) in assembling and conditioning of DFC Modules incorporating the DFC Components Kits purchased from Seller under this Contract to the extent that such Seller Instructions address the Buyer’s particular activities in assembling and conditioning of DFC Modules, unless Buyer obtains a prior written approval by Seller to do otherwise. In the event that Buyer fails to comply with the Seller Instructions without prior written approval by Seller and such failure directly results in an adverse impact on the performance of a DFC Module manufactured by Buyer incorporating a DFC Components Kit purchased from Seller after such DFC Module is installed in a Site, the warranties for such DFC Components Kit as specified in Article 9.2 and 10.2.1 (B) shall not apply.

3.2.4    During all stages of manufacture of DFC Modules by Buyer, Seller shall have the right to have its technical representative(s) present at the POSCO Energy Stack Module Manufacturing Facility, at Seller’s cost, for the purpose of inspecting the materials used and the work performed by Buyer. The Seller’s technical

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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representative(s) shall have the right to supervise and advise whether the performance of any work is correct for the manufacture of DFC Modules by Buyer. The performance of the aforesaid functions by the Seller’s technical representative(s) shall in no way relieve either Party of its obligations under this Contract.

3.2.5    With respect to DFC Components Kits provided to Buyer by Seller under this Contract, Seller shall be responsible to Buyer as set forth hereunder. In the event that any DFC Components Kits, manufactured by Seller and assembled into a complete DFC Module by Buyer under this Contract, fails to perform as stipulated by Seller in Appendix B, Seller provides Buyer with the remedies as set forth in Article 9 and Article 10 as well as other remedies allowed in this Contract to the extent that any such failure is due to the improper performance of the DFC Components Kits supplied by Seller.

3.2.6    With respect to each DFC Module assembled, installed and/or operated by Buyer, incorporating DFC Components manufactured by Seller, Seller shall be responsible to Buyer as set forth hereunder.

(a) In the event that any DFC Module fails to achieve the performance levels indicated by the Module Specifications provided in Appendix A of this Contract after the expiration of the Warranty Period as set forth in Section 10.1 but before such DFC Module’s expected term of life as indicated in Appendix A, Buyer and Seller shall consult with each other and negotiate in good faith to provide a fair and reasonable remedy for Buyer based on the results of the root cause analysis to be conducted under Article 3.2.7 below.

(b) If any such failure of DFC Module as described in this Section 3.2.6 is due to incorrect drawings or data furnished and specified to Buyer by Seller, then Seller shall furnish corrected drawings or data to Buyer, and consult with Buyer with respect to correcting the performance of the DFC Module.

3.2.7     Root Cause Investigation for Premature DFC Module Failure after Warranty Period. When any premature DFC Module failure occurs as indicated in Section 3.2.6, Seller shall establish a joint investigation team with Buyer, commence a joint investigation of each premature DFC Module failure upon receiving a notice from Buyer of such failure and submit a report to Buyer containing detailed information about the cause or causes of the failure, including the root cause, within fourteen (14) days from the Buyer’s notice of premature DFC Module failure. In those cases where more time is needed, an initial report outlining progress made towards final root cause determination shall be issued within fourteen (14) days from, and a final report shall be issued within forty-five (45) days from Seller’s access to the failed hardware, with bi-weekly updates until completion of the investigation. Buyer shall promptly provide necessary data and hardware required by Seller in order to complete the joint investigation. In the event that Seller fails to submit the root cause determination final report within such period, Buyer shall have the option to suspend the remaining deliveries and progress payments pursuant to Section 16.1.1. In the event that the Parties fail to agree as to the result of the investigation as described herein or appropriate corrective actions thereof, Buyer shall have the option to claim a Dispute pursuant to Article 15, or to suspend pursuant to Section 16.1.1. Buyer’s recourse under either of the preceding two sentences shall not be limited to the remedies identified in each sentence.

3.2.8    Seller’s Responsibility Under the Service Agreements. For DFC Modules assembled by Buyer incorporating DFC Components supplied by Seller, Buyer shall be responsible to the Third Party Owner for warranty, performance guarantees, and service obligations related to the DFC Modules, without giving prejudice to the Seller’s obligations under the Master Services Agreement with respect to any POSCO Plant purchased by a Third Party Owner. In any case, Seller shall retain its obligations to Buyer with regards to the performance guarantee of and the warranties for the DFC Components supplied by Seller as described in Section 9.2 and in Article 10.

3.3    Responsibilities of the Parties Under Manufacturing Category 5 (“MC-5”)

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3.3.1    The details of the responsibilities of Seller and Buyer under Manufacturing Category 5 (“MC-5”) shall be set forth in a modification to this Contract to be executed by the Parties, if any, consistent with the intent of the Parties as expressed in Section 3.2 above, and Section 3.3.2 hereunder.

3.3.2    Procurement of NRC from Korean Vendors. Upon successful implementation of NRC Localization Plan executed between the Parties as of April 24, 2012, Buyer and Seller may directly purchase from such vendors in Korea those NRC items that have been qualified in accordance with the vendor qualification procedures described in the NRC Localization Plan. Seller shall not in any case include those NRC items directly purchased from such vendors in the scope of the purchase by Buyer in accordance with this Contract as modified or amended from time to time.

Seller agrees that Buyer may change the scope of DFC Components Kits designated in Annex A from MC-4 to MC-5 to account for the NRC Localization Plan by excluding those NRC items procured from Korean vendors subject to the requirement that Buyer must provide advance notice in writing to Seller in accordance with the NRC Localization Plan. The adjustment of pricing of DFC Components Kits of MC-5 in account of the NRC Localization Plan shall be in accordance with a schedule of individual parts and components, which comprise NRC and RC, including pricing, part number, part description, quantities, UoM and unit price, to be included in Annex B hereunder and incorporated into the NRC Localization Plan (hereafter “Annex B”). Such change in the scope shall be subject to the requirements of the NRC Localization Plan as regards vendor qualification procedures.

3.4    General Conditions

3.4.1    The Seller’s performance of its obligations under this Contract, including its design and engineering services, shall be performed (i) with the utmost care and diligence, (ii) in accordance with generally accepted international professional standards, and (iii) as expeditiously as is consistent with the preceding standards of professional skill, care and diligence. The Seller represents, covenants and agrees that all persons who will perform or be in charge of the work under this Contract shall have experience and that whenever required by applicable law, such persons shall be licensed and qualified to practice under such law.

3.4.2    In performing its duties and obligations hereunder, the Seller shall, at all times, act in the capacity of an independent contractor, and shall not in any respect be deemed (or act as) an agent of the Buyer, except as otherwise provided under this Contract.

3.4.3    Seller agrees to provide the Seller’s operating instruction manuals, drawings, graphs, tables, exhibits and other documentation (the “Documentation”) in metric units to the extent available and in use at Seller’s factory.

3.4.4 Buyer shall be responsible for establishing the POSCO Plant Specifications and the POSCO Plant Manuals (collectively, “POSCO Plant Specifications and Manuals”). Buyer agrees that the POSCO Plant Specifications and Manuals shall use the DFC Specifications and DFC Manuals as a guide. Buyer additionally agrees that the POSCO Plant Specifications and Manuals shall not exceed the performance levels established in the DFC Specifications and DFC Manuals, nor shall such POSCO Plant Specifications and Manuals allow operating conditions any more severe than such contained in the DFC Specifications and DFC Manuals, without the prior written approval of Seller.

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4. CONTRACT PRICE ANDPAYMENT TERMS

4.1 The Contract Total Price set forth in Annex A covers the Scope of Contract set forth in Article 3 above, subject to Section 3.3.2 and Section 4.1.1 below.

4.1.1     Price Adjustment for Cost Reductions. Seller and Buyer agree to create a joint team and establish a detailed plan to achieve cost reductions, in order to determine a baseline for cost reductions and specify a procedure for periodic updates. For those cost reduction initiatives which are identified by the joint team and mutually agreed by the Parties, and for which the expenses related to such cost reduction initiatives are equally divided between the Parties, the cost reduction benefits shall be allocated on a 50% sharing basis, by means of a decrease in the pricing of items in Annex A. Seller and Buyer shall maintain a transparent log of cost-reduction results to be achieved by the joint team of Buyer and Seller, and Seller shall provide a cost reduction achievement report to Buyer every two months starting with the Effective Date of this Contract.

4.2 Payment Terms

4.2.1    Initial Down-payment. Buyer agrees to make a down-payment to Seller in the amount of ten million US dollars (USD $10 million), which shall be received by FCE on or before October 31, 2012 (“Initial Down-payment”).

4.2.2.    Advance Payment Guarantee. Seller and Buyer agree (i) to follow the advance payment bond and lien procedures included herein as Annex C (“Advance Payment Guarantee”) and (ii) that the Advance Payment Guarantee shall be received by Buyer in accordance with the provision (A) of Annex C.

4.2.3 Payments for DFC Components Kits sold to Buyer designated for delivery in Contract Year 2013 and Contract Year 2014 as indicated in Annex A, shall be made by the Buyer to the Seller in accordance with the following schedule; provided, that Seller has met the applicable Delivery Milestones:

A. The first payment in the amount of eleven point forty-three percent (11.43%) of the price of individual DFC Components Kits shall be allocated from the Initial Down-payment.

B. The second payment in the amount of twenty-eight point fifty-seven percent (28.57%) of the aggregate price of DFC Components Kits designated for delivery in Contract Year 2013 and Contract Year 2014 shall be invoiced on December 15, 2012, it being understood and agreed that this payment shall be received by FCE no later than January 15, 2013.

C. The third payment in the amount of fifteen percent (15%) of the price of individual DFC Components Kits (RC and/or NRC) shall be invoiced twelve (12) weeks prior to EXW shipment date.

D. The fourth payment in the amount of twenty percent (20%) of the price of individual DFC Components Kits (RC and/or NRC) shall be invoiced four (4) weeks prior to EXW shipment date.

E. The fifth payment in the amount of twenty-five percent (25%) of the price of individual DFC Components Kits (RC and/or NRC) shall be invoiced at the EXW shipment date.

4.2.4 Payments for DFC Components Kits sold to Buyer for delivery in Contract Year 2015 and Contract Year 2016 as indicated in Annex A, shall be made by the Buyer to the Seller in accordance with the following schedule; provided, that Seller has met the applicable Delivery Milestones:

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A. The first payment in the amount of fifteen percent (15%) of the total price of all DFC Components Kits to be delivered in Contract Year 2015 shall be invoiced on December 15, 2013 (hereafter the “Contract Year 2015 Initial Invoicing Date”), and the first payment in the amount of fifteen percent (15%) of the total price of all DFC Component Kits to be delivered in Contract Year 2016 shall be invoiced on December 1, 2014 (hereafter the “Contract Year 2016 Initial Invoicing Date”).

B. The second payment in the amount of twenty-five percent (25%) of the aggregate price of DFC Components Kits to be delivered in Contract Year 2015 shall be invoiced fourteen (14) weeks after the Contract Year 2015 Initial Invoicing Date; and the second payment in the amount of twenty-five percent (25%) of the aggregate price of DFC Component Kits to be delivered in Contract Year 2016 shall be invoiced fourteen (14) weeks after the Contract Year 2016 Initial Invoicing Date.

C. The third payment in the amount of fifteen percent (15%) of the price of individual DFC Components Kits shall be invoiced twelve (12) weeks prior to the EXW shipment date of individual DFC Components Kits.

D. The fourth payment in the amount of twenty percent (20%) of the price of individual DFC Components Kits shall be invoiced four (4) weeks prior to EXW shipment date of individual DFC Components Kits.

E. The fifth payment in the amount of twenty-five percent (25%) of the price of individual DFC Components Kits shall be invoiced at the EXW shipment date of individual DFC Components Kits.

4.3    Method of Payment. POSCO Energy shall remit payment to FCE via letter of credit (L/C) for the second payment, and via wire transfer (T/T) for the first, third, fourth and fifth payment as indicated in Section 4.2.3, and via letter of credit (L/C) for the first and second payment, and via wire transfer (T/T) for the third, fourth and fifth payment as indicated Section 4.2.4 above.

4.4     Payment Default Rate. Payments invoiced by Seller shall be due within thirty (30) days after the date of invoice; provided, that Seller has complied with all of its prior obligations under this Contract. In the event that any payment due from Buyer under this Contract is not paid when due, Buyer shall pay Seller interest on such overdue payment during a period commencing on such due date until the date that such overdue payment is actually made to Seller, the annual rate of interest being equal to two percent (2%) above the highest commercial prime rate as published in the Wall Street Journal on the day the payment first became due. Nothing in this paragraph shall prevent the Seller from exercising other remedies available under this Contract.

5. Not Used.

6. DELIVERY; TITLE TRANSFER; INSPECTION

6.1    Delivery.

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6.1.1    Shipment Terms for the Equipment. Seller agrees to supply, and Buyer agrees to purchase, the Equipment in the quantities and prices as indicated in Annex A hereunder, and Annex B, which shall be added as a part of this Contract later, on the basis of EXW Seller’s Delivery Sites. For the avoidance of doubt, Seller shall be responsible for crating and/or otherwise preparing the Equipment for shipment in compliance with Article 7 of this Contract; and the cost for preparing the Equipment for such shipment is included in the pricing as indicated in Annex A hereunder. Annex B will provide the detailed component parts pricing and other information which will be used by the Parties to adjust the pricing in Annex A after certain components are localized pursuant to the NRC Localization Plan. In the event that the part number, part description, UoM and/or quantities in Annex B hereunder are changed based on the Seller’s latest technical information including, without limitation, drawing, specification, and BOM, Annex B hereunder shall be modified based on such changes before the EXW shipment date of the Component Kit to which the changes described herein are applied.

6.1.2Shipment in Place. In the event that Buyer’s Carrier has not been designated by Buyer or otherwise is unready to take delivery of the Equipment on the EXW delivery dates as indicated in Annex A, Seller may ship any such shipment in place, or ship to storage at Buyer’s expense; and, Buyer agrees to make payments for such shipments according to the payment schedule indicated in Article 4 hereunder.

6.1.3Designation of Seller’s Delivery Sites. Seller agrees to notify Buyer within 60 days after the Effective Date of this Contract, of the Seller’s Delivery Site(s) for the Equipment. The Seller’s Delivery Sites shall not exceed four (4) physical locations (including the location(s) in Fuel Cell Energy Site in Connecticut) for any given DFC Component Kit. Any and all deliverables to the Buyer shall be shipped to such locations at Seller’s expense. After the execution of this Contract, the Parties shall negotiate in good faith to minimize any inland shipping expenses and ensure the quality of the Equipment during the inland shipping. The Parties further agree to discuss increasing the number of Seller’s Delivery Sites in support of cost reduction and NRC Localization efforts.

6.1.4Additional Shipping Services. At the request of Buyer, Seller agrees to provide additional shipping services to Buyer, including trucking and insurance services necessary to transport the Equipment from the Seller’s Delivery Site to the Buyer’s Receiving Site. For the avoidance of doubt, such additional shipping services are not included in the pricing indicated in Annex A, and shall only be arranged by Seller upon receipt of written request from Buyer, which shall include costs which Buyer shall reimburse to Seller upon completion of the additional shipment services.

6.1.5Partial shipments shall be permitted when approved in advance by Buyer for individual parts of a DFC Components Kit; provided, however, that Seller shall use its utmost effort to avoid partial shipments.

6.1.6If either the Buyer or the Seller wishes to adjust the delivery schedule set forth in Annex A, the Parties shall, after agreeing to an appropriate price adjustment in a good faith and commercially reasonable manner, cooperate to adjust the delivery schedule.

6.2 Communication

6.2.1The Seller shall provide to the Buyer, by facsimile or email, the information necessary for the Buyer's vessel arrangement and necessary insurance pursuant to Article 6.6 at least 30 days prior to each shipment, including the name of Equipment, the approximate number of packages, total weight and measurement, shipping documents in accordance with Annex B hereunder, and other pertinent information (including information for customs clearance and inland transportation). The Buyer shall inform, by email or facsimile,

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the Seller of the status of container arrangements from the forwarder seven (7) days prior to the date of shipping.

6.2.2The Seller shall, immediately after the completion of each shipment, notify the Buyer by facsimile or email of the contents of cargo shipped and expected date of arrival and other pertinent information.

6.3 Liquidated Damages for Delayed Delivery.

In the event the EXW delivery date of the Equipment is delayed more than fifteen (15) days beyond the EXW shipment dates indicated in Annex A through the fault of the Seller, or the loading date is delayed due to the Seller’s failure to provide or omission of the necessary information to be provided to Buyer in pursuance of Section 6.2, the Buyer is entitled to claim liquidated damages per day of delay in an amount equivalent to 0.15% of the price for the delayed Equipment. Such liquidated damages shall not exceed seven percent (7%) of the price of the delayed Equipment. In the event that liquidated damages under this Section reach seven percent (7%) of the price of the delayed Equipment, Buyer shall have recourse to Article 16.1.4 below. Prior to implementing the provisions of Article 16.1.4 pursuant to this Section, Buyer agrees that it shall discuss with Seller alternate remedies in good faith.

6.4 Title Transfer. Title to the Equipment and risk of loss shall transfer to Buyer at the time EXW delivery is completed at the Seller’s Delivery Site, provided, that nothing in this Contract shall (i) limit the Seller’s obligations to replace defective or deficient Equipment under this Contract or (ii) otherwise limit the Buyer’s rights under Articles 9, 10 and 11.

6.5 Inspection; Rejection

6.5.1The Seller or its designated representative shall inspect the Equipment following the procedures as indicated in Section 9.1 at the EXW location for quality assurance. The Buyer will have the right to be present at the time of such inspection, and the Seller shall provide Buyer with thirty (30) days prior notice of any such inspection.

6.5.2    In the event that any Equipment is found to be defective or deficient after the inspection pursuant to Section 6.5.1, Seller shall immediately repair or replace the affected Equipment with new Equipment in conformance with the Specifications. In the event that such repair or replacement is not possible prior to any shipment, Buyer may accept the shipment including the affected Equipment, and Seller shall provide to Buyer, within five (5) business days from the EXW shipment date for affected Equipment, a written plan to replace the affected Equipment with new Equipment in conformance with the Specifications, targeting to supply the replacement Equipment to Buyer within fourteen (14) days from the EXW shipment date for affected Equipment at the EXW location. For avoidance of doubt, Seller shall be responsible for all costs incurred in relation to the delivery of the replacement Equipment to the POSCO Energy Stack Module Manufacturing Facility. If the replacement of the affected Equipment is not possible within fourteen (14) days, Buyer shall have recourse to the procedures in Section 10.2.2 hereunder as a remedy.

6.6 Insurance. Seller shall bear the cost of insuring the Equipment prior to the time of EXW Delivery. Buyer shall bear the cost of insuring the Equipment from the time of EXW Delivery.

7. PACKING

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7.1    The Equipment to be shipped to the Buyer shall be packed and shipped in accordance with the Specifications and if not specified therein, shall be packed in sea-worthy packing conditions according to usual international commercial and industrial practice; that is, the packing of the DFC Components shall utilize proper anti-corrosion and/or anti-rust compounds or coatings and protective water proof wrapping and/or packing as the case may be. In case of wood packaging materials, the Seller shall comply with the quarantine requirements set forth in Article 7.3 hereof. Such packing shall be sufficiently strong including skids so that it will not break or fall apart under normal handling.

Interior blocking, bracing and cushioning shall be provided where necessary to absorb shocks, prevent rattling and relieve destructive forces. Additionally the Equipment should have proper devices on it to record any shock during transportation. Packing containing fragile materials should be so marked in bold stout letters.

In accordance with good packing practices, the Equipment shall be packed in the smallest possible approved containers since steamship freight is usually based on cubic measurements.

7.2    Marking shall include the following information and any other information reasonably requested by Buyer:

A. For: POSCO Energy;

B. Contract number or name of Contract;

C. Port of destination;

D. Item number, package number in sequence and quantity per package;

E. Commodity description;

F. Net weight, gross weight, dimension and cubic measurement;

G. Shipper's marks;

H. Origin of the Equipment/Port of Export;

I. Caution marks, if necessary; and

J. Shipping mark.

1. POSCO Energy

7.3    Wood Packaging. In case of wood packaging materials, the following conditions should be met:

The Quarantine Requirements on Wood Packaging Materials of Imported Consignments Respective packing list shall be attached on each wood packing container.

• Regulated Articles: All non-manufactured wood packaging materials such as pallets, crating, dunnage, packing blocks, etc.

• Exempted Articles: Manufactured wood packaging materials such as plywood, particle board, oriented strand board, veneer, etc.

• Regulated Areas: All countries.

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• Requirements: All imported wood packaging materials should be treated by following methods, and present the mark which certifies the approved treatment on two opposite sides of the article.

• Treatment methods: Heat Treatment (HT) or Methyl Bromide (MB) fumigation according to the Annex Ⅰ of ISPM No. 15.

ISPM 15 mark

• The mark should contain the valid symbol approved by IPPC, country code, unique number of the producer/treatment facility assigned by the NPPO of exporting countries, treatment methods (HT, MB).

• Only HT is accepted as a proper treatment for coniferous wood packaging materials from pine wood nematode distributed countries.

• Subjected countries : Japan, China, Taiwan, US, Canada, Mexico, Portugal, Vietnam (pine wood)

• Non-compliance Measures

• Treatment, Disposal or Return to the origin at the expense of the Seller.

7.4    In case that special arrangements are required for unloading, packing, handling, storage and operation of the Equipment, Seller shall recommend to Buyer the required method and procedures to facilitate Buyer’s suitable arrangement. In that case Buyer may, if necessary, establish the method and procedures under consultation with Seller.

7.5    Seller may reuse shipping crates. Seller shall provide logistics for the return of used shipping crates and Buyer shall cooperate with Seller arranging to have such crates returned to Seller.

8. DRAWINGS AND DOCUMENTS

8.1    The Seller shall provide, or has already provided to the Buyer:

A. Appropriate drawings, reports, guidelines, manuals, programs, software, and data for assembly of the DFC Components into DFC Modules;

B. All drawings, manuals and reports shall be complete, neat and legible, for the purpose of their use to permit adequate review, and operation as applicable;

C. All drawings, manuals and reports shall be in accordance with the Specifications provided in Appendix A and/or Appendix B.

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9. PERFORMANCE GUARANTEES AND ACCEPTANCE TESTS

9.1    Standard Pre-Shipment Factory Inspection Procedures for DFC Components

The Seller agrees to provide thirty (30) days advance written notice to Buyer for pre-shipment inspection of Repeating Components to be shipped to Buyer pursuant to this Contract. The Parties shall negotiate in good faith to agree on the standard pre-shipment factory inspection procedures for DFC Components Kits.

The Seller shall conduct normal and standard inspections of all materials and the workmanship of all DFC Components Kits to be supplied under this Contract before any shipment, or in accordance with the standard pre-shipment factory inspection procedures for DFC Components Kits after the Parties set up the inspection procedures through negotiation as described herein. Seller shall prepare a report documenting results of the inspections for DFC Components Kits (the “Inspection Report”). One copy of the Inspection Report for each set of DFC Components Kits provided pursuant to this Contract shall be supplied to Buyer prior to shipment. Seller shall provide a standard form of the Inspection Report within thirty (30) days of the Effective Date. Such inspection, examination or testing, if made, shall not relieve Seller from any obligations under the Contract.

If any DFC Components Kits or any other Equipment is found to be defective or deficient after such inspection pursuant to this Section, the Seller shall immediately notify Buyer of such defect or deficiency, and repair or replace the affected Equipment with new Equipment in conformance with the Specifications. In the event that such repair or replacement is not possible prior to any shipment, Buyer may accept the shipment including the affected Equipment, and Seller shall provide to Buyer, within five (5) business days from the EXW shipment date for the affected Equipment, a written plan to replace the affected Equipment with new Equipment in conformance with the Specifications, targeting to supply the replacement Equipment to Buyer within fourteen (14) days of the EXW shipment date for the affected Equipment at the EXW location. For the avoidance of doubt, Seller shall be responsible for all costs incurred in relation to the delivery of the replacement Equipment to the POSCO Energy Stack Module Manufacturing Facility. If such replacement of the affected Equipment is not possible within fourteen (14) days, Buyer shall have recourse to the procedures in Section 10.2.2 hereunder as a remedy.

9.2    Performance Guarantee for DFC Components

9.2.1    The guaranteed power output and efficiency for the POSCO Plant final acceptance test at the Site (the “FA Test”) shall be as set forth in the POSCO Plant Specifications. If after repeated FA Tests over a period of six (6) months from the first FA Test, the POSCO Plant fails to achieve the guaranteed power output and/or efficiency set forth in the POSCO Plant Specifications for causes attributable to the DFC Components provided by Seller, but achieves at least 95% of the guaranteed power output and/or efficiency, Seller shall reimburse Buyer an amount of the Contract Price for the DFC Components, which is proportional to the reduction in either the power output or the efficiency, whichever amount is higher.

9.2.2    In the event the POSCO Plant fails to achieve at least 95% of the guaranteed power output and/or efficiency due to the fault of the DFC Components after repeated FA tests, Seller shall notify Buyer in writing of the reason for such failure. If the reason is attributable to causes related to DFC Components provided by Seller, then Seller shall have a period of six (6) months from the first FA test to take necessary corrective actions and repeat the FA test to achieve equal to or greater than 95% of the guaranteed power output and/or efficiency. If at the end of such time period 95% of the guaranteed power output and/or efficiency is still not achieved, then Buyer shall have recourse to the applicable provisions of Article 10 below or Section 3.2.5 hereunder if Article 10 does not apply.

10. WARRANTIES

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10.1    Warranties Against Defects, Etc. The Seller warrants, for a period of twenty-one (21) months from the date of each EXW shipment, (the “Warranty Period”) that (i) the DFC Components to be delivered hereunder shall be free from defects in material and workmanship; and (ii) the DFC Components conform to the DFC Component Specifications as indicated in Appendix B hereunder and other requirements set forth in this Contract. The Parties agree that the Warranty Period specified in this paragraph is unique to this Contract and does not necessarily indicate the warranty period for future purchase contracts between the Parties.

10.2    Remedies for Breach of Warranties Against Defects, Etc.

10.2.1    

(A) Remedies for Defects Prior to Commissioning. If any DFC Components Kits purchased from Seller under this Contract do not meet the Warranties set forth in Article 10.1 during the Warranty Period and prior to Commissioning, the Buyer shall promptly notify the Seller in writing (the “Notice of Defect”). To facilitate continuation of Buyer’s production activities, Buyer shall have the ability to use new replacement parts from Buyer’s inventory to correct the defects, following the procedures as set forth in Article 1 of Appendix C hereunder (“Replacement from Buyer’s Inventory”). In the event Buyer elects to correct defects by Replacement from Buyer’s Inventory, Seller shall deliver, at its own expense and cost, sufficient new replacement parts to Buyer to enable restoration of Buyer’s inventory within sixty (60) days from its receipt of Buyer’s Notice of Defect. Buyer shall have a sole right to determine whether or not the Buyer’s Inventory is sufficient and in the event Buyer elects not to correct the defects by Replacement from Buyer’s Inventory due to its insufficiency, at the Buyer’s sole discretion, then Seller shall, at its own expense and cost, correct the defects by replacing the affected DFC Components Kits or parts thereof, within fourteen (14) days of its receipt of Buyer’s Notice of Defect, without regards to the allocation of responsibilities following the result of the investigation in pursuance of Section 10.2.1(C). In the event that Seller does not complete the replacement within the time periods as required by this provision, Buyer shall have recourse to Section 10.2.2(A) hereunder as a remedy.

(B) Remedies for Defects After Commissioning. If any DFC Components Kits purchased from Seller under this Contract and being incorporated into the DFC Modules by Buyer do not meet the Warranties set forth in Article 10.1 during the Warranty Period and after Commissioning, the Buyer shall promptly send a Notice of Defect to the Seller. Seller shall, at its own expense and cost, correct the defects by: (i) repairing the defective parts of the DFC Component Kits and/or any other Equipment thereof, or (ii) replacing the defective parts if repair is impossible, within thirty (30) days of its receipt of Buyer’s Notice of Defect, without regards to the allocation of responsibilities following the result of the investigation in pursuance of Section 10.2.1(C). If the Seller does not complete the correction of such defects within thirty (30) days from the date of its receipt of the Buyer’s Notice of Defect, the Buyer shall have recourse to Section 10.2.2(B) hereunder as a remedy.

(C) Root Cause Investigations. Simultaneously with the corrective actions carried out pursuant to Sections 10.2.1(A) and 10.2.1(B), Seller shall establish a joint investigation team with Buyer, commence a joint investigation and provide a report to Buyer containing detailed information about the cause or causes of the defects, including the root cause, within fourteen (14) days of its receipt of the Buyer’s notice of defects. In those cases where more time is needed, Seller shall provide an initial report outlining progress made towards final root cause determination within fourteen (14) days from, and then provide a final report to Buyer within forty-five (45) days from its receipt of the Buyer’s notice, with bi-weekly updates until completion of the investigation. Buyer shall promptly provide necessary data and hardware required by Seller in order to

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complete Seller’s investigation. In the event that Seller fails to issue a root cause determination final report to Buyer within such period, Buyer shall have the option to suspend the remaining deliveries and progress payments pursuant to Section 16.1.1. In the event that the Parties do not agree as to the result of the investigation as described herein or appropriate corrective actions thereof, and the Parties do not reach an agreement within fifteen (15) days after the issuance of the final report, Buyer shall have the option to claim a Dispute pursuant to Article 15, or to suspend pursuant to Section 16.1.1. Buyer’s recourse under either of the preceding two sentences shall not be limited to the remedies identified in each sentence.

(D) Cost and Reimbursement. For the avoidance of doubt, the Seller shall bear all costs and expenses incurred in connection with the corrective measures specified above, including international shipping expenses, customs clearance at a Korean port, inland transportation from the port to the POSCO Energy Fuel Cell Stack Module Manufacturing Facility; with the exception that for the period commencing with EXW shipment and ending with the start of Commissioning for each Module, Seller, at its own cost and expenses, shall supply replacement parts, and repair and supervisory technical support as corrective measures required by Section 10.2.1 (A), and/or (C), while Buyer shall be responsible for international shipping expenses, customers clearance at a Korean port, inland transportation from the port to the POSCO Energy Fuel Cell Stack Module Manufacturing Facility. If, after the submission of the final report to Buyer, Buyer is found responsible for the defects, Seller shall be reimbursed by Buyer for its actual expenses incurred in investigating the cause of the defects and implementing the corrective actions pursuant to this Article to such extent that the defects or deficiencies are not attributable to Seller, but attributable to Buyer.

10.2.2     Buyer’s Option for Correction of Defects.

(A) If Buyer elects not to correct defects by Replacement from Buyer’s Inventory, and the correction of defective DFC Component Kits and/or any other Equipment thereof by Seller is not achieved within fourteen (14) days from the Seller’s receipt of the Buyer’s Notice of Defect as set forth in Section 10.2.1(A), Buyer may commence correcting the defects at the Buyer’s expense to be reimbursable by Seller, through repair of the defective DFC Component Kits and/or any other Equipment thereof. In the event that Buyer corrects the defects through a repair, such repairs are subject to Seller’s prior approval, which shall be given to Buyer within three (3) days after the Seller’s receipt of Buyer’s notice of such repair. Seller shall reimburse the expenses incurred by Buyer for correction of the defects made in pursuance of this provision within thirty (30) days from the date of its receipt of the Buyer's invoice of such expenses. Notwithstanding the correction procedures by Buyer as set forth herein, the Seller’s obligation to commence investigation and submit a report to Buyer remains the same as indicated in Section 10.2.1(C).

(B) If the correction of defective DFC Component Kits and/or any other Equipment thereof by Seller is not achieved within the time periods indicated in Section 10.2.1(B), Section 6.5.2 or Section 9.1 hereinabove, Buyer may commence correcting the defects at the Buyer’s expense to be reimbursable by Seller, through repairing or replacing the defected DFC Component Kits and/or any other Equipment thereof. In the event that Buyer corrects the defects through a repair, such repairs are subject to Seller’s prior approval, which shall be given to Buyer within three (3) days after the Seller’s receipt of Buyer’s notice of such repair. In the event that Seller does not provide its approval to Buyer within three (3) days, Buyer may commence correcting the defects through a replacement on its own, and Seller shall supplement new DFC Component Kits and/or any other Equipment in conformance with the DFC Components Specifications to Buyer within thirty (30) days from the date on which the time period for Seller to replace the defective DFC Component Kits and/or any other Equipment thereof in accordance with Section 10.2.1(B), Section 6.5.2, or Section 9.1 expires. Seller shall reimburse the expenses incurred by Buyer for correction of the defects made in pursuance

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of this provision within thirty (30) days from the date of its receipt of the Buyer's invoice of such expenses. Notwithstanding the correction procedures by Buyer as set forth herein, the Seller’s obligation to commence investigation and submit a report to Buyer remains the same as indicated in Section 10.2.1(C).

10.2.3 Liquidated Damage for Delayed Shipment of Warranty Parts. In the event that Seller fails to deliver the replacement DFC Component Kits and/or any other Equipment thereof within the time periods specified in Section 10.2.1(A) or Section 10.2.2 (B), the Buyer shall be entitled to claim liquidated damages per day of delay in an amount equivalent to 0.15% of the price for the delayed DFC Component Kits and/or any other Equipment thereof; with the exception that liquidated damages shall not be incurred under this paragraph if Seller is at the same time accumulating liquidated damages for delayed delivery pursuant to Section 6.3 hereunder. Such liquidated damages shall not exceed seven percent (7%) of the price of the affected DFC Component Kit. In the event that liquidated damages under this Section reach seven percent (7%) of the price of the affected DFC Component Kit, Buyer shall have recourse to Article 16.1.4 below. Prior to implementing the provisions of Article 16.1.4 pursuant to this Section, however, Buyer agrees to discuss with Seller alternate remedies in good faith.

10.3     Warranty Period Extension. In the event that any DFC Components Kits and/or any other Equipment thereof is found to be defective and is repaired or replaced in satisfaction of Seller’s obligations in connection with the warranty as provided in this Article 10, the warranty period for the affected DFC Component Kit(s) shall be extended for a period of time equivalent to the time period starting with Buyer’s notification to Seller of the defect, and ending with the resolution of such issue by the Seller in accordance with the warranty provisions hereunder.

10.4    General Warranty Provisions

10.4.1    Title Warranty. Seller shall warrant that the DFC Component Kits and/or any other Equipment are delivered hereunder free from any and all rightful, legitimate and proven claims, demands, liens and/or encumbrances of title. If any failure to comply with this warranty appears at any time, Buyer will give prompt written notice to Seller, and Seller shall defend the title thereto and save Buyer harmless from or reimburse all losses, damages and liabilities of every kind, arising in connection with such failure. This warranty shall be extended during the period of such title defense without limit as to time.

10.4.2    Assignment of Warranty. The warranty provided in this Article 10 may be assigned by the Buyer to the Third Party Owner upon final sale, provided that the terms of the warranty shall be determined in accordance with this Article without regard to any such sale.

10.4.3    Seller shall not be responsible for removal or replacement of any structure or part of the Facility required to perform Seller’s warranty obligations under this Contract.

10.5    The Seller does not warrant the DFC Components Kits or any repaired or replacement parts against normal wear and tear including that due to expected degradation in accordance with the DFC Components Specifications, environment or operation, including excessive operation at peak capability, frequent starting/stopping, type of fuel, or erosion, corrosion or material deposits from fluids. The warranties and remedies set forth herein are further conditioned upon (i) the proper storage, installation, operation, and maintenance of the DFC Components Kits and conformance with the DFC Components Specifications and instruction manuals (including revisions thereto) provided by the Seller and/or its subcontractors; (ii) the proper operation and maintenance of the POSCO Plant in accordance with the POSCO Plant Manuals, or in the absence of such POSCO Plant Manuals, the DFC Plant Manuals as applicable; and (iii) repair or modification pursuant

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to Seller’s instructions or approval. Buyer shall keep proper records of operation and maintenance during the warranty period. These records shall be kept in the form of logsheets and copies shall be submitted to Seller upon its request. Seller does not warrant any equipment or services of others designated by Buyer where such equipment or services are not normally supplied by Seller.

10.6    The Seller shall be exempted from its obligation to correct, repair and/or replace the DFC Components, or any Equipment under Article 10.2 to the extent a defect or non-conformance is the result of improper assembly, installation or damage resulting from the Buyer’s failure to comply with the Seller’s Instructions regarding installation, operation and maintenance of the Module.

10.7    Changes, modifications or alterations by the Buyer or its vendors, suppliers, employees or agents, to the Buyer’s Plant or its components provided herein other than specified in Section 10.6 above, without the written approval of Seller, shall void all Seller’s obligations and warranties hereunder, and may void third party equipment certifications, including safety, environmental and interconnection.

10.8    Exclusive Remedy. Except as otherwise set forth in this Contract, the remedies set forth in this Article 10 are the exclusive remedies for all claims based on failure of or defect in the Equipment provided under this Contract, whether the failure or defect arises before or during the warranty period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.

10.9    If defective DFC Component Kits and/or any other Equipment thereof is replaced in accordance with this Article, Section 6.5.2 or Article 9, and if Seller requests, Buyer agrees to return the affected DFC Component Kits and/or any other Equipment thereof to FCE Korea or other location in Korea as may be determined pursuant to Section 10.2.4 and to no other places. For the avoidance of doubt, Seller shall be responsible for all costs incurred in relation to such return(s).

11. LIMITATION OF LIABILITY AND INDEMNIFICATION

11.1    Each Party (Indemnitor) agrees to indemnify and hold harmless the other Party (Indemnitee) from and against any and all losses, obligations, liabilities, damages, claims which may be asserted against or sustained or incurred by the Indemnitee arising out of or related to any breach of any of the representations, warranties, agreements and covenants made by Indemnitor in this Contract; any bodily injury or death suffered by anyone; any property damage of any third Parties; or any wrongful and negligent act of Indemnitor that occurs under this Contract.

11.2    The provisions of this Article shall prevail over any conflicting or inconsistent provisions contained in any of the documents comprising this Contract, except to the extent that such provisions further restrict any Party’s liability.

12. COSTS AND CHARGES

12.1    In case that repair, making good, replacement or modification of the DFC Components Kits or any other Equipment thereof provided by Seller is required in accordance with this Contract, the Seller shall at its own expense make available at the Site the replacement parts necessary for the performance of the above.

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12.2    In the event that non-commercial cargo must be shipped due to reasons attributable to Seller, including the Seller’s errors in preparation of transport documents, or incorrect negotiation against the transport documents, Seller shall deliver such cargo to the Site and shall pay all costs including the ocean freight, premium, expenses for inland transportation to the Site, importation taxes, and custom duties.

12.3    In case any vessel arrangement made by the Seller without prior consent by or consultation with the Buyer, the Seller shall bear all associated costs and expenses including the ocean and/or air freight. In cases where Buyer arranges shipment of Equipment, Seller agrees to submit to Buyer in a timely manner the packing lists necessary for Buyer to arrange ship and/or shore cranes.

13. PATENTS, INTELLECTUAL PROPERTY AND CONFIDENTIALITY

13.1    The Seller shall indemnify and hold the Buyer or the Third Party Owner, its employees, engineers and agents harmless against all proximate costs, actions, claims and demands brought by a third party by reason or in consequence of any infringement by the Module, the DFC Component Kits or parts thereof, or by the use of process that have been supplied by the Seller as a result of engineering services, any patent, design patent, trade mark or copyright.

13.2    In the event that any claim is made or action is brought against the Buyer or the Third Party Owner, including its employees, engineers and/or agents, relating to such infringement, the Buyer shall promptly notify the Seller thereof and the Seller at its expense and option may request the assistance of the Buyer and shall conduct, on behalf of the Buyer all negotiations for settlement of such dispute or litigation as may arise therefrom.

13.3    If, in such a suit or proceedings, the Module, the DFC Component Kits or parts thereof are held to constitute an infringement and the use thereof is enjoined, Seller promptly shall, at its option and expense, either procure for Buyer the right to continue using such Module/DFC Component Kits, or replace such infringing Module/DFC Component Kits with non-infringing Module/DFC Component Kits which are equal to or better than the previous Module/DFC Component Kits, or modify the infringing Module/DFC Component Kits so that they become non-infringing without impairing the quality, performance or any guarantee on the original Module/DFC Component Kits, provided, however, that nothing contained herein shall be deemed to relieve Seller from its warranty obligations under the Contract.

13.4    Intellectual property and confidentiality

(A)     Buyer acknowledges that all of the Seller’s technology in and relating to the DFC Components provided by Seller, whether developed by or for Seller prior to or after the Effective Date of this Contract, is and shall remain the property of Seller or its third party licensors.

(B) Use of Confidential Information. All written information marked “proprietary” or “confidential” (or if oral, subsequently reduced to a writing so marked and delivered to the receiving Party within thirty (30) days of its oral disclosure) which the disclosing Party discloses to the receiving Party as a result of the provisions of this Contract, whether contained in blueprints, drawings, written reports, letters or memoranda, process descriptions, operating procedures, supplier lists and/or other written data, shall be treated as confidential unless (a) such information shall have been in the possession of the receiving Party prior to its receipt from the disclosing Party, (b) such information is or becomes part of the public knowledge or literature through no fault of the receiving Party, vendors or suppliers, (c) such information shall otherwise become available

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to receiving Party from a source other than the disclosing Party, said source not being violative of any obligation of secrecy with respect to such information, or (d) the furnishing or use of such information is required by any legal requirement or any Governmental Authority. Information which is so considered to be confidential shall be held by the receiving Party for its sole benefit and used only in accordance with this Contract; provided that the receiving Party may share proprietary or confidential information with its affiliates; and, further provided, that the receiving Party shall cause its Affiliates to restrict the use so as to be consistent with the terms of this Contract and to restrict disclosure to its employees, on a need-to-know basis, of any confidential or proprietary information shared with such affiliates. The receiving Party shall use all reasonable efforts to prevent the use of all or any part of such confidential information belonging to the disclosing Party in any other connection or the transmission thereof to third parties unless and until it has first obtained the written consent of the disclosing Party specifically authorizing such use or transmission. The Parties understand that information may be provided which is subject to a confidentiality agreement with a third party. The Parties agree that such information shall be held in confidence in accordance with the terms of the third party confidentiality agreement. No Party shall be obligated to divulge third party confidential information to the other Party. Any breach of the confidentiality provisions of this paragraph may be considered material breach of this agreement by the non-breaching Party. All obligations under this article shall apply mutatis mutandis to the Parties.

14. FORCE MAJEURE

14.1    Should either Party be prevented wholly or in part from fulfilling any of its obligations under the Contract for reasons of Force Majeure, such obligation shall be suspended to the extent and for as long as such obligation is affected by an event of Force Majeure and the Party suffering from such event of Force Majeure (the “Hindered Party”) shall be entitled to such extension of time to fulfill such obligation as may be reasonably necessary in view of circumstances, unless the Hindered Party fails to notify the other Party (the “Non-Hindered Party”) by fax or email of the date when such delay commenced, and reasons therefore within seven (7) days from the occurrence of such event of Force Majeure (the “FM Notice”). The Hindered Party shall try to use its commercially reasonable efforts to avoid or remove such causes of the Force Majeure, to mitigate the effect of an event of Force Majeure, and to complete performance of its obligations under the Contract with the reasonable promptness whenever such causes are removed.

14.2    If, after ninety (90) days from the date of the receipt by the Non-Hindered Party of the FM Notice, the Hindered Party is still prevented, for the reasons beyond its control, from continuing to perform its obligations under the Contract, then the Non-Hindered Party shall be entitled to terminate this Contract, without any liability to each other by delivering a written notice thereof to the Hindered Party.

15. DISPUTES AND ARBITRATION

15.1    Any dispute, action, claim or controversy of any kind arising from or in connection with this Contract (the “Dispute”) whether based on contract, tort, common law, equity, statute, regulation, order or otherwise, shall be resolved as follows:

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(i)    Upon written request of any Party, the Parties shall meet and attempt to resolve any such Dispute. Such meetings may take place via teleconference or videoconference. The Parties shall meet as often as the Parties reasonably deem necessary to discuss the problem in an effort to resolve the Dispute without the necessity of any formal proceeding.

(ii)    Formal proceedings for the resolution of a Dispute may not be commenced until the later of (i) the Parties concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely; or (ii) the expiration of a sixty (60) day period immediately following the initial request by either Party to resolve the Dispute; provided, however, that this Section will not be construed to prevent a Party from instituting formal proceedings earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors or to seek temporary or preliminary injunctive relief.

15.2    If the Parties are unable to resolve any Dispute pursuant Section 15.1, shall be finally settled under the Rules of Arbitration (the “Rules”) of the International Chamber of Commerce (the “ICC”) by three (3) arbitrators designated by the Parties. Each Party shall designate one arbitrator. The third arbitrator shall be designated by the two arbitrators designated by the Parties. If either Party fails to designate an arbitrator within thirty (30) days after the filing of the Dispute with the ICC, such arbitrator shall be appointed in the manner prescribed by the Rules. The seat of an arbitration proceeding hereunder shall be in Singapore and such arbitration proceeding shall be conducted in the English language. The decision or award of the arbitrators shall be in writing and is final and binding on both Parties. The arbitration panel shall award the prevailing Party its attorneys’ fees and costs, arbitration administrative fees, panel member fees and costs, and any other costs associated with the arbitration, the enforcement of any arbitration award and the costs and attorney’s fees involved in obtaining specific performance of an award; provided, however, that if the claims or defenses are granted in part and rejected in part, the arbitration panel shall proportionately allocate between the Parties those arbitration expenses in accordance with the outcomes; provided, further, that the attorney’s fees and costs of enforcing a specific performance arbitral award shall always be paid by the non-enforcing Party, unless the applicable action was determined to be without merit by final, non-appealable decision. The arbitration panel may only award damages as provided for under the terms of this Contract and in no event may award punitive, consequential and special damages. In the event of any conflict between the Rules and any provision of this Contract, this Contract shall govern.

16. TERMINATION AND ASSURANCE

16.1    Suspension and Termination due to the Seller’s Default

16.1.1 Buyer may suspend the delivery of and the progress payments for the remaining unshipped Items as indicated in Annex A in pursuance of Section 3.2.7 or Section 10.2.1(C). If the suspension according to this Section continues for more than ninety (90) days without appropriate remedy by Seller, this Contract shall automatically terminate in accordance with Section 16.1.3.

16.1.2 If the Seller should materially breach the provisions of this Contract other than as set forth in Section 16.1.3, Section 16.1.4 or Section 16.1.5, which breach is not cured within sixty (60) days following the Seller’s receipt from the Buyer’s notice of such breach, the Contract shall automatically terminate unless the Buyer waives such termination within thirty (30) days (or such longer time period as the Buyer and the Seller may hereafter agree in writing) after 60-day cure period end. In the event of such termination, Seller shall refund to Buyer all payments theretofore made to Seller, less direct costs and non-cancelable commitments already incurred by Seller for

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the manufacture and assembly of the DFC Component Kits that could have been delivered to Buyer but for such termination. Upon such termination, Seller shall also be (i) obligated to ship to Buyer all parts and material which Seller has purchased in fulfillment of this Contract, and for which Seller has received payment from Buyer prior to such termination and (ii) responsible for direct costs and non-cancelable commitments (if any) related to installation and assembly of the DFC Component Kits into the Module as well as of the Module into a complete Plant, which has been incurred by Buyer prior to the date of termination. Upon such automatic termination, Buyer shall take commercially reasonable steps to minimize the Seller’s expenses in cooperation with Seller.

16.1.3 Termination for Prolonged Suspension. In the event that the suspension continues for more than ninety (90) days in pursuance of Section 16.1.1, then this Contract shall automatically terminate unless the Buyer waives such termination within thirty (30) days (or such longer time period as the Buyer and the Seller may hereafter agree in writing) after the 90 day suspension period pursuant to Section 16.1.1 ends. In the event of such termination, Seller shall refund to Buyer all payments theretofore made to Seller, less direct costs and non-cancelable commitments already incurred by Seller for the manufacture and assembly of the DFC Component Kits that could have been delivered to Buyer but for such termination. Upon such termination, Seller shall also be (i) obligated to ship to Buyer all parts and material which Seller has purchased in fulfillment of this Contract, and for which Seller has received payment from Buyer prior to such termination and (ii) responsible for direct costs and non-cancelable commitments (if any) related to installation and assembly of the DFC Component Kits into the Module as well as of the Module into a complete Plant, which has been incurred by Buyer prior to the date of termination. Upon such automatic termination, Buyer shall take commercially reasonable steps to minimize the Seller’s expenses in cooperation with Seller.

16.1.4 Termination for Delivery Delay. In the event that the liquidated damage due to the delay in delivery of any DFC Components or any Equipment under Article 6.3 or Article 10.2.3 has reached the maximum amount set forth in each Section, then the Contract shall automatically terminate unless the Buyer waives such termination within thirty (30) days (or such longer period as the Buyer and the Seller may hereafter agree in writing) after the date on which the liquidated damages has reached such amount. In the event of such termination, Seller shall refund to Buyer all payments theretofore made to Seller, less direct costs and non-cancelable commitments already incurred by Seller for the manufacture and assembly of the DFC Component Kits that could have been delivered to Buyer but for such termination. Upon such termination, Seller shall also be (i) obligated to ship to Buyer all parts and material which Seller has purchased in fulfillment of this Contract, and for which Seller has received payment from Buyer prior to such termination and (ii) responsible for direct costs and non-cancelable commitments (if any) related to installation and assembly of the DFC Component Kits into the Module as well as of the Module into a complete Plant, which has been incurred by Buyer prior to the date of termination. Upon such automatic termination, Buyer shall take its commercially reasonable steps to minimize the Seller’s expenses in cooperation with Seller.

16.1.5 Termination for Insolvency Event. In the event that:

(a) FCE becomes bankrupt, insolvent, dissolves, takes steps to obtain or obtains or is granted a court decision for the suspension of payment obligations or institutes reorganization, liquidation or any similar proceedings;

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(b) A trustee, administrator, liquidator, custodian, provisional manager, or similar Person in a proceeding referred to in paragraph (a) above is appointed (i) with consent, approval or non-objection of FCE, or (b) if FCE has objected to or has not consented to or approved of such appointment, such appointment has not been set aside or stayed within sixty (60) days of the date thereof; or

(c) A court having jurisdiction enters an order winding-up or otherwise confirming the bankruptcy or insolvency of FCE, which order or confirmation (i) is made with the consent, approval or non-objection of FCE, or (ii) if FCE has objected to or has not consented to or approved of such order or confirmation, such order or confirmation has not been set aside or stayed within sixty (60) days of the date hereof,

then the Contract shall automatically terminate. In the event of such termination Seller shall refund to Buyer all payments theretofore made to Seller, less direct costs and non-cancelable commitments already incurred by Seller for the manufacture and assembly of the DFC Component Kits that could have been delivered to Buyer but for such termination. Upon such termination, Seller shall also be (i) obligated to ship to Buyer all parts and material which Seller has purchased in fulfillment of this Contract, and for which Seller has received payment from Buyer prior to such termination and (ii) responsible for direct costs and non-cancelable commitments (if any) related to installation and assembly of the DFC Component Kits into the Module as well as of the Module into a complete Plant, which has been incurred by Buyer prior to the date of termination. Upon such automatic termination, Buyer shall take commercially reasonable steps to minimize the Seller’s expenses in cooperation with Seller.

16.2 Termination Due to the Buyer’s Default

16.2.1 In the event of a payment-related material breach of this Contract by Buyer which extends longer than thirty (30) days after the date payment is due, then Seller may, at its option, either (i) stop work, terminate the Contract for breach and initiate suit for collection of outstanding balances; or (ii) stop work, invoice Buyer in advance for all remaining payments due under this Contract, and continue performance of this Contract upon receipt of such payments from Buyer, with appropriate schedule adjustments needed for any delay.

16.2.2 If Buyer elects to delay authorizing shipment of the Module Kits with scheduled EXW shipment dates pursuant to the schedule in Annex A through no fault of Seller, and such delay is extended for more than 120 days for any such given Module Kit or two or more such Module Kits for more than 60 days each, then Seller may, at its sole discretion, terminate this Contract by providing written notice to Buyer, and in the event of such termination, Seller shall be entitled to retain advance payments received up to such date as Seller’s cost coverage and damage award. Buyer shall be responsible for direct costs and non-cancelable commitments (if any) already incurred by Seller for the manufacture and assembly of the DFC Component Kits that could have been delivered to Buyer but for such termination in excess of the advance payments received up to the time of such termination. Upon such termination, Seller shall take commercially reasonable steps to minimize the Buyer’s expenses in cooperation with Buyer.

16.3    Termination for Other Causes

This Contract may be terminated by either Party (i) due to a Force Majeure event that exceeds the period set forth in Article 14.2; or (ii) if a change in any Applicable Law would materially and adversely affect any rights or obligations of any Party and the Parties under this Contract, in their exercise of commercially reasonable good faith efforts, failed to agree to an appropriate modification or an amendment of the terms and conditions of this Contract, after complying with the procedures set forth in Article 21 below. In addition,

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if there exist reasonable grounds to doubt either the Buyer's or the Seller's ability to perform its obligations under this Contract in full, then the other Party shall have the right to demand assurances for adequate performance. If no such assurances are provided within sixty (60) days of the request, then the Party demanding assurances may terminate this Contract on written notice to the other Party.

16.4    Seller and Buyer understand and agree that any suspension, termination, or other action provided for under this Section 16 shall be subject to the terms of Section 15 “Disputes and Arbitration,” including to a stay issued pursuant to such proceedings pending the outcome of the resolution of such proceedings.

17. ASSIGNMENT AND SUB-CONTRACTING

17.1    Except as provided in Section 10.4.2, neither Party shall, without the consent in writing of the other Party, which shall not be unreasonably withheld, assign or transfer the Contract or the benefits or obligations thereof or any part thereof to any person. Any such placing of sub-orders shall not relieve the Seller from its obligations under the Contract.

18. TAXES AND DUTIES

18.1    The Seller shall pay and bear all the taxes, charges, customs duties and tariffs for the sale or export of the DFC Component Kits assessed or imposed on the Seller by the government or other competent authorities of the Seller's country in relation to the Contract, subject to the provisions of Article 6.1.1 above.

18.2    The Buyer shall pay and bear all the taxes, charges, customs, duties and tariffs for the purchase or import of the DFC Component Kits assessed or imposed on the Buyer by the government or other competent authorities of the Republic of Korea in relation to the Contract, subject to the provisions of Article 6.1.1 above.

18.3    In case the Seller is required to collect the VAT from the Buyer, the Seller shall invoice to the Buyer. The Buyer shall then pay such VAT amount to the Seller within thirty (30) days after receipt of the invoice, or shall reimburse the Seller within thirty (30) days after receipt of the Seller’s invoice and evidence of payment in case the Seller is required to pay the VAT in advance.

18.4    The Buyer shall bear any and all import duties and related taxes imposed by the Korean Government on the imported DFC Component Kits and/or materials, and it shall be responsible for any and all matters relating to customs clearance.

19. GOVERNING LAW

The Contract shall be governed, interpreted and construed under the laws of the State of New York.

20. LOCAL LAW COMPLIANCE

20.1    Local Law Compliance

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20.1.1    The Seller shall comply with, and cause its personnel to comply with, all applicable laws of the Republic of Korea and any political subdivision thereof, in the performance of its duties under this Contract.

20.1.2    The Buyer shall be responsible for obtaining the necessary certifications, approvals, licenses, permits and authorizations from the applicable Korean governmental authorities (the “Approvals”) to perform its obligations under this Contract.

20.1.3.    The Parties acknowledge and agree that the FCE technology contained in the DFC Components Kits supplied by the Seller under this Contract is a new generating technology, with codes and standards still under development; therefore, securing the applicable permits and other authorizations may require significant interaction with and education of the applicable Korean regulatory authorities. The Seller agrees to provide commercially reasonable cooperation to Korean regulatory authorities pursuant to this Section. For the avoidance of doubt, in the event that Buyer is required to obtain the Approvals for the DFC Components Kits and/or any other Equipment thereof supplied by the Seller under this Contract, the Seller shall cooperate with the Buyer in obtaining such Approvals including, without limitation, by providing drawings, specifications and/or any other documentation required by the Korean governmental authorities.

21. ADDITION AND AMENDMENT

No modification, alteration, addition or change in the terms hereof shall be binding on the Parties hereto, unless it is reduced to writing in the English language and duly executed by the Parties hereto in the same manner as the execution of the Contract and subject to such government approval as may be required under the applicable laws and regulations of the countries concerned.

22. NOTICE

All notices pursuant to this Contract including daily communication to be given to either Party will be deemed to have been duly given if delivered personally or by internationally recognized courier service, or by facsimile, to the addresses set forth below. Either Party may change its address by giving prior notice to the other Party in the same manner set forth hereinabove.

For the Buyer:

*

Ms. Ji-Hyung Kim, Esq.

General Counsel

Legal Affairs Team

POSCO Energy

POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul 135-777, Korea

phone 82-2-3457-2026

facsimile 82-2-3457-2115

kim.jihyung@poscoenergy.com

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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For the Seller:

Mr. Ross M. Levine, Esq.

Vice President, Legal Affairs

FuelCell Energy Inc.

3 Great Pasture Road

Danbury, CT 06813

phone 203 825 6057

facsimile: 203 825 6069

rlevine@fce.com

23. ENTIRE CONTRACT

The Contract sets forth the entire agreement and understandings between the Parties as to the subject matter of this Contract. It supersedes upon effectiveness of the Contract all prior discussions, agreements and understandings of any and every nature between them.

24. PUBLICITY

Neither Party shall engage in any advertising, sales promotion, press releases, public announcements, articles for journals or any other publications, or presentation material for any meeting, seminar or conference, or any other publicity matter relating to this Contract wherein the name of the other Party, its logo and/or trademark, or that of its parent company or any of its affiliates is mentioned or otherwise identifiable; or wherein any aspect of this project is mentioned or identified, without the prior written consent of the other Party.

25. CONSEQUENTIAL DAMAGES

Except as may be otherwise agreed between the Parties, or expressly set forth to the contrary in this Contract, neither Party shall be liable to the other for any incidental, indirect, special or consequential damages, however caused, and based on any theory of liability, arising out of or related to the performance of this Contract.

26. INSURANCE

Each Party shall maintain the following insurance coverage written with carriers authorized to insure risks at the Site location, with the other Party named as additional insured, providing thirty (30) days written notification of cancellation:

27.1    Worker's Compensation providing statutory limits and coverage and Employer's Liability, in an amount not less than $500,000 policy limit; and,

27.2    Commercial General Liability covering bodily injury (including death) and property damage in an amount not less than One Million Dollars ($1,000,000) per occurrence; including Premises Operations, Contractual Liability, Products and Completed Operations, and Broad Form Property Damage.

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27.3    Commercial Automobile Liability in an amount not less than One Million Dollars ($1,000,000) combined single limit per accident, covering all owned, non-owned, leased, rented or hired autos used in connection with the performance of this Contract.

27. COUNTERPARTS

This Contract may be executed by the Parties hereto in separate counterparts, by facsimile or electronically, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.

28. SEVERABILITY

If any provision of this Contract is invalid or unenforceable under any applicable statute or rule of law, then the remainder of this Contract shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any Party hereto. Upon determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Contract so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

29. WAIVER

No waiver shall be deemed to have been made by any Party of any of its rights under this Contract unless the same shall be in a writing that is signed on its behalf by its authorized officer. Any such waiver shall constitute a waiver only with respect to the specific matter described in such writing and shall in no way impair the rights of the Party granting such waiver in any other respect or at any other time.

30. SPARES

30.1 Seller and Buyer agree that if, during the period between the EXW shipment date of a DFC Module Kit supplied under this Contract and the conditioning of a DFC Module incorporating such DFC Module Kit, any defect(s) in NRC or RC of a DFC Module Kit (the “Cell Defect”), including physical breakage of NRC and/or RC and non-conformance of NRC and/or RC to Appendix B hereto, are found, Buyer shall be able to replace the defective portion of NRC and/or RC of such DFC Module Kit with the non-defective portion of NRC and/or RC of any DFC Module Kit purchased and delivered to Buyer under this Contract or any other Replacement from Buyer’s Inventory (the “Cell Replacement”). If any Cell Defect is attributable to Seller, Seller shall procure, at its own costs and expenses, the Cell Replacement in accordance with applicable warranty provisions in Article 10; provided that the period of warranty for the DFC Module Kit, of which a defective portion of NRC and/or RC are substituted with any Cell Replacement, shall be a period of twenty-one (21) months from the EXW shipment date of such DFC Module Kit with the Cell Defect. If any Cell Defect is incurred in transit after the EXW shipment date of the DFC Module Kit with such Cell Defect, or is caused by a handling mistake by the Buyer’s personnel during the assembly of a DFC Module, or is incurred during a continuity check of DFC Module being assembled, or for any other purposes of the Cell Replacement, Buyer shall be able to purchase from Seller a certain amount of DFC Module Kits or any other Equipment thereof for Buyer to use as spares, with pricing as indicated in Article 2 of Appendix C of this Contract.

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IN WITNESS WHEREOF, the Parties have executed this Contract on the day and year above written.

POSCO Energy Co. Ltd.

/s/ Chang Kwan Oh

Chang Kwan Oh

President & CEO

POSCO Energy Co. Ltd.

Signing date: October 31, 2012

FuelCell Energy, Inc.

/s/ Arthur A. Bottone

Arthur A. Bottone

President & CEO

FuelCell Energy, Inc.

Signing date: October 31, 2012

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ANNEX A

Delivery Schedule, Equipment Description, and Contract Price

Part I – Delivery Schedule (all of the below Deliveries are DFC Module Kits with 1.4 MW output)

Contract Year	Item # overall	Item # by year	Kits per month	EXW Shipment Date	Contract Year	Item # overall	Item # by year	Kits per month	EXW Shipment Date
2013	73	1	2	8-May-13	2015	117	4	2	19-Dec-14
2013	74	2	2	22-May-13	2015	118	5	2	7-Jan-15
2013	75	3	2	12-Jun-13	2015	119	6	2	23-Jan-15
2013	76	4	2	26-Jun-13	2015	120	7	2	6-Feb-15
2013	77	5	2	10-Jul-13	2015	121	8	2	20-Feb-15
2013	78	6	2	24-Jul-13	2015	122	9	2	6-Mar-15
2013	79	7	2	14-Aug-13	2015	123	10	2	20-Mar-15
2013	80	8	2	28-Aug-13	2015	124	11	2	3-Apr-15
2013	81	9	2	11-Sep-13	2015	125	12	2	17-Apr-15
2013	82	10	2	25-Sep-13	2015	126	13	2	8-May-15
2013	83	11	2	9-Oct-13	2015	127	14	2	22-May-15
2013	84	12	2	23-Oct-13	2015	128	15	2	5-Jun-15
2014	85	1	2	8-Nov-13	2015	129	16	2	19-Jun-15
2014	86	2	2	22-Nov-13	2015	130	17	2	10-Jul-15
2014	87	3	2	6-Dec-13	2015	131	18	2	24-Jul-15
2014	88	4	2	20-Dec-13	2015	132	19	2	7-Aug-15
2014	89	5	3	7-Jan-14	2015	133	20	2	21-Aug-15
2014	90	6	3	16-Jan-14	2015	134	21	2	4-Sep-15
2014	91	7	3	28-Jan-14	2015	135	22	2	18-Sep-15
2014	92	8	2	7-Feb-14	2015	136	23	2	5-Oct-15
2014	93	9	2	21-Feb-14	2015	137	24	2	19-Oct-15
2014	94	10	3	4-Mar-14	2016	138	1	2	6-Nov-15
2014	95	11	3	13-Mar-14	2016	139	2	2	20-Nov-15
2014	96	12	3	24-Mar-14	2016	140	3	2	4-Dec-15
2014	97	13	2	4-Apr-14	2016	141	4	2	18-Dec-15
2014	98	14	2	18-Apr-14	2016	142	5	2	8-Jan-16
2014	99	15	3	1-May-14	2016	143	6	2	22-Jan-16
2014	100	16	3	12-May-14	2016	144	7	2	5-Feb-16
2014	101	17	3	21-May-14	2016	145	8	2	19-Feb-16
2014	102	18	2	6-Jun-14	2016	146	9	2	4-Mar-16
2014	103	19	2	20-Jun-14	2016	147	10	2	18-Mar-16
2014	104	20	3	2-Jul-14	2016	148	11	2	8-Apr-16
2014	105	21	3	14-Jul-14	2016	149	12	2	22-Apr-16
2014	106	22	3	23-Jul-14	2016	150	13	2	6-May-16
2014	107	23	2	1-Aug-14	2016	151	14	2	20-May-16
2014	108	24	2	22-Aug-14	2016	152	15	2	3-Jun-16
2014	109	25	3	3-Sep-14	2016	153	16	2	17-Jun-16
2014	110	26	3	12-Sep-14	2016	154	17	2	8-Jul-16
2014	111	27	3	23-Sep-14	2016	155	18	2	22-Jul-16
2014	112	28	2	10-Oct-14	2016	156	19	2	5-Aug-16
2014	113	29	2	24-Oct-14	2016	157	20	2	22-Aug-16
2015	114	1	2	7-Nov-14	2016	158	21	1	23-Sep-16
2015	115	2	2	21-Nov-14	2016	159	22	1	21-Oct-16
2015	116	3	2	5-Dec-14

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ANNEX A (continued)

Delivery Schedule, Equipment Description, and Contract Price

Part II – Contract Price

Contract Year	Description	Quantity	Price per Unit	Extended Price
2013	DFC Module Kits (1.4MW output)	12	*	*
2014	DFC Module Kits (1.4MW output)	29	*	*
2015	DFC Module Kits (1.4MW output)	24	*	*
2016	DFC Module Kits (1.4MW output)	22	*	*
			Contract Price:	$181,387,313.00

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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ANNEX B

DFC Module Kit Price Allocation

Part Number	Description	Order Qty	Unit Price	Extended Price
*	*	*	*	*

ANNEX C

Advance Payment Guarantees

(A)Seller shall deliver to Buyer an approved, unconditional and irrevocable Advance Payment Guarantee, in a form which shall be subject to prior approval of Buyer, in an amount equal to 44.7 % of the Contract Price for Contract Year 2013 and Contract Year 2014, in an amount equal to 47.9% of the Contract Price for Contract Year 2015, and in an amount equal to 48.6 % of the Contract Price for Contract Year 2016, in each case as indicated in Part II of Annex A, in accordance with provisions (B), (C) and (D) hereunder, which shall be valid from the date of each Contract Year’s first payment from Buyer to Seller until the full repayment of the amount of Advance Payment Guarantee by Seller.

(B)Seller shall deliver a bond from a bank, insurance or securities company approved by Buyer in the amount of six percent (6%) of the Contract Price for Contract Year 2013 and Contract Year 2014 as indicated in Part II of Annex A within seven (7) days after the Effective Date, Seller shall deliver a bond from a bank, insurance or securities company approved by Buyer in the amount of six percent (6%) of the Contract Price for Contract Year 2015 and Contract Year 2016 as indicated in Part II of Annex A on or prior to the date on which first payments for each Contract Year is due as defined in Section 4.2.4(A) and Section 4.4 of this Contract.

(C)Seller hereby assigns a lien and security interest to Buyer in pursuance of provisions (D) and (E) of this Annex C below, in order to compensate the difference between the amount of the Advance Payment Guarantee specified in the provision (A) of this Annex C and the bonds delivered by Seller for each Contract Year in accordance with the provision (B) of this Annex C above. If the amounts of advance payments made by Buyer to Seller are below the forty-four point seven percent (44.7%) of the Contract Price for Contact Year 2013 and Contract 2014, the forty-seven point nine percent (47.9%) of the Contract Price for Contract Year 2015 or the forty eight point six percent (48.6%) of the Contract Price for Contract Year 2016 at the time of termination under this Contract, the lien and security interest assigned by Buyer hereunder are to compensate only the difference between the amounts of advance payments made by Buyer to Seller in accordance with times and amounts specified in Sections 4.2.3. and 4.2.4, and the bonds delivered by Seller for applicable Contract Years. Seller shall use the advance payments made by Buyer only for the Seller’s

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

33

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performance of this Contract and for no other purposes. Seller shall provide the necessary documentation to perfect the assignment of the lien and security interest to Buyer, in pursuance of the provisions (D) and (E) of this Annex C below, at the same time as Seller delivers the bond to Buyer in accordance with the provision (B) of this Annex C or within seven (7) days from Seller’s purchases of the goods to be assigned, pledged and/or granted as collateral security to Buyer in accordance with the provision (D) of this Annex C.

(D)     Assignment, Pledge and Grant of Security Interest. As collateral security for the performance of this Contract, Seller hereby assigns, pledges, and grants to Buyer a lien on and continuing security interest in all of the Seller's right, title and interest in, to and under, all materials, parts and components purchased by Seller for performance of this Contract (the "Purchased Goods") whether now owned or hereafter acquired by the Seller and wherever located. Buyer shall be the first lien-holder and the first creditor of the security interest in the Purchased Goods. Seller shall retain possession of all such Purchased Goods for use in performance of this Contract and shall be entitled to use all Purchased Goods in all manufacturing efforts as required under this Contract for incorporation of the Purchased Goods into the Module Kits being supplied under this Contract. Seller shall be responsible for insurance and risk of loss of the Purchased Goods until such time that title to the Module Kits in which the Purchased Goods are incorporated passes to Buyer. In the event of termination of this Contract for any reason, Seller shall make an accounting to Buyer of all Purchased Goods for which title has passed to Buyer, but which have not been consumed in production of the Module Kits, and shall thereupon promptly either (a) deliver all such Purchased Goods to Buyer or Buyer's designee or (b) submit a proposal to Buyer for Seller to purchase all or a portion of the Purchased Goods from Buyer. Buyer may, at its sole discretion, accept or reject the proposal for such purchase. If Buyer rejects the purchase proposal by Seller, Seller shall promptly deliver the Purchased Goods to Buyer. In case Seller proposes to purchase only a portion of such Purchased Goods, and Buyer accepts such proposal, Seller shall promptly deliver the remaining Purchased Goods to Buyer.

(E) UCC Financing Statement. It is the intention of the Parties that the Security Interest and Lien granted in the provision (D) of this Annex C above shall be recorded by the filing of a UCC Financing Statement with the Office of the Secretary of State of the State of Connecticut. Seller agrees that from time to time, Seller shall promptly execute and deliver all instruments and documents, and take all action, including, without limitation, security or assignment agreement(s) between Buyer and Seller and/or among Seller and Seller’s suppliers, that may be reasonably necessary or desirable, or that Buyer may reasonably request, in order to perfect and protect the lien and security interest granted hereby or to enable Buyer to exercise and enforce its rights and remedies hereunder with respect to the Purchased Goods. In all security or assignment agreement(s) that Seller may enter into with its suppliers of materials to be provided under this Contract, Seller shall include a provision that such agreement(s) shall be assignable to Buyer without approval of such suppliers. Without limiting the generality of the foregoing, Seller (i) at the request of Buyer, shall execute such instruments, endorsements or notices, as may be reasonably necessary or desirable or as Buyer may reasonably request, in order to perfect and preserve the assignments and security interests granted hereby, and (ii) authorizes Buyer to file any financing statements, amendments or continuations without the signature of the Seller to the extent permitted by applicable law in order to perfect or maintain the perfection of the security interest granted under this Contract.

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APPENDIX A

Specifications for DFC® Stack Modules

C1400 Stack Module Specification

1.0    Introduction

This specification document describes the interfaces and functional operation of the C1400 Direct FuelCell ® (DFC®) stack module. The C1400 stack module is comprised of four DFC stack modules, and the associated enclosure and process and electrical connections. When operated in a standard FCE DFC3000 BOP, two of these modules produce enough DC power to provide a net AC (after powerplant parasitic loads) of 2.8 MW at ISO conditions.

2.0    Scope

This document describes one C1400 module. The specification provides preliminary dimensional and interface data that can be used for planning and design. Final drawings will be provided as part of formal project data submittal.

3.0     Specifications

3.1    Dimensions and Weights

Height:    166.25 inches

Width:    161.5 inches

Length:    226 inches

Detailed dimensional information is provided on drawing 20536

Weight:    100,000 lbs

3.2    Mechanical Interfaces

3.2.1    Piping Interfaces

*

3.3    Civil Interfaces

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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3.4    Electrical and Control Interfaces

3.4.1    DC Connections

*

3.4.2    Grounding

*

3.4.3    Control Power

*

3.4.4     Module I/O

*

3.5    Performance Specification

Table 1 summarizes the projected output from the stack module at rated load. This table shows the DC output from the stack module, which is comprised of the output from four DFC stacks connected as two parallel strings, each with two series-connected stacks.

Table 1

Nominal Stack Module Output at Rated Load

*

This performance is for a powerplant operating at sea level atmospheric pressure. Module DC voltage will reduce by 2 volts for every 1000 feet of elevation above sea level due to reduced cell electrochemical performance at lower pressure. In addition to this module power output decrease, there will also be BOP impacts on power and efficiency due to elevation and ambient temperature, depending on the BOP design.

This performance requires the proper supply of process gasses to the module. Table 2 shows the process flows required for rated operation.

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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Table 2

Fuel and Air Gas Flows Needed to Produce Specified DC Output

	Anode Inlet, Natural Gas Fuel		Anode Inlet, Digester Gas Fuel		Air Flow (at module inlet, after air blower, combination of primary and secondary air)
Temperature, deg F	*		*		*
Volume Flow, SCFM	*		*		*
Molar Flow, lbmol/hour	*		*		*
Mass Flow, lb/h	*		*		*
Components	lb-mole/hr	mole %	lb-mole/hr	mole %	lb-mole/hr	mole %
Hydrogen	*	*	*	*	*	*
Methane	*	*	*	*	*	*
Carbon Monoxide	*	*	*	*	*	*
Carbon Dioxide	*	*	*	*	*	*
Water	*	*	*	*	*	*
Nitrogen	*	*	*	*	*	*
Oxygen	*	*	*	*	*	*
Total	*	*	*	*	*	*

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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Table 3

Contaminant Limits for Fuel and Air Process Streams

Contaminant	Air limit, ppb	Fuel limit, ppb
Total sulfur compounds	*	*
Total halogens, halides, or hypochlorite	*	*
Particulates	*	*
Siloxanes	*	*
Metals	*	*
Mercury	*	*
Lead	*	*
Selenium	*	*
Cadmium	*	*
Arsenic	*	*
Vanadium	*	*
Tin	*	*
Potassium	*	*
Sodium	*	*
Zinc	*	*
Barium	*	*
Iron	*	*
Chromium	*	*

*

3.6    Stack Module Life

*

Table 4

Life Impacts of Stack Operation Transients

Life Impacting Event	Allowed in 5 year life		Allowed per year		Impact on life if exceeded
*	*	*	*	*	*	*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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APPENDIX B

DFC Components Specifications

C1400 Stack Module Kit Scope Specification

1.0    Introduction

This specification describes scope of supply for Direct FuelCell stack module component kits, which will be used in the assembly of C1400 stack modules. Detailed documentation including drawings, part numbers, part descriptions, UoM and quantities relating to DFC Components, based on the Seller’s latest technical information, are continuously and regularly updated by Seller, and notified and made available to Buyer on Seller’s web-portal system designated by Seller as *.

2.0    Scope

This document describes the component kit for one C1400 module.

3.0     Specifications

3.1    Dimensions and Weights

Total weight of component kit: 100,000 lbs plus packaging weight

Components are to be provided in multiple skids. The following table provides the individual dimensions and weights:

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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Gaylord Pack or Crate	Dimensions	Weight	Gaylord Pack or Crate	Dimensions	Weight
Gaylord #1	41"x41"x34"	888 lbs	A6	156"x 8"x 8"	500 lbs
Gaylord #2	54"x47"x40"	636 lbs	A7	114" x 45" x 34"	365 lbs
Gaylord #3	55"x48"x39"	283 lbs	A8	114" x 45" x 34"	365 lbs
Gaylord #4	64"x64"x30"	1213 lbs	A9	73" x 41" x 27"	312 lbs
Gaylord #5	65"x41"x29"	882 lbs	A10	48" x 24" x 17"	180 lbs
Gaylord #6	65"x41"x29"	882 lbs	Crate 1 of 26	67"x37"x39"	2140 lbs
Gaylord #7	65"x41"x29"	882 lbs	Crate 2 of 26	67"x37"x39"	2140 lbs
Gaylord #8	65"x41"x29"	882 lbs	Crate 3 of 26	67"x37"x39"	2140 lbs
Gaylord #9	57"x35"x32"	784 lbs	Crate 4 of 26	67"x37"x39"	2140 lbs
Gaylord #10	57"x35"x32"	784 lbs	Crate 5 of 26	67"x37"x39"	2140 lbs
Gaylord #11	57"x35"x32"	784 lbs	Crate 6 of 26	67"x37"x39"	2140 lbs
Gaylord #12	57"x35"x32"	784 lbs	Crate 7 of 26	67"x37"x39"	2140 lbs
Gaylord #13	53"x50"x22"	2370 lbs	Crate 8 of 26	67"x37"x39"	2140 lbs
Gaylord #14	53"x50"x22"	2370 lbs	Crate 9 of 26	67"x37"x39"	2140 lbs
Gaylord #15	53"x50"x22"	2370 lbs	Crate 10 of 26	67"x37"x39"	2140 lbs
Gaylord #16	53"x50"x22"	2370 lbs	Crate 11 of 26	67"x37"x39"	2140 lbs
Gaylord #19 & #20	42"x37"x66"	143 lbs	Crate 12 of 26	67"x37"x39"	2140 lbs
Gaylord #21 & #22	42"x37"x66"	143 lbs	Crate 13 of 26	67"x37"x39"	2140 lbs
TRPack #24	128"x68"x43"	1987 lbs	Crate 14 of 26	67"x37"x39"	2140 lbs
TRPack #25	128"x68"x43"	1987 lbs	Crate 15 of 26	67"x37"x39"	2140 lbs
TRPack #26	128"x68"x58"	2579 lbs	Crate 16 of 26	67"x37"x39"	2140 lbs
TRPack #27	128"x68"x58"	2579 lbs	Crate 17 of 26	67"x37"x39"	2140 lbs
TRPack #28	96"x37"x18"	219 lbs	Crate 18 of 26	67"x37"x39"	2140 lbs
TRPack #29	147"x6"diameter	13 lbs	Crate 19 of 26	67"x37"x39"	2140 lbs
TRPack #30	112"x23"x22"	351 lbs	Crate 20 of 26	67"x37"x39"	2140 lbs
TRPack #31	75"x51"x36"	297 lbs	Crate 21 of 26	67"x37"x39"	2140 lbs
TRPack #32	60"x44"x30"	249 lbs	Crate 22 of 26	67"x37"x39"	2140 lbs
TRPack #34	128"x48"x68"	1998 lbs	Crate 23 of 26	67"x37"x39"	2140 lbs
TRPack #35	55"x55"x83"	574 lbs	Crate 24 of 26	67"x37"x39"	2140 lbs
TRPack #36	44"x44"x56"	329 lbs	Crate 25 of 26	67"x37"x39"	2140 lbs
TRPack #37	75"x35"x29"	724 lbs	Crate 26 of 26	67"x37"x39"	2140 lbs
TRPack #38	44"x44"x47"	592 lbs	Crate 1 of 1	67"x37"x39"	1885 lbs
TRPack #39	44"x44"x70"	603 lbs	Crate 1 of 7	63"x37"x30"	1170 lbs
TRPack #40	44"x49"x42"	359 lbs	Crate 2 of 7	63"x37"x30"	1170 lbs
Vessel & Base Assembly	19'4.5"x13'6.5"x13'2-5/8"	34750 lbs	Crate 3 of 7	63"x37"x30"	1170 lbs
A1	99" x 84" x 19"	1002 lbs	Crate 4 of 7	63"x37"x30"	1170 lbs
A2	45"x12"x11"	200 lbs	Crate 5 of 7	63"x37"x30"	1170 lbs
A3	140" x 68" x 32 "	1144 lbs	Crate 6 of 7	63"x37"x30"	1170 lbs
A4	48"x 41"x 33"	160 lbs	Crate 7 of 7	63"x37"x30"	1170 lbs
A5	54"x 42"x 23"	342 lbs	Crate 1 of 1	63"x37"x30"	1180 lbs

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3.2 Repeating Component Subassembly listing.

Item	Numbers per Kit
Cell Packages	1,300
Reforming Units	264
Matrix	1,604
End Cells	8
Low Fill	20
High Fill	16

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APPENDIX C

Spare Parts Procurement Procedures

1. General Procedures

1.1. Seller agrees that Buyer has a right to use Buyer’s existing components of RC and NRC supplied by Seller and stored in Buyer’s inventory.

1.2. Buyer agrees to apply ‘First-In, First-Out’ (“FIFO”) inventory management consuming the oldest inventory items first.

1.3. If any DFC components delivered by Seller are found to be defective or deficient, Buyer bears the responsibility of claiming the defect or deficiency to the Seller using Seller’s stacking log system within 48 hours after the initial finding. Seller shall avoid Buyer’s production stoppage by enabling Buyer to replace the claimed parts with components from the next available kit item or from Buyer’s spares inventory during the process of Seller’s warranty disposition of claimed component.

1.4. For the purpose of reducing human error and mistakes, manual data logging is not allowed during Buyer’s final assembly operation.

1.5. During all stages of assembly and test of DFC modules by Buyer, Seller shall maintain the right to have its technical representative(s) present at Buyer’s Plant at the Seller’s own cost, for the purpose of ensuring Buyer’s compliance to Seller’s standard procedures and quality standard. The performance of the aforesaid functions by the Seller’s technical representative(s) shall in no way relieve Buyer of its obligations under this agreement.

1.6 Failure to adhere to the above requirements by Buyer may void Seller’s warranties.

2. Pricing

2.1. Preannounced Replenishment of Spares. Subject to the requirements set forth below, Seller agrees to provide spare RC and NRC components with pricing outlined in Annex B of this Contract.

2.1.1. Purchase Quantity Requirement. Buyer agrees that spares purchase quantity should amount to the minimum RC packing unit as defined in Appendix C Table 8A for the purpose of reducing cost of logistics.

2.1.2. Lead time. The Parties agree that Seller requires minimum 12 months lead time for Seller’s production planning and resource arrangement.

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2.2. Special Replenishment of Spares. Seller agrees to provide special shipment(s) of replacement kit components with the pricing outlined in Section 8 of this Appendix, provided Buyer’s replenishment request fails to meet the condition set forth in section 2.1.1 or section 2.1.2 above.

3. Payment Terms. 100% amount shall be invoiced upon Purchase Order. Payments shall be due 30 days from the invoice date.

4. Deliveries

4.1. Place. All Spares are to be shipped on the basis of EXW Seller’s delivery site.

4.2. Transport Documents. As soon as each shipment, as provided for in this Article, is made, Seller shall send to Buyer complete sets of documents, Three (3) sets via the ship's master and Three (3) sets by air courier service and by electronic mail, each set consisting of the following transport documents:

(1) A clean on board bill of lading;

(2) A commercial invoice;

(3) A packing list.

In case (i) such documents described above fail to be submitted to Buyer prior to the arrival date of each shipment at the discharging port due to Seller’s fault, or (ii) any shipment fails to be released from the discharging port or to pass any customs clearance due to any omission or error in such documents described above, Seller shall bear all costs and expenses incurred therefrom.

5. Warranties, Remedies and Limitations

5.1. Warranty. Only Manufacturers’ standard warranty shall be in effect for all material purchased herein. This warranty period is 21 months from Ex Works delivery.

5.2. Title. Seller warrants to Buyer that it will convey good title to the goods sold hereunder. Seller's liability and Buyer's remedy under this warranty are limited to the removal of any title defect or, at the election of Seller, to the replacement of the goods or parts thereof which are defective in title.

5.3. Seller shall not be liable and the Warranties stipulated in this Article shall not apply if and to the extent that the Equipment damaged or altered pursuant to the following:

5.3.1. Damage in transit, improper storage or handling, incorrect or negligent operations or improper maintenance;

5.3.2. Any alterations made by Buyer without the consent of Seller;

5.3.3. Normal wear and tear.

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5.4. Exclusive Remedy. Except as otherwise set forth herein, the remedies set forth in this Article are the exclusive remedies for all claims based on failure of or defect in the Equipment provided under this Contract, whether the failure or defect arises before or during the warranty period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.

5.5 The provisions under this Article 5. Warranties, Remedies and Limitations are guidance only, and shall not be interpreted as the commercial terms of any Purchase Order.

6. Liquidated Damages

6.1. Liquidated Damages for Delayed Delivery: In the event the EXW delivery date of the Equipment is delayed beyond 12 months from Buyer’s issuance of Purchase Order for Preannounced Replenishment or dates indicated in Appendix B for Special Replenishment through the fault of the Seller, the Buyer is entitled to claim liquidated damages per day of delay in an amount equivalent to 0.11% of the price for the delayed Equipment. Such liquidated damages shall not exceed seven percent (7%) of the price of the delayed Equipment. In no event shall Seller be considered liable for any cost, expense or consequence of any nature by Buyer for any late deliveries by any vendor or supplier of any of the goods or materials being provided under this Contract.

6.2 The provisions under this Article 6. Liquidated Damages are guidance only, and shall not be interpreted as the commercial terms of any Purchase Order.

7. Templates of RC packages with Minimum Quantity Requirement

7.1. POSCO Energy shall use the templates indicated in Table 8.A for ordering RC.

7.2. Each template shows minimum quantity requirement per standard shipping unit (crate) with constituent parts of standard packing unit for RC shipment.

7.3. Each RC spares purchase shall consist of identification of templates required by POSCO Energy and the order quantity of each template.

8. Pricing for Special Replenishment Spares

8.1 Minimum quantities, prices and lead time of each component are listed in Table 8.A below. Purchase orders must comply with these values in order to be processed by FCE.

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8.2 Items less than $200 requires a transaction cost of $200 and minimum shipping quantities.    

Table 8.A

part number	part description	qty	UoM	lead time (weeks)	EXW FCE price each	EXW FCE price ext
*	*	*	*	*	*	*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

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EX-10.2

Exhibit 10.2

[Execution Copy]

CELL TECHNOLOGY TRANSFER AND LICENSE AGREEMENT

dated as of October 31, 2012

between

FUELCELL ENERGY, INC.

and

POSCO ENERGY CO., LTD.

Confidential treatment requested as to certain portions of this exhibit marked with an *. Such portions have been redacted and filed separately with the SEC.

1

I. DEFINITIONS	6
II. LICENSE GRANT	14
2.1 FCE Technology License	14
2.2 Grant of Distribution Rights	14
2.3 POSCO Technology License	15
2.4 (a) License to POSCO Energy Upon Expiration of the Term	15
2.4 (b) License to FCE Upon Expiration of the Term	16
2.5 Use of “FCE” Trademarks	16
2.6 Transfer of Technical Data	16
2.7 Joint Committee(s)	17
2.8 Regular Exchange of Technical Data	18
2.9 New Product Development and Improvements	18
2.10 Joint Development of New Application Technology and New Application Products	18
III. OWNERSHIP OF INTELLECTUAL PROPERTY	18
3.1 Ownership of FCE Technology	18
3.2 Ownership of POSCO Technology	18
3.3 Jointly Developed Technology	19
IV. ROYALTIES	19
4.1 Royalty Payments.	19
4.2 No Other Royalties, Payments, Etc	20
4.3 Royalty Report.	20
4.4 Royalty Determination Firm	21
V. CUSTOMER RESPONSIBILITY	21
5.1 End User Warranty	21
VI. COVENANTS	21
6.1 POSCO Energy Obligations	21
6.2 FCE Obligations	22
6.3 DOE Approval	22
6.4 Other Third Party Approvals	22
6.5 Notification of Certain Matters	22
6.6 Obligations Relating to FCE Intellectual Property	22
6.7 Obligations Relating to POSOC Technology	23
6.8 DFC Technology	23
VII. REPRESENTATIONS AND WARRANTIES	23
7.1 Representations and Warranties of FCE	23
7.2 Representations and Warranties of POSCO Energy	25
VIII. TERM	26
8.1 Term	26
8.2 Extension	26
8.3 Effectiveness of this Agreement; Effective Date	26
IX. TERMINATION	26
9.1 Termination by Mutual Agreement	26

2

9.2 FCE Termination by Material Breach of POSCO Energy.	26
9.3 POSCO Energy Termination by Material Breach of FCE.	27
9.4 Return of FCE Technology	28
9.5 Return of POSCO Technology	28
9.6 Survival	29
X. INDEMNIFICATION	29
10.1 POSCO Energy Obligations	29
10.2 FCE Obligations	30
10.3 Limitation of Damage	30
XI. CONFIDENTIAL INFORMATION	30
11.1 Obligations of the Parties	31
11.2 POSCO Affiliate	31
11.3 FCE and POSCO Energy Obligations	31
11.4 Non-Competition	31
XII. NOTICES	32
XIII. ENTIRE AGREEMENT	33
XIV. APPLICABLE LAW AND ARBITRATION	33
14.1 Governing Law	33
14.2 Efforts to Resolve by Mutual Agreement	33
14.3 ICC Arbitration	34
14.4 Waiver of Jury Trial	34
XV. MISCELLANEOUS	34
15.1 Amendment; Waiver	34
15.2 Severability	35
15.3 Government Information	35
15.4 Independent Contractors	35
15.5 Assignment	35
15.6 No Third Party Beneficiary	35
15.7 Headings	36
15.8 Right to Injunction; Specific Performance	36
15.9 Force Majeure	36
15.10 Counterparts	36
15.11 Bankruptcy Rights	36
XVI. SALES TARGETS	37

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Exhibits:
Exhibit A:	CTTP
Exhibit B:	Form of DOE Approval
Exhibit C:	List of FCE Patents
Exhibit D:	Sales Targets
Schedules:
Schedule A:	POSCO Affiliates
Schedule B:	Countries of Asia Market and Non-Asia Market
Schedule C:	FCE Previously Granted Distribution Rights
Schedule D:	FCE Third Parties under a Confidentiality Agreement
Schedule E:	Roadmap

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THIS CELL TECHNOLOGY TRANSFER AND LICENSE AGREEMENT (this “Agreement”) is made and entered into this 31^st day of October, 2012, by and between FUELCELL ENERGY, INC., a Delaware corporation having a place of business at 3 Great Pasture Rd., Danbury, CT 06813, U.S.A. (“FCE”) and POSCO ENERGY CO., LTD. (formerly POSCO POWER), a Korean corporation having a place of business at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul 135-777, Korea (“POSCO Energy”).

RECITALS:

A. POSCO Energy and FCE are parties to a series of agreements identified as follows (collectively, the “Transaction Agreements”):

(i) the Alliance Agreement, dated as of February 7, 2007;

(ii) the Technology Transfer, Distribution and Licensing Agreement, dated as of February 7, 2007, (the “TTA”); and

(iii) the Stack Technology Transfer and License Agreement dated as of October 27, 2009 (the “STTA”).

B. The Parties entered into a Securities Purchase Agreement dated as of April 30, 2012;

C. The Parties simultaneously herewith, agree and acknowledge that the CTTP (defined below) attached hereto as Exhibit A, shall be a part of this Agreement.

D. FCE has developed technology for the conversion of gaseous methane based fuels into electricity using Molten Carbonate Fuel Cell (“MCFC”) technology known as the “Direct FuelCell®” (DFC®).

F. FCE wishes to grant a license of FCE Technology (defined below) to POSCO Energy and/or POSCO Affiliates and transfer FCE Technology and provide technical assistance and support to POSCO Energy. POSCO Energy wishes to accept such a license and receive FCE Technology, technical assistance and support, all in accordance with the terms of this Agreement and other Transaction Agreements (defined above), as applicable.

G. FCE shall provide necessary information and supports to POSCO Energy and POSCO Affiliates to have the proper technology, know-how, system and organization related to customer service.

H. The transfer of technology as described in this Agreement is in addition to the Transaction Agreements, and does not supersede those separate agreements, which remain in full force and effect. The Previous licenses granted for assembly of DFC Cells into DFC Modules, and integration of DFC Modules with BOP into DFC Plants, shall continue as established by the Transaction Agreements. During the process of such technology transfer,

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FCE shall exercise good faith and commercially reasonable efforts for POSCO Energy to understand the design process of DFC Cells using the information to be provided under this Agreement as well as the information having been provided under the Transaction Agreements.

I. POSCO Energy, together with the POSCO Affiliates (defined below), wishes to engage in the manufacture of fuel cell core components using FCE’s DFC Technology (hereafter “DFC Cells”) pursuant to the terms and conditions of this Agreement and to the technical plans in the CTTP and other attachments to this Agreement, and to continue in the commercialization of the DFC technologies in the Asia Market (defined below).

J. POSCO Energy wishes to grant a license of the POSCO Technology (defined below) to FCE for the purpose of allowing FCE to further improve and modify the DFC Cell technologies developed by FCE, in accordance with the terms of this Agreement and the other Transaction Agreements, as applicable.

K. The Parties acknowledge that DFC Cell manufacturing in Korea (defined below) under the license granted herein by FCE may achieve, among other things, cost reduction, product improvement, lead time improvement and service quality improvement. It is thus intended that POSCO Energy will engage, directly or indirectly through one or more POSCO Affiliates or independent third parties, in DFC Cell manufacturing in Korea on terms and conditions set forth herein.

NOW, THEREFORE, in consideration of the foregoing and the terms and conditions set forth below and intending to be legally bound, the parties agree as follows:

I. DEFINITIONS

As used in this Agreement, the following terms shall have the following respective meanings which are intended to define the scope of this Agreement:    

“Actual Losses” means all actual losses, costs, payments, and expenses arising out of or relating to a material breach of any representation or warranty or material failure to perform any obligation or undertaking to be performed under this Agreement.

“Additional Term” shall have the meaning set forth in Section 8.2.

“Applicable Laws” shall mean all applicable laws, treaties, ordinances, judgments, decrees, injunctions, writs, orders, rules, regulations, interpretations and permits of any Governmental Authority.

“Asia Market” shall mean those countries listed on Schedule B(I) hereunder.

“Balance of Plant” or “BOP” shall mean all subsystems for operation and generation of electrical power by DFCs in one or more stacks and including, but not limited to, fuel pre-treatment boilers, water recovery, fuel exhaust burner, inverter, control system, utility

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interface and start-up and stand-by equipment. For the avoidance of doubt, BOP shall mean all components of the DFC Power Plant other than the Fuel Cell Stack Module.

“Cell Technology Transfer and License Agreement” shall mean this Agreement.

“Cell Technology Transfer Program” or “CTTP” shall mean that certain document containing the detailed terms and schedules relating to the transfer by FCE of FCE Technology, including the scope of assistance and support provided, to POSCO Energy and POSCO Affiliates, as applicable, it being understood and agreed that, the CTTP shall be a part of this Agreement, as Exhibit A attached hereto.

“Dispute” shall have the meaning set forth in Section 14.2.

“DFC” shall mean FCE’s proprietary Direct FuelCell MCFC Technology, which includes, without limitation, any MCFC know-how and technology owned or controlled by FCE or any affiliate thereof.

“DFC Cells” shall have the same meaning as Repeating Components or RC as defined hereunder.

“DFC Components” means a quantity of Repeating Components (RC), Non-Repeating Components (NRC) and Module Components from which a complete Fuel Cell Stack Module may be assembled.

“DFC Module Kit” shall mean a set of components comprised of Module Components, NRC, and RC, which are manufactured wholly by FCE, in sufficient quantity for the subsequent assembly and conditioning by POSCO Energy of a complete Fuel Cell Stack Module.

“DFC Power Plant” shall mean the MCFC power plant comprising the Fuel Cell Stack Module and the BOP, and shall specifically exclude items of equipment such as foundations, structures, enclosures, transmission/distribution lines and interconnections, fuel lines, fuel preparation and clean-up equipment water drainage/removal, computer hardware and software and any other items related to the foregoing.

“DOE Approval” shall mean the necessary consent or approval from the U.S. Department of Energy, in form substantially similar to the form of DOE Approval set forth in Exhibit B attached hereto.

“Duplicate Royalties” shall have the meaning set forth in Section 4.1(c).

“Effective Date” shall mean the date upon which all the conditions set forth in Section 8.3 have been satisfied or waived by POSCO Energy.

“FCE Affiliates” shall mean those entities controlled by, or under common control with FCE as set forth in Schedule A.

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“Fuel Cell Stack” shall be comprised of RC and NRC as defined herein below.

“Fuel Cell Stack Module” shall mean the Module Components and the Fuel Cell Stack.

“Fuel Cell Component Assembly” shall mean a single complete fuel cell package assembled from RC.

“FCE Product Line” shall mean the Repeating Components, DFC Cells, Fuel Cell Component Assembly, Non-Repeating Components, Fuel Cell Stack, Module Components, Fuel Cell Stack Module, DFC Module Kit, DFC, DFC Components, MCFC, DFC Products, FCE Products, DFC Power Plant, and the Balance of Plant.

“FCE Products” shall mean DFC Power Plants which include, without limitation, currently designated DFC300, DFC1500 and DFC3000, respectively, and any product that is a modification or improvement of DFC300, DFC1500 and DFC3000, regardless of how designated by FCE, which are made available, or in the future may be made available, for commercial use or sale by FCE during the Term.

“FCE Know-How” shall mean all technical information, know-how, inventions (whether patented or not), trade secrets, version-up histories, and other technical, engineering and design information and data, as and when it becomes available, related to (a) the FCE Product Line, (b) the manufacture of FCE Product Line, and (c) access to and use thereof, including, without limitation, technical information, know-how, inventions (whether patented or not), and other technical, engineering and design information and data, detailed drawings, and bills of material. FCE Know-How shall, without limitation, include:

(i) the technology and know-how to manufacture RC, including but not limited to raw materials, anode, cathode, matrix, flow corrugation, bipolar plate, electrolyte, reforming unit, unitization/assembly of cell packages; 

(ii) the technology and know-how relating to RC Manufacturing Facilities, and RC Assessment, RC Repair, and RC Production Management, Work Progress Management, Quality Control, and RC Quality Assurance, Inspection and Testing Protocols, and RC Design, Stack Design and Diagnosis, as defined hereunder;

(iii) any improvements and/or derivations of the FCE Product Line, which, for the avoidance of doubt, includes any portion of the New Applications Technology that constitutes improvements and/or derivations to the DFC Cells;

(iv) all technical information, know-how and other technical, engineering and design information and data, as available and/or currently used by FCE, including all information and know-how provided by third parties to FCE

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except as subject to appropriate confidentiality agreements, related to RC, NRC and Fuel Cell Stack Module of New Application Technology;

(v) the New Technology;

(vi) all technical information, know-how and other technical, engineering and design information and data, as available and/or currently used by FCE, including all information and know-how provided by third parties to FCE except as subject to appropriate confidentiality agreements, related to RC manufacturing facility, including but not limited to design, operation control, management, maintenance, repair, and tooling;

(vii) all technical information, know-how and other technical, engineering and design information and data, as available and/or currently used by FCE, including all information and know-how provided by third parties to FCE except as subject to appropriate confidentiality agreements, related to RC manufacturing production  and work process management, including but not limited to process and quality control, process and production management, scheduling, safety management, problem tracking, root cause analysis, and improvement;

(viii) all technical information, know-how and other technical, engineering and design information and data, as available and/or currently used by FCE, including all information and know-how provided by third parties to FCE except as subject to appropriate confidentiality agreements, related to RC quality management, including but not limited to quality control methodology, quality control chart, quality assurance, supplier quality management, critical to quality, critical to process, critical to factor, and  failure mode and effect analysis;

(ix) all technical information, know-how and other technical, engineering and design information and data, as available and/or currently used by FCE, including all information and know-how provided by third parties to FCE except as subject to appropriate confidentiality agreements, related to the RC materials, parts, and components; the RC design, manufacturing, Assessment, Repairing and Quality Improvement; the Stack and/or Stack Module design, control and assessment. For the avoidance of doubt, the Stack and/or Stack Module design shall include, but not be limited to the design of a new DFC stack module when changes in the power output, the number of cells/stack, the number of stacks/module, and/or layout/configuration of the present stack (module) are required,

(x) all technical information, know-how and other technical, engineering and design information and data, as available and/or currently used by FCE, including all information and know-how provided by third parties to FCE except as subject to appropriate confidentiality agreements, related to the

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Stack and/or Stack Module service including but not limited to the Stack and/or Stack Module control and operation; monitoring, evaluation, diagnosis, post analysis, root cause analysis, improvement, proposing corrective actions; repair, maintenance; tooling, spare part planning, warehousing; repair facility design and operation; disposal, recycling and reclaiming;

(xi) All technical information, know-how and other technical, engineering and design information and data related to the evaluation and assessment including but not limited to the standard procedure, technology, equipment, facilities and methodologies for RC, NRC, single cell, sub-scale Stack, short Stack, full Stack, and Stack Module; and

(xii) All technical information, know-how and other technical, engineering and design information and data, as available and/or when it becomes available, which were not fully transferred under STTP due to the limitation of access to RC related technology or information.

It is further understood and agreed that FCE Know-How shall not include SOFC; or information and data which is subject to restriction on disclosure by a third party as set forth in Schedule D, provided, however, that FCE shall exercise commercially reasonable good faith efforts to obtain the consent needed to make such information available to POSCO Energy. Regardless of the disclosure of the information by a third party as set forth in Schedule D, POSCO Energy shall have a right to contact and purchase necessary goods directly from a third party without prior consent of FCE provided that such contact and purchase is in conformance with the procedures relating to supply chain contained in the CTTP Section C. It is further understood, for purposes of Section 2.1, that FCE Know-How shall not include the New Application Technology except for that which is set forth in subsection (iii) and (iv) of this definition. The detailed contents of FCE Know-How and the specific methods of technology transfer will be reflected in the CTTP.

“FCE Patents” shall mean the letters, patents, and any applications for letters patent which have a “Convention Date” under the International Convention for the Protection of Industrial Property prior to the earlier of the expiration or termination date of this Agreement and which are owned or acquired by FCE or in which FCE has or acquires a licensable interest (including without limitation any U.S. or non-U.S. patents and patent applications that are counterparts thereof, and/or any divisions, continuations, continuations-in-part or reissues, reexaminations, renewals, substitutions, extensions, supplementary protection certificates in respect thereof) and which relate to the technology being licensed hereunder to POSCO Energy as listed in Exhibit C attached hereto.

“FCE Technology” shall mean FCE Patents and FCE Know-How.

“Force Majeure” shall mean unforeseen circumstances beyond the reasonable control and without the fault or negligence of either Party and which such Party is unable to prevent or provide against by the exercise of reasonable diligence including, but not limited to, acts

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of God, any acts or omissions of any civil or military authority, earthquakes, strikes or other labor disturbances, wars (declared or undeclared), terrorist and similar criminal acts, epidemics, civil unrest and riots.

“Governmental Authority” shall mean any supranational, national, federal, state, municipal or local government or quasi-governmental or regulatory authority (including a national securities exchange or other self-regulatory body), agency, court, commission or other similar entity, domestic or foreign.

“Governmental Order” shall mean any order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority.

“Initial Term” shall have the meaning set forth in Section 8.1.

“Joint Diagnosis Committee” shall mean a committee to be formed by the Parties as set forth in Section 2.7 below.

“Korea” shall mean Republic of Korea.

“Korean Company” shall include any corporation, company or entity established under the laws of the Korea, including any Subsidiary thereof, wherever located or established, other than POSCO Energy and POSCO Affiliates.

“MCFC” shall mean molten carbonate fuel cell.

“Module Components” shall mean parts and component of the Fuel Cell Stack Module other than Fuel Cell Stack, necessary to assemble a Fuel Cell Stack Module, including but not limited to the catalytic oxidizer, mixer/eductor, stack enclosure vessel, enclosure insulation, flex hoses and instrumentation tubing.

“New Technology” shall mean innovations made by FCE during the Term using molten carbonates as electrolyte and resulting in increases to the rated power output, efficiency, and/or stack life as set forth in the roadmap attached hereto in Schedule E (hereafter the “Roadmap”), and any other improvements to rated power output, efficiency, and/or stack life which are not presently included on the Roadmap but which are made by FCE during the Term; it being acknowledged and understood by the Parties that the Roadmap represents FCE’s plans as of the Effective Date, the fulfillment of which shall be subject to available funding, facilities, equipment, and personnel, and to technical achievements which may be beyond the reasonable control of FCE and, further, that failure to achieve the results indicated in the Roadmap shall in no way diminish or reduce FCE’s rights to the privileges outlined in this Agreement, including compensation; and any other improvements and innovations which result in cost savings and/or cost reductions in the FCE Product Line.

“New Application Products” shall mean, as currently designated by FCE, the DFC/T®, the DFC/H2®, the DFC-ERG®, products related to the building application (as described in the Joint Development Agreement dated November 23, 2010), the maritime

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shipping application, and any modifications and derivations in whole or in part thereof, regardless of designation and future products developed by FCE without the participation of POSCO Energy.

“New Application Technology” shall mean all technical information, know-how, inventions (whether patented or not) or trade secrets, which relate to the New Application Products.

“Non-Asia Market” shall mean those countries listed on Schedule B(II) hereunder.

“Non-Repeating Components” or “NRC” means parts and components necessary for the assembly of the Fuel Cell Stack other than RC, including but not limited to supporting hardware, manifolds, instrumentation, assembly and compression hardware.

“Party” shall mean FCE or POSCO Energy, or when used in the plural, FCE and POSCO Energy.

“Person” shall mean any natural person, firm, partnership, association, corporation, company, joint venture, trust, business trust, Governmental Authority or other entity.

“POSCO Affiliate” shall mean each of those entities controlled by, or under common control with, POSCO Energy, which may receive all or part of the FCE Technology in connection with this Agreement, and which are listed in Schedule A, it being understood and agreed that additional entities may be added as mutually agreed by the Parties.

“POSCO Cells” shall mean Fuel Cell Component Assemblies manufactured by POSCO under license from FCE.

“POSCO Modules” shall mean Fuel Cell Stack Modules manufactured by POSCO under license from FCE. .

“POSCO Cells Net Sales” shall mean the revenues generated from the sales by POSCO Energy or POSCO Affiliate of the POSCO Modules; less the POSCO Cells Net Sales Adjustments, all determined in accordance with Section 4.1(c) below.

“POSCO Cells Net Sales Adjustments” shall include (a) any Duplicate Royalties amount, and (b) any costs or expenses incurred for DFC Components, DFC Module Kits, or any components or parts for the POSCO Cells, purchased by POSCO Energy and/or any POSCO Affiliate from FCE.

Further, sales and purchases, by and between POSCO Energy and any POSCO Affiliate to effect the sales of POSCO Cells to customers shall be excluded from the revenues to be counted for the purpose of POSCO Cells Net Sales only to the extent such POSCO Cells are not put into use or operation by such POSCO Affiliate. If such POSCO Cells are subsequently resold to third parties, such subsequent sale to the third party shall be included for the revenues to be counted for the purpose of POSCO Cells Net Sales.

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“POSCO Parts” shall mean any parts or components of POSCO Products.

“POSCO Products” shall mean any products that are manufactured by POSCO Energy, regardless of designation, which are the same as, or a modification or derivation in whole or in part of FCE Products.

“POSCO Technology” shall mean all inventions, know-how, trade secrets, data or information arising, during the Term, by POSCO Energy and POSCO Affiliates and (i) by any employee of POSCO Energy or POSCO Affiliate or (ii) by POSCO Energy or POSCO Affiliate vendors, subcontractors, consultants or suppliers (but only to the extent that POSCO Energy or POSCO Affiliate has obtained rights thereto), derived from or based on the FCE Technology, including, without limitation, technical information, know-how, inventions (whether patented or not), trade secrets, and other technical, engineering and design information and data, detailed drawings, bill of material, system analytical models, system operating software, manufacturing plant data, vendor qualification and selection procedures, and quality assurance procedures.

It is further understood and agreed that POSCO Technology shall not include information and data which is subject to restriction on disclosure by a third party, provided, however, that POSCO Energy shall exercise commercially reasonable good faith efforts to obtain the consent needed to make such information available to FCE.

“Repeating Components” or “RC” shall consist of discrete fuel cell packages composed of active fuel cell components, which include but are not limited to anodes, cathodes, current collector plates, and matrices.

“Royalty Determination Firm” shall have the meaning set forth in Section 4.4.

“SOFC” shall mean solid oxide fuel cell.

“Subsidiary” shall mean, with respect to any Person (for the purposes of this definition, the “parent”), any other Person (other than a natural person), whether incorporated or unincorporated, of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned by the parent or by one or more of its respective Subsidiaries or by the parent and any one or more of its respective Subsidiaries.

“Term” shall have the meaning set forth in Section 8.2.

“Transaction Agreements” shall have the meaning set forth in the Recitals.

“Upfront Payment” shall have the meaning set forth in Section 4.1(a).

To the extent such terms are defined by reference to the other Transaction Agreements, for purposes hereof, such terms shall continue to have their original definitions notwithstanding

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any termination, expiration or amendment of such agreements except to the extent the Parties hereto agree to the contrary herein.

II.LICENSE GRANT

2.1FCE Technology License.

(a)During the Term, and subject to the terms of this Agreement, FCE hereby grants to POSCO Energy and POSCO Affiliates, subject to FCE’s prior separate approval for each POSCO Affiliate, an exclusive right and license to make, have made, use and sell the POSCO Parts, POSCO Products, POSCO Modules, POSCO Cells and POSCO Modules (incorporating POSCO Cells) incorporating the FCE Technology, including without limitation, the right to construct, assemble, manufacture, import and export, maintain, service and/or repair POSCO Parts, POSCO Products, POSCO Modules, POSCO Cells, POSCO Modules (incorporating POSCO Cells) and manufacturing facilities thereof in the Asia Market as set forth in Schedule B(I).

(b)The rights and licenses granted to POSCO Affiliates hereby are subject to the execution by POSCO Affiliates of confidentiality agreements substantially similar to the terms and conditions set forth in Article XI of this Agreement.

(c)At the request of POSCO Energy, and upon consent by FCE, FCE may designate any POSCO Affiliate indicated by POSCO Energy as an additional licensee under this Agreement, subject to POSCO Energy providing reasonable business justification and rationale for its request to designate the named POSCO Affiliate and such POSCO Affiliate shall provide its written concurrence that this Agreement shall govern the POSCO Affiliates’ duties, responsibilities and performance as a licensee hereof.

(d)Manufacturing pursuant to the license granted hereunder in the Asia Market outside Korea, shall require the development of business plans, quality procedures and provisions for the protection of intellectual property. The parties shall mutually agree to such plans, procedures and provisions. However, manufacturing of Balance of Plant in the Asian Market outside of Korea shall require FCE’s prior review of plans, procedures and provisions, but not consent.

2.2Grant of Distribution Rights.

(a)During the Term, and subject to the terms of this Agreement and U.S. export law, FCE hereby grants to POSCO Energy and POSCO Affiliate, as applicable, an exclusive right to distribute, sell, import, export, install, commission, service and/or repair POSCO Cells, POSCO Modules (incorporating POSCO Cells), POSCO Modules, POSCO Products, FCE Product Line and/or other products incorporating FCE Technology, in the Asia Market.

(b)During the Term, and subject to the terms of this Agreement and U.S. export law, FCE hereby grants to POSCO Energy and POSCO Affiliate, as applicable, a non-exclusive right to distribute, sell, import, export, install, commission, service and/or repair

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POSCO Cells, POSCO Modules (incorporating POSCO Cells), POSCO Modules, POSCO Products, FCE Product Line and/or other products incorporating FCE Technology in the Non-Asia Market as set forth in Schedule B(II).

(c)During the Term of this Agreement and provided this Agreement remains valid and in good standing, and subject to compliance with U.S. export law, FCE shall not directly or indirectly (i) in any way extend the term of any distribution rights granted to any third parties prior to the date hereof upon expiration or termination thereof; or (ii) distribute, make, sell, maintain, export/import, service and/or repair the FCE Product Line, the New Application Products or any products incorporating the FCE Technology or the New Application Technology to: (x) any Person in the Asia Market, other than POSCO Energy or the POSCO Affiliate, or (y) any Person which, in its reasonable judgment after due inquiry, may have an intention to distribute, make, sell, maintain, export/import, service and/or repair the FCE Product Line, the New Application Products or any products incorporating the FCE Technology or the New Application Technology in the Asia Market.

(d)A list of all distribution rights granted by FCE prior to the date hereof is set forth in Schedule C attached hereto.

(e)For the avoidance of doubt, the rights under this Section 2.2 includes products incorporating the licensed technology under the Transaction Agreements.

2.3POSCO Technology License. During the Term, and subject to the terms of this Agreement, POSCO Energy hereby grants to FCE and FCE Affiliate(s) a non-exclusive, non-assignable, non-sublicensable and paid-up license to use, manufacture, have manufactured and sell FCE Products that incorporate POSCO Technology provided, however, that for application in the Asia Market and the Non-Asia Market, (i) FCE and FCE Affiliate(s) shall agree with POSCO Energy regarding further non-competition agreement following the execution of this Agreement and (ii) POSCO Energy’s prior written consent shall be required before they take any actions allowed hereby. Notwithstanding the foregoing, the Parties agree that FCE may sub-license the POSCO Technology to a third party for the sole purpose of further developing and improving the FCE Technology, with prior written consent of POSCO Energy, provided that any such development or improvement shall be transferred to POSCO Energy and that the third party shall not use or commercialize the POSCO Technology, without the prior written consent of POSCO Energy, which consent shall be given at POSCO Energy’s sole discretion.

The Parties agree that any sub-licensed rights granted by FCE to third parties are subject to the execution by such third parties of confidentiality agreements substantially similar to the terms and conditions set forth in Article XI of this Agreement.

2.4(a) License to POSCO Energy Upon Expiration of the Term. Upon expiration of the Term, FCE hereby agrees to continue and extend the grant and license to POSCO Energy of all rights set forth under Sections 2.1 and 2.2 of this Agreement, subject to the payment by POSCO Energy to FCE of royalties to be mutually determined by the Parties

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upon such expiration through commercially reasonable good faith efforts; provided, that in the absence of an agreed royalty determination within the sixty (60) day period immediately following the initial request by either Party to determine the royalties, the Parties will submit to binding determination in accordance with Section 4.4. Such determination shall take into account any compensation owed by FCE to third parties.

(b)    License to FCE Upon Expiration of the Term. Upon expiration of the Term, POSCO Energy hereby agrees to continue granting to FCE on a non-exclusive basis all rights set forth under Section 2.3 of this Agreement, subject to the payment by FCE to POSCO Energy of royalties to be mutually determined by the Parties upon such expiration through commercially reasonable good faith efforts, taking into consideration the contribution of each Party to the POSCO Technology; provided, that in the absence of an agreed royalty determination within the sixty (60) day period immediately following the initial request by either Party to determine the royalties, the Parties will submit to binding determination in accordance with Section 4.4, provided that any sublicensing or resale to any Korean Company by FCE shall be subject to POSCO Energy’s consent in its sole discretion.

2.5Use of “FCE” Trademarks. During the Term, FCE grants POSCO Energy the right to use “FCE” marks, in connection with the labeling, advertising or sale of POSCO Cells and/or POSCO Modules (incorporating POSCO Cells), that POSCO Cells and/or POSCO Modules (incorporating POSCO Cells) made by POSCO Energy are “manufactured under license of FUELCELL ENERGY, INC., U.S.A.”, or any other similar statement, to the extent that such is, in fact, the case. In addition, FCE hereby grants to POSCO Energy a non-exclusive fully paid-up license and right to use, consistent with the terms of this Agreement, any and all trademarks and trade names owned by FCE and subject to appropriate provisions concerning protection of trademarks and trade names, including quality control.

2.6Transfer of Technical Data. FCE hereby agrees to provide POSCO Energy, upon completion of payment obligations described in Section 4.1(a)(i) hereunder, technical data and other information existing in documented form as of the Effective Date, relating to the FCE Technology in accordance with the terms of the CTTP. FCE hereby agrees that it will supply or cause to be supplied to POSCO Energy and POSCO Affiliates, as applicable, free of any charges, except as indicated in the CTTP, full up-to-date information, to the extent available in documented form of FCE Technology in a form (e.g., drawings, standard operating procedures, blueprints, written memoranda, training of employees or personal consultation, upon FCE’s prior consent, participation of POSCO Energy’s technologist/engineers in the projects currently conducted by FCE, and/or projects jointly conducted by technologists/engineers of both companies) or other visual forms in a commercially reasonable manner and form that will satisfactorily and expeditiously accomplish the transfer of FCE Technology to POSCO Energy. FCE will supply all such information in a reasonably usable and understandable form and in the English language using U.S. Customary Units of Measure. FCE further agrees that POSCO Energy may reasonably request information or explanations from FCE relating

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to the FCE Technology being transferred herein. Upon such reasonable request, FCE will supply or cause to be supplied to POSCO Energy and POSCO Affiliates, as applicable, such information or explanations which will be in a reasonably understandable form and included in the transactions contemplated hereby. POSCO Energy may transfer to POSCO Affiliates the technical data described in this Section, for the purpose, and subject to limitations, set forth in Section 2.1(c).

2.7Joint Committee(s). The Parties shall form one or more joint committee(s)  consisting of at least two members selected from time to time by each of FCE and POSCO Energy, for the purposes of developing, as described in detail in the CTTP (“Joint Committee(s)”): (i) an integrated Global Supply Chain strategy in support of collective business growth and both companies’ DFC Cell Manufacturing Operations, following the framework and procedures contained in the CTTP, as indicated in Section 2.7 (a) below (hereafter the “Integrated Global Supply Chain Plan”), (ii)  a plan for executing the FCE Know-How technology transfer in accordance to the CTTP (hereinafter the “CTTP Transfer Plan”), (iii)  a plan for the construction, equipment procurement, facilitization, troubleshooting, shakedown and initial operation of a facility for the manufacture of DFC Cells in Korea pursuant to the terms of this Agreement (the “Facility Construction Plan”), (iv) a plan for stack monitoring, diagnosis, and repairing for abnormal status and failure, and for organizing Joint Diagnosis Committee for DFC Power Plants.

(a)      The Integrated Global Supply Chain Plan shall include, but not be limited to, a mutually agreed plan to: (i) reduce RC material supply risk; (ii) ensure long term security of supply for both companies; (iii) avoid short term supply disruptions; (iv) lower direct and indirect costs; (v) improve direct material quality; (vi) reduce inventory and lead times; (vii) leverage both companies’ overall strengths to optimize the value chain; and (viii) ensure compliance with third party confidentiality agreements; and (ix) localize NRC components including FCE BUY (category III) based on NRC Localization Joint Plan dated April 24, 2012.

 (b) The CTTP Transfer Plan shall include, but not be limited to the plans to:  (i) draft and finalize the initial CTTP draft to be completed by the Effective Date of this Agreement, (ii) monitor the transfer progress in view of the CTTP as jointly deemed necessary, (iii) modify or update the CTTP, and (iv) assist and function as the communication channel between the Parties.

(c)       The Facility Construction Plan shall include, but not be limited to, the plans to construct, procure equipment for, install equipment into, initially operate, troubleshoot and shakedown the facility for the manufacture of DFC Cells in Korea, including detailed roles and responsibilities for each Party. 

(d)      The Stack Diagnosis Plan shall include, but is not limited to: (i) making the standard diagnosis and repair methodology in the event of DFC stack module failure. Joint Committee shall monitor and diagnose the DFC stack module

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condition, life and failure, execute root cause analysis, and propose corrective actions, (ii) developing product quality improvement program.

(e) The Fuel Cell Stack technology transfer shall include, but is not limited to transfer of FCE Know-How related to: (i) stack design technology, (ii) design of new DFC stack modules, without limitation, when changes in the power output, the number of cells/stack, the number of stacks/module, and/or layout/configuration of the present stack (module) are required.

2.8Regular Exchange of Technical Data. During the Term, the Parties shall exchange on a regular basis certain reasonably available technical data in connection with the performance of this Agreement, in accordance with the terms of the CTTP.

2.9New Product Development and Improvements.FCE acknowledges that POSCO Energy will be making efforts to develop new products and improve the FCE Technology and agrees to provide POSCO Energy with technical and related information reasonably necessary and to the extent reasonably available to FCE for such new product development and improvement efforts in accordance with the requirements of Section 2.6. For the avoidance of doubt, any new products, developments and improvements described in this Section 2.9 shall not be regarded as Jointly Developed Technology and shall be POSCO Technology, if solely developed by POSCO Energy.

2.10Joint Development of New Application Technology and New Application Products. For the development of the New Application Technology or efforts to commercialize any New Application Technology or New Application Products, the Parties recognize the need of a separate joint development agreement. POSCO Energy shall have the right of first offer and to exclusively negotiate with FCE as to any joint development agreement of the New Application Technology or New Application Products for the Asia Market. The Parties shall negotiate in good faith and use their commercially best efforts to enter into joint development agreements with respect to the New Application Products and the New Application Technology as justified by market demands.

III.OWNERSHIP OF INTELLECTUAL PROPERTY

3.1Ownership of FCE Technology. POSCO Energy acknowledges that all FCE Technology in and relating to the FCE Products, whether developed by or for FCE prior to or after the Effective Date of this Agreement, is and shall remain the property of FCE or its third party licensors.

3.2Ownership of POSCO Technology. All inventions, know-how, trade secrets, data or information made, invented, conceived, created or otherwise developed by POSCO Energy and POSCO Affiliates, as applicable, and their employees, derived or resulting from the FCE Technology shall be considered POSCO Technology and shall be the sole property of POSCO Energy or POSCO Affiliates, as applicable. For the avoidance of doubt, it is understood and agreed that nothing contained herein shall convey

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ownership to POSCO of any FCE Technology from which such POSCO Technology is derived.

3.3Jointly Developed Technology.  All inventions, know-how, trade secrets, data or information which result from joint development by the Parties (“Jointly Developed Technology”) shall be jointly owned by the Parties and shall be subject to separate joint development agreements negotiated by the Parties.  The Parties hereby agree to cooperate in good faith in the filing of any and all patent applications in all jurisdictions.

IV.ROYALTIES

4.1Royalty Payments.

In consideration of the license and rights granted herein by FCE to POSCO Energy, POSCO Energy agrees to pay to FCE the following payments upon satisfaction or waiver of the conditions set forth in Section 8.3 and subject to Parties’ fulfillment of their obligations as further set forth in in this Agreement including but not limited to CTTP:

(a)License payments:

i. A payment in the amount of USD $10 million (the “Upfront Payment”) shall be paid by POSCO Energy and received by FCE on or before Effective Date but no later than October 31, 2012.

ii. A payment in the amount of USD $2 million shall be paid by POSCO Energy and received by FCE upon Parties’ completion of CTTP Milestone 1 (as defined in CTTP Appendix A) but no later than December 31, 2013 (“1^st Milestone Payment”).

iii. A payment in the amount of USD $2 million shall be paid by POSCO Energy and received by FCE upon Parties’ completion of CTTP Milestone 2 (as defined in CTTP Appendix A) but no later than June 30, 2014 (“2^nd Milestone Payment”).

iv. A payment in the amount of USD $2 million shall be paid by POSCO Energy and received by FCE upon Parties’ completion of CTTP Milestone 3 (as defined in CTTP) but no later than December 31, 2014 (“3^rd Milestone Payment”).

v. A payment in the amount of USD $2 million shall be paid by POSCO Energy and received by FCE upon Parties’ completion of CTTP Milestone 4 (as defined in CTTP) but no later than June 30, 2015 (“4^th Milestone Payment”).

(b)     Running Royalty. A running royalty in the amount of three percent (3%) of POSCO Cells Net Sales shall be paid by POSCO Energy in U.S. dollars. The royalty payment shall be paid quarterly and within forty-five (45) calendar days of the end of each calendar quarter.

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(c)     Notwithstanding anything to the contrary, the Parties agree that there shall not be any duplicate royalties counting for any single transaction by calculating royalties under the previous TTA, STTA and this Agreement (“Duplicate Royalties”). Any royalty calculation resulting from the POSCO Cells Net Sales under this Agreement shall take into account the calculation of the royalties resulting from the Net Sales of DFC Power Plants, POSCO Modules, POSCO Products and/or POSCO Parts under the TTA and STTA. To the extent there are any Duplicate Royalties, such amount shall count towards the POSCO Cells Net Sales Adjustment.

(d)     The Parties acknowledge that although the royalty set forth above in Section 4.1(b) shall be applicable, it may be difficult to ascertain the royalties in certain transactions. Such transactions may include, but are not limited to, transactions in which the POSCO Cells are leased, loaned, bartered or exchanged for goods or services, transferred to a third party or any entity affiliated or closely associated with POSCO Energy at a price other than market price or on terms other than in an arm’s length, or otherwise put into use by POSCO Energy or POSCO Affiliates. POSCO Energy agrees to notify FCE within fifteen (15) business days after entering into such arrangements, and the Parties shall subsequently use commercially reasonable good faith efforts to establish guidelines for determining the royalties for such transactions within sixty (60) days from the date such notice is received, taking into consideration the principles of the Korean GAAP and U.S. GAAP and incorporating the principles of best accounting practices. If the Parties fail to reach agreement, the Parties agree to abide by the procedures set forth in Section 4.4.

(e)     In case there arises a Dispute as to either Party’s obligations set forth in this Agreement, including but not limited to, CTTP, but only in the case where such disputes arise due to the fault of FCE, POSCO Energy may withhold some portion of any disputed amounts under Section 4.1 (a)(ii),(iii),(iv), and (v) the Parties shall engage in their best efforts to resolve such Dispute in due course as set forth in Section 14.

4.2No Other Royalties, Payments, Etc. The Parties acknowledge and agree that, other than the Upfront Payment, 1^st Milestone Payment, 2^nd Milestone Payment, 3^rd Milestone Payment and 4^th Milestone Payment and the running royalty as set forth in Section 4.1(b), and certain expenses to be reimbursed pursuant to the CTTP, POSCO Energy or any POSCO Affiliates shall not be liable for any fees, royalties, expenses or payments in connection with the license rights granted herein or the use by POSCO Energy or POSCO Affiliates of the FCE Technology under this Agreement.

4.3Royalty Report.

(a)Regular Reports. When rendering payment of the foregoing royalties, POSCO Energy shall provide FCE with a written quarterly report showing the calculation of the royalty, the number of products to which the royalty is applicable. At its expense, FCE may, by its designated independent public accountants, audit the royalty amounts reported by POSCO Energy no more than once a year. To the extent any sales are made by any POSCO Affiliates, POSCO Energy agrees to furnish to FCE copies of relevant books and records of the POSCO Affiliates for the sole purpose of such audit by FCE.

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(b)Final Report. POSCO Energy shall deliver a written report to FCE within sixty (60) days of the termination or expiration of this Agreement, containing information relevant to the calculation of the royalties due under this Agreement; provided that such report shall include the Net Sales of POSCO Cells that are sold and on order by POSCO Energy on or prior to the date of termination or expiration and not previously reported to FCE, and such other information as may be necessary to determine the royalties due hereunder.

4.4Royalty Determination Firm. The Parties agree that in case of any dispute with respect to the determination of royalty pursuant to Sections 2.4, 4.1(d) and 9.2(b), any such determination shall be determined by an internationally recognized independent accounting firm jointly selected and paid for by the Parties (“Royalty Determination Firm”). If the Parties dispute the royalty amount determined by the Royalty Determination Firm, then the disputing Party has the right at its own expense to retain another internationally recognized independent accounting firm; and in such event, the determination of the royalty shall be the average of the two determinations, provided that, the average of the two determinations shall not exceed by more than 10% of the difference between the royalty amount determined by the Royalty Determination Firm and the royalty amount determined by the independent determination firm.

4.5In accordance with the relevant laws, regulations, decrees, guidelines or ordinances of the Korea as may then be in effect, POSCO Energy shall withhold taxes owed to the appropriate tax office of Korea (hereafter “Korea License Compensation Taxes”) from the license compensation owed to FCE hereunder and paid to the appropriate tax office of Korea directly by POSCO Energy. For the avoidance of doubt, the amounts listed in Section 4.1(a) hereunder is net of such taxes (i.e., taxes have already been considered and deducted from the amounts indicated in Section 4.1(a)), while such taxes shall be deducted in the future from the amounts described in Section 4.1(b).

V.CUSTOMER RESPONSIBILITY

5.1End User Warranty. For POSCO Modules (incorporating POSCO Cells) manufactured and assembled by POSCO Energy and/or POSCO Affiliates pursuant to this Agreement, POSCO Energy shall be responsible to the end user for warranty, performance guarantees and service obligations related to the POSCO Cells. FCE shall have no obligations under any agreements which POSCO Energy may execute with end users for POSCO Cells, beyond the performance guarantees and warranties contained in separate agreements to be further entered between the Parties.

VI.COVENANTS

6.1POSCO Energy Obligations. POSCO Energy hereby agrees to comply with the U.S. Department of Commerce Export Administration Regulations concerning exportation and re-exportation of technical data (including computer software), direct products thereof or any components purchased hereunder to any countries or territories. POSCO Energy hereby gives FCE the assurance required by the U.S. Department of

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Commerce Export Administration Regulations with respect to the U.S. origin technical information furnished by FCE hereunder and the direct product of such technical information.

6.2FCE Obligations. FCE hereby agrees to comply with the U.S. Department of Commerce Export Administration Regulations concerning exportation and re-exportation of technical data (including computer software), direct products thereof or any components purchased hereunder to any countries or territories. FCE hereby gives POSCO Energy the assurance required by the U.S. Department of Commerce Export Administration Regulations with respect to the U.S. origin technical information furnished by FCE hereunder and the direct product of such technical information.

6.3DOE Approval. As soon as practicable after the date hereof, FCE shall obtain all necessary consent, approval or waiver from the U.S. Department of Energy (“DOE”), at its expense, in form substantially similar to the form of DOE Approval set forth in Exhibit B attached hereto.

6.4Other Third Party Approvals. In addition to complying with the requirements set forth in Section 6.3, FCE shall complete each of the actions and filings and obtain all necessary approvals, consents or waivers from any third party or Persons as required, as soon as practicable after the date hereof. 

6.5Notification of Certain Matters. During the period from the date hereof to the Effective Date, each of the parties hereto shall promptly give notice to each of the other parties of (i) the occurrence of any event which occurrence has caused or is likely to cause, any representation or warranty of the notifying party contained in this Agreement to be untrue, inaccurate or misleading or which might reasonably be expected to prevent the consummation of the transactions contemplated hereby, (ii) any failure of such party to comply with or satisfy any material covenant, condition or agreement to be complied with or satisfied by it under this Agreement, and (iii) any change, event, condition or development which will, or which could reasonably be expected to, delay the consummation of this Agreement and the license grant contemplated hereby; provided, however, that right to indemnification, payment of damages or other remedy hereunder based on such representations, warranties, covenants, and obligations will not be affected by any such notification.

6.6Obligations Relating to FCE Intellectual Property. FCE shall diligently file, prosecute and maintain the patents, patent applications and trademarks of the FCE Technology to fully protect POSCO Energy’s interest in the license to the FCE Technology as set forth in Article II of this Agreement.  FCE shall, at its own expense, take all action necessary to perfect, maintain, preserve, protect against infringement, defend the validity of and/or renew any applicable title and/or interest in the FCE Technology and/or any intellectual property rights set forth in this Agreement and transactions contemplated hereby.

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6.7Obligations Relating to POSCO Technology. POSCO Energy shall diligently file, prosecute and maintain the patents, patent applications and trademarks of the POSCO Technology to fully protect FCE’s interest in the license to the POSCO Technology as set forth in Section 2.3 of this Agreement.  POSCO Energy shall, at its own expense, take all action necessary to perfect, maintain, preserve, protect against infringement, defend the validity of and/or renew any applicable title and/or interest in the POSCO Technology and/or any intellectual property rights set forth in this Agreement and transactions contemplated hereby.

6.8DFC Technology. During the Term of this Agreement, FCE shall make commercially reasonable efforts to improve and enhance the DFC technology to maintain market competitiveness.

VII.REPRESENTATIONS AND WARRANTIES

7.1Representations and Warranties of FCE. FCE represents and warrants to POSCO Energy that as of the date hereof and as of the Effective Date:

(a) It has all requisite right, power and authority, to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;

(b) The execution, delivery and performance by FCE of this Agreement, and the consummation by FCE of the transactions contemplated hereby, have been duly and validly authorized by all necessary corporate action on the part of FCE and no other corporate actions or proceedings on the part of FCE are necessary to authorize this Agreement and the transactions contemplated hereby. Assuming due authorization, execution and delivery of this Agreement by POSCO Energy hereto, this Agreement constitutes a legal, valid and binding obligation of FCE enforceable against it in accordance with its terms;

(c) The execution, delivery and performance by FCE of this Agreement, and the consummation by FCE of the transactions contemplated hereby do not (i) violate any Applicable Law; (ii) violate or conflict with any contract or agreement to which FCE is a party; (iii) violate any Governmental Order; (iv) require the approval, consent or permission of any Governmental Authority having authority over FCE except for the DOE Approval; or (v) violate FCE’s organizational documents;

(d) Neither FCE or any of its Subsidiaries nor any director, officer, agent, employee or other Person acting on behalf of FCE or its Subsidiaries has, in the course of its actions for, or on behalf of, FCE or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of in any material respect any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made or received any unlawful bribe, rebate, payoff, influence payment,

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kickback or other unlawful payment to or from any foreign or domestic government official or employee;

(e) POSCO Energy’s contemplated use of the FCE Technology under this Agreement does not infringe, constitute an unauthorized use of or otherwise violate any valid rights, including but not limited to patent rights, copyrights, trademarks or other intellectual property rights owned or controlled by third parties or Persons in any country. No other third parties or Persons in any country is infringing, misappropriating or violating any of the FCE Technology.

(f) The FCE Technology furnished to POSCO Energy and POSCO Affiliates pursuant to this Agreement will correspond to the specifications and requirements of FCE Technology used by FCE in the manufacture of FCE Products; provided that to the extent FCE Technology provided hereunder does not meet such specifications or requirements and POSCO Energy notifies FCE, FCE shall promptly correct the discrepancy at its own expense, by furnishing corrected FCE Technology;

(g) FCE Power Plants using FCE Technology are designed with commercially reasonable safety precautions and FCE participates in on-going safety certification programs for its plants, such as the Canadian Standard Association;

(h) FCE has taken, and will continue to take after the Effective Date, commercially reasonable defensive and offensive measures to protect FCE Technology against encroachment by any third parties. FCE recognizes and acknowledges that maintaining the scope of protection on the FCE Technology in Korea is critical to the success of the continued commercialization of POSCO Products in Korea;

(i) FCE Technology transferred to POSCO Energy will be complete and sufficient to construct, assemble, and manufacture of POSCO Cells and POSCO Modules (incorporating POSCO Cells) such that the POSCO Cells and POSCO Modules (incorporating POSCO Cells) (i) meets or exceeds the standard of quality and performance that is commensurate with the quality and performance of similar products constructed, assembled, and manufactured by FCE to sell, maintain, service/repair, and distribute, and (ii) meets or exceeds any specification requirements of similar products constructed, assembled, and manufactured by FCE and that are marketed and advertised to its customers, suppliers, and vendors;

(j) As a part of FCE Technology transfer, Cell Technology transfer will be completed upon achievement of specific goals which will be described in the CTTP;

(k) FCE will apply commercially reasonable efforts to achieve the capacity and/or specification goals contained in the Roadmap attached hereto as Schedule E.

(l) There is no claim, action, suit, proceeding or order pending or threatened against FCE in respect of the FCE Technology. FCE has not received a written notice that (i)

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challenges the rights of FCE in respect of the FCE Technology, or otherwise challenges the registration, validity, enforceability, scope or sole and exclusive ownership of the FCE Technology, or (ii) FCE is in violation of any law, regulation, order or other legal requirement that apply to the FCE Technology.

(m) FCE has obtained and effected any consents, approvals, waivers and notices of or to any other third parties or Persons which are required pursuant to any law or contract, including without limitation, (i) DOE Approval and (ii) consents, approvals, waivers and/or notices for confidentiality agreements and/or non-disclosure agreements relating to FCE Technology as set forth in Schedule D attached hereto. FCE has obtained and effected such consents, approvals, waivers and notices in connection with the right and license to use FCE Technology being granted to POSCO Energy herein, and the execution and delivery of, and performance under, this Agreement. 

7.2Representations and Warranties of POSCO Energy. POSCO Energy represents and warrants to FCE that as of the date hereof and as of the Effective Date:

(a) It has all requisite right, power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby;

(b) The execution, delivery and performance by POSCO Energy of this Agreement, and the consummation by POSCO Energy of the transactions contemplated hereby, have been duly and validly authorized by all necessary corporate action on the part of POSCO Energy and no other corporate actions or proceedings on the part of POSCO Energy are necessary to authorize this Agreement, and the transactions contemplated hereby. Assuming due authorization, execution and delivery of this Agreement by FCE hereto and thereto, this Agreement constitutes a legal, valid and binding obligation of POSCO Energy enforceable against it in accordance with its terms;

(c) The execution, delivery and performance by POSCO Energy of this Agreement, and the consummation by POSCO Energy of the transactions contemplated hereby, do not: (i) violate any Applicable Law; (ii) violate or conflict with any Contract to which POSCO Energy is a party; (iii) violate any Governmental Order; (iv) require the approval, consent or permission of any Governmental Authority having authority over POSCO Energy except for the DOE Approval; or (v) violate POSCO Energy’s organizational documents; and

(d) Neither POSCO Energy or any of its Subsidiaries nor any director, officer, agent, employee or other Person acting on behalf of POSCO Energy or its Subsidiaries has, in the course of its actions for, or on behalf of, POSCO Energy or any of its Subsidiaries (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expenses relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of in any material respect any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended; or (iv) made or received any unlawful bribe, rebate, payoff,

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influence payment, kickback or other unlawful payment to or from any foreign or domestic government official or employee; and

(e) All work to be performed by POSCO Energy in its manufacture, assembly and test activities hereunder shall be performed in accordance with drawings, manufacturing practices, instructions and quality plans as furnished by FCE or as mutually agreed upon by the parties.

VIII.TERM

8.1Term. The initial term of this Agreement (the “Initial Term”) shall commence on the Effective Date and shall continue, unless earlier terminated in accordance with the provisions set forth herein or in any Transaction Agreement, for a period of fifteen (15) years from the Effective Date.

8.2Extension. The Initial Term may be extended for additional terms (each, “Additional Term”, and, together with the Initial Term, the “Term”), each for a period of five (5) years, by mutual agreement by the Parties on terms and conditions comparable to this Agreement, but for avoidance of doubt, the payment due to FCE shall be limited to the running royalty, which will be no higher than what is set forth in this Agreement, and exclude other payments, i.e. upfront payment and milestone payments.

8.3Effectiveness of this Agreement; Effective Date. This Agreement shall not be effective until the satisfaction or, to the extent permitted by applicable law, waiver in writing by POSCO Energy of each of the following conditions:

(a)All governmental approvals necessary for the transactions contemplated under this Agreement, including, without limitation, DOE Approval as set forth in Section 6.3, shall have been obtained and be in full force and effect;

(b)The representations and warranties with respect to FCE set forth in Section 7.1 shall be true and correct in all material respects (except those representations and warranties qualified by “materiality” or words of similar meaning, which must be true and correct in all respects) on and as of the Effective Date with the same effect as though such representations and warranties had been made on and as of such date (or, with respect to representations and warranties that are given as of a specific date, as of such date).

(c)POSCO Energy shall have obtained final internal approval of the transactions contemplated hereby, including without limitation, resolution of its board of directors.

IX.TERMINATION

9.1Termination by Mutual Agreement. This Agreement may be terminated, without any further obligation or liability by mutual written agreement of the Parties.

9.2FCE Termination by Material Breach of POSCO Energy.

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(a)Notwithstanding anything to the contrary contained herein or in any other Transaction Agreements, in the event POSCO Energy materially breaches any representation or warranty or materially fails to perform any obligation or undertaking to be performed by it under this Agreement and such material breach or failure is not cured within sixty (60) days after notice from FCE specifying the nature of the breach, then, FCE shall have the right to terminate this Agreement after complying with the procedures set forth in Section 14.2 below.

(b)FCE Remedy. In the event that FCE terminates this Agreement pursuant to Section 9.2(a):

(i) FCE may elect to retain all POSCO Technology, including all copies and summaries thereof, furnished by POSCO Energy prior to such termination;

(ii) Other than the Asia Market, FCE shall have a non-exclusive perpetual license and right to use the POSCO Technology to manufacture and sell the FCE Products, only to the extent that FCE Products incorporate POSCO Technology at the time of such termination, under all patents of all countries under which POSCO Energy or POSCO Affiliates, as applicable, during the Term, has or may acquire the right to grant such licenses, provided that any sublicensing or resale to any Korean Company by FCE shall be subject to POSCO Energy’s consent in its sole discretion, and provided, further, that the foregoing license shall be subject to the payment by FCE to POSCO Energy of royalties to be mutually determined by the Parties in a commercially reasonable good faith manner, it being understood and agreed that if the Parties are unable to reach agreement within sixty (60) days following the initial request of FCE, the royalties determined pursuant to Section 4.4 above shall be final and binding upon the Parties;

(iii) POSCO Energy further agrees that POSCO Energy shall, at the request of FCE, continue to supply POSCO Modules to FCE, if such are in production, on terms and conditions to be mutually agreed upon by the Parties in good faith; and

(iv) POSCO Energy, on its own behalf and on behalf of POSCO Affiliates, shall pay Actual Losses; provided, however, that such Actual Losses shall not include any consequential, special, incidental, or indirect losses or damages.

The foregoing provisions of this Section 9.2 represent, the sole and exclusive remedy of FCE in the event of termination by material breach of POSCO Energy.

9.3POSCO Energy Termination by Material Breach of FCE.

(a)In the event FCE materially breaches any representation or warranty or materially fails to perform any obligation or undertaking to be performed by it under this Agreement and such material breach or failure is not cured within sixty (60) days after notice from POSCO Energy specifying the nature of the breach, then, POSCO Energy shall have the right to terminate this Agreement after complying with the procedures set forth in Section 14.2 below (except as noted below in Section 9.3(b)(i)).

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(b)POSCO Energy Remedy. Notwithstanding anything to the contrary contained herein or in any other Transaction Agreements, in the event that POSCO Energy terminates this Agreement pursuant to Section 9.3(a) above:

(i) FCE shall pay to POSCO Energy for Actual Losses and a reduction on the remaining royalties by 1%, and in addition, if the FCE Technology has not been fully transferred to POSCO Energy as scheduled in the CTTP, FCE shall promptly and in a commercially reasonable manner transfer to POSCO Energy all of the remaining FCE Technology. FCE further acknowledges and shall agree that POSCO Energy shall be entitled to seek and obtain from FCE specific performance of FCE’s obligations under this section in the U.S. District Court for the Southern District of New York or in any competent court in the State of New York or Connecticut, if FCE fails to transfer the FCE Technology to POSCO Energy, as set forth in the CTTP. For the avoidance of doubt, in the event FCE dissolves, (i) FCE shall pay all outstanding debts and obligations, including without limitation the payment of Actual Losses pursuant to this Section 9.3(b)(i) to POSCO Energy before making any distributions to shareholders in accordance with Applicable Laws and (ii) POSCO Energy shall not be obligated to pay any remaining royalties to FCE;

(ii) POSCO Energy may elect to retain all FCE Technology, including all copies and summaries thereof, furnished by FCE prior to such termination;

(iii) POSCO Energy shall have a perpetual non-exclusive license and right in and of the FCE Technology as set forth in Section 2.1 of this Agreement and a non-exclusive perpetual distribution right as set forth in Section 2.2 of this Agreement; and

(iv) FCE further agrees that FCE shall, at the request of POSCO Energy, continue to supply DFC Components on terms and conditions to be mutually agreed upon by the Parties in good faith.

The foregoing provisions of this Section 9.3 represent the sole and exclusive remedy of POSCO Energy in the event of termination by material breach of FCE. For the purpose of Section 9.3(b)(i) above, the Parties hereto consent to the jurisdiction of such court in respect of any action or proceeding thereunder.

9.4Return of FCE Technology. In the event this Agreement is terminated pursuant to Section 9.1 or Section 9.2 above, POSCO Energy shall return to FCE all FCE Know-How, including all copies and summaries thereof, furnished by FCE prior to such termination and shall not be permitted to make any further use of such FCE Technology.

9.5Return of POSCO Technology. In the event this Agreement is terminated pursuant to Section 9.1 or Section 9.3 above, FCE shall return to POSCO Energy all POSCO Technology including all copies and summaries thereof, furnished by FCE prior to such termination and shall not be permitted to make any further use of such POSCO Technology.

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9.6Survival. Upon expiration or termination of this Agreement as provided herein, or by operation of law or otherwise, all rights granted and all obligations undertaken hereunder shall terminate forthwith except the following provisions:

(a) Upon expiration of the Term, Sections 2.4(a) (‘License to POSCO Energy Upon Expiration of the Term’) and 4.4 (‘Royalty Determination Firm’) and Articles III (‘Ownership of Intellectual Property’), IX (‘Termination’), X (‘Indemnification’), XI (‘Confidential Information’), XII (‘Notices’), XIII (‘Entire Agreement’), XIV (‘Applicable Law and Arbitration’) and XV (‘Miscellaneous’); and

(b) Upon termination of this Agreement, Sections 4.4 (‘Royalty Determination Firm’), Articles III (‘Ownership of Intellectual Property’), IX (‘Termination’), X (‘Indemnification’), XI (‘Confidential Information’), XII (‘Notices’) and XIII (‘Entire Agreement’), XIV (‘Applicable Law and Arbitration’), XV (‘Miscellaneous’) and the CTTP.

X.INDEMNIFICATION

10.1POSCO Energy Obligations. POSCO Energy shall indemnify and hold harmless FCE and its affiliates, officers, directors, members, employees and agents, against any and all judgments, damages, liabilities, costs and losses of any kind (including reasonable attorneys’ and experts’ fees) (collectively, “Losses”) that arise out of or relate to (i) any breach by POSCO Energy of its representations or warranties or covenants under this Agreement, (ii) any claim, action or proceeding that arises from defects caused by the manufacture by POSCO Energy or POSCO Affiliates of POSCO Modules, or (iii) any claim, action or proceeding that arises from defects caused by the servicing by POSCO Energy or POSCO Affiliates of the FCE Products; provided, however, that FCE must promptly notify POSCO Energy in writing of any such claim, action or proceeding (but the failure to do so shall not relieve POSCO Energy of any liability hereunder except to the extent that POSCO Energy has been materially prejudiced therefrom). POSCO Energy may elect, by written notice to FCE within ten (10) days after receiving notice of such claim, action or proceeding to assume the defense thereof with counsel acceptable to FCE. If POSCO Energy does not so elect to assume such defense or disputes its indemnity obligation with respect to such claim, action or proceeding, or if FCE reasonably believes that there are conflicts of interest between FCE and POSCO Energy or that additional defenses are available to FCE with respect to such defense, then FCE shall retain its own counsel to defend such claim, action or proceeding, at POSCO Energy’s defense. POSCO Energy shall reimburse FCE for expenses as these are incurred under this Section. FCE shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder; provided, however, that FCE shall have no right to control the defense, consent to judgment or agree to settle any such claim, action or proceeding without the written consent of POSCO Energy unless FCE waives its right to indemnity hereunder. POSCO Energy, in the defense of any such claim, action or proceeding, except with the written consent of FCE, shall not consent to entry of any judgment or enter into any settlement which (i) does not include, as an unconditional term, the grant by the claimant to FCE

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of a release of all liabilities in respect of such claims or (ii) otherwise adversely affects the rights of FCE.

10.2FCE Obligations. FCE shall indemnify and hold harmless POSCO Energy and its affiliates, officers, directors, members, employees and agents, against any and all Losses that arise out of or relate to (i) any breach by FCE of its representations, warranties, covenants or agreements under this Agreement (it being understood and agreed that any indemnity with respect to the FCE Products shall be governed by a separate purchase order contract), (ii) any claim, action or proceeding that arises from or relates to the servicing by FCE of POSCO Cells, POSCO Modules (incorporating POSCO Cells), POSCO Modules or FCE Products, (iii) any claim, action or proceeding that arises from any licensor of FCE or any third party, in or relating to the FCE Technology (it being understood and agreed that this obligation includes an obligation to take all necessary steps to ensure the continued use by POSCO Energy of the FCE Technology, without interruption), provided, however, that POSCO Energy must promptly notify FCE in writing of any such claim, action or proceeding (but the failure to do so shall not relieve FCE of any liability hereunder except to the extent that FCE has been materially prejudiced therefrom). FCE may elect, by written notice to POSCO Energy within ten (10) days after receiving notice of such claim, action or proceeding to assume the defense thereof with counsel acceptable to POSCO Energy. If FCE does not so elect to assume such defense or disputes is indemnity obligation with respect to such claim, action or proceeding, or if POSCO Energy reasonably believes that there are conflicts of interest between FCE and POSCO Energy or that additional defenses are available to POSCO Energy with respect to such defense, then POSCO Energy shall retain its own counsel to defend such claim, action or proceeding, at FCE’s defense. FCE shall reimburse POSCO Energy for expenses as these are incurred under this Section. POSCO Energy shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder; provided, however, that POSCO Energy shall have no right to control the defense, consent to judgment or agree to settle any such claim, action or proceeding without the written consent of FCE unless POSCO Energy waives its right to indemnity hereunder. FCE, in the defense of any such claim, action or proceeding, except with the written consent of POSCO Energy, shall not consent to entry of any judgment or enter into any settlement which (i) does not include, as an unconditional term, the grant by the claimant to POSCO Energy of a release of all liabilities in respect of such claims or (ii) otherwise adversely affects the rights of POSCO Energy.

10.3Limitation of Damage. In no event, whether as a result of breach of contract, warranty, tort (including negligence), strict liability, indemnity, or otherwise, shall either Party or its subcontractors or suppliers be liable to the other Party for loss of profit or revenues, or for any special, consequential, incidental, indirect or exemplary damages.

XI.CONFIDENTIAL INFORMATION

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11.1Obligations of the Parties. All written information marked “proprietary” or “confidential” (or if oral, subsequently reduced to a writing so marked and delivered to the receiving Party within thirty (30) days of its oral disclosure) which the disclosing Party discloses to the receiving Party as a result of the provisions of this Agreement, whether contained in blueprints, drawings, written reports, letters or memoranda, process descriptions, operating procedures, supplier lists and/or other written data, shall be treated as confidential unless (a) such information shall have been in the possession of the receiving Party prior to its receipt from the disclosing Party, (b) such information is or becomes part of the public knowledge or literature through no fault of the receiving Party, vendors or suppliers, (c) such information shall otherwise become available to receiving Party from a source other than the disclosing Party, said source not being violative of any obligation of secrecy with respect to such information, or (d) the furnishing or use of such information is required by any legal requirement or any Governmental Authority. Information which is so considered to be confidential shall be held by the receiving Party for its sole benefit and used only in accordance with this Agreement; provided that the receiving Party may share proprietary or confidential information with its affiliates; and, further provided, that the receiving Party shall cause its Affiliates to restrict the use so as to be consistent with the terms of this Agreement and to restrict disclosure to its employees, on a need-to-know basis, of any confidential or proprietary information shared with such affiliates. The receiving Party shall use all reasonable efforts to prevent the use of all or any part of such confidential information belonging to the disclosing Party in any other connection or the transmission thereof to third parties unless and until it has first obtained the written consent of the disclosing Party specifically authorizing such use or transmission. The Parties understand that information may be provided which is subject to a confidentiality agreement with a third party. The Parties agree that such information shall be held in confidence in accordance with the terms of the third party confidentiality agreement. No Party shall be obligated to divulge third party confidential information to the other Party. Each Party shall require, as a condition precedent to any agreement for any FCE Product or POSCO Product sales, as the case may be (incorporating respective FCE Technology or POSCO Technology, as the case may be), lease, or other similar transaction, that the purchaser, lessor, or customer for such transaction must agree to accept the terms of this paragraph, including the requirement for any subsequent purchaser to accept the terms of this paragraph. Any breach of the confidentiality provisions of this paragraph may be considered material breach of this agreement by the non-breaching Party.

11.2POSCO Affiliate. The Parties agree that each POSCO Affiliate for which an additional license is granted by FCE pursuant to Section 2.1(c) hereunder, shall enter into a confidentiality agreement with POSCO Energy containing the terms that are substantially similar to the confidentiality provision set forth above.

11.3FCE and POSCO Energy Obligations. All obligations under this article shall apply mutatis mutandis to the Parties.

11.4Non-Competition.

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(a)For the Term of this Agreement, and provided that this Agreement remains valid and in good standing, POSCO Energy, for itself and on behalf of POSCO Affiliates, agrees that (i) POSCO Energy and/or POSCO Affiliates will not engage any third party to develop DFC-based MCFC RC technology without the prior consent of FCE; (ii) POSCO Energy and/or POSCO Affiliates will not share FCE technology with any unauthorized third party without the written consent of FCE; and (iii) that POSCO Energy and/or its Affiliates will not introduce DFC-based MCFC RC technology to the market which is not royalty bearing pursuant to this Agreement, and FCE agrees not to unreasonably withhold its approval and will notify POSCO Energy of the review result within twenty (20) business days after POSCO Energy provides a description/explanation of the program as to engagement of and/or sharing information with third party; and

(b)For the Term of this Agreement, and provided that this Agreement remains valid and in good standing, FCE, for itself and on behalf of FCE Affiliates, agrees that (i) FCE and/or FCE Affiliates will not engage any third party to develop POSCO Technology without the prior consent of POSCO Energy; (ii) FCE and/or FCE Affiliates will not share POSCO Technology with any unauthorized third party without the written consent of POSCO Energy; and (iii) FCE and/or FCE Affiliates will not introduce any DFC-based MCFC RC technology to the Asia Market except pursuant to this Agreement.

XII.NOTICES

All notices pursuant to this Agreement shall be in writing and will be deemed to have been duly given if delivered personally or by internationally recognized courier service, or by facsimile to the parties at the addresses set forth below.

if to FCE, to:

FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, CT 06813
Facsimile: (203) 825-6079
Attention: Ben Toby

with copy to:

FuelCell Energy, Inc.
3 Great Pasture Road
Danbury, CT 06813
Facsimile: (203) 825-6069
Attention: Ross Levine

if to POSCO Energy, to:

POSCO Energy
POSCO Center, 440 Teheran-ro

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440 Teheran-ro, Gangnam-gu
Seoul, 135-777, Korea
Attention: JiHyung Kim, Esq.

All notices under this Agreement that are addressed as provided in this Section (i) if delivered personally or by internationally recognized courier service, will be deemed given upon delivery or (ii) if delivered by facsimile, will be deemed given when confirmed. Either Party from time to time may change its address or designee for notification purposes by giving the other Party notice of the new address or designee and the date upon which such change will become effective.

XIII.ENTIRE AGREEMENT

This Agreement, including any Exhibits and Schedules attached hereto, and any other Transaction Agreements, constitutes the full and complete statement of the agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, whether written or oral, between the Parties with respect to the subject matter hereof, including, for the avoidance of doubt, the Memorandum of Understanding dated as of March 7, 2012 and Memorandum of Agreement dated April 30, 2012. There are no representations, understandings or agreements relating to this Agreement that are not fully expressed in this Agreement other than those representations, understandings or agreements contained in the other Transaction Agreements. To the extent there is any inconsistency between this Agreement and any other Transaction Agreements, the provisions of this Agreement shall prevail.

XIV.APPLICABLE LAW AND ARBITRATION

14.1Governing Law. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York, U.S.A., without giving effect to any choice of law rules that may require the application of the laws of another jurisdiction.

14.2Efforts to Resolve by Mutual Agreement. Other than a dispute with respect to the determination of royalty which shall be resolved pursuant to Section 4.4, any dispute, action, claim or controversy of any kind arising from or in connection with this Agreement or the relationship of the Parties under this Agreement (the “Dispute”) whether based on contract, tort, common law, equity, statute, regulation, order or otherwise, shall be resolved as follows:

(i) Upon written request of either FCE or POSCO Energy, the Parties shall meet and attempt to resolve any such Dispute. Such meetings may take place via teleconference or videoconference. The Parties shall meet as often as the Parties reasonably deem necessary to discuss the problem in an effort to resolve the Dispute without the necessity of any formal proceeding.

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(ii) Formal proceedings for the resolution of a Dispute may not be commenced until the later of (i) the Parties concluding in good faith that amicable resolution through continued negotiation of the matter does not appear likely; or (ii) the expiration of a sixty (60) day period immediately following the initial request by either Party to resolve the Dispute; provided, however, that this Section 14.2 will not be construed to prevent a Party from instituting formal proceedings earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors or to seek temporary or preliminary injunctive relief.

14.3ICC Arbitration. If the Parties are unable to resolve any Dispute pursuant Section 14.2 above and except as otherwise specified in Section 9.3(b)(i), the Dispute shall be finally settled under the Rules of Arbitration (the “Rules”) of the International Chamber of Commerce (“ICC”) by three (3) arbitrators designated by the Parties. Each Party shall designate one arbitrator. The third arbitrator shall be designated by the two arbitrators designated by the Parties. If either Party fails to designate an arbitrator within thirty (30) days after the filing of the Dispute with the ICC, such arbitrator shall be appointed in the manner prescribed by the Rules. An arbitration proceeding hereunder shall be conducted in Singapore, and shall be conducted in the English language. The arbitration shall be the sole and exclusive forum for resolution of any such Dispute, and the decision or award of the arbitrators is final and binding on both Parties. Any award of the arbitrators shall be in writing and shall state the reasons upon which such decision or award is based. The arbitration panel shall award the prevailing Party its attorneys’ fees and costs, arbitration administrative fees, panel member fees and costs, and any other costs associated with the arbitration, the enforcement of any arbitration award and the costs and attorney’s fees involved in obtaining specific performance of an award; provided, however, that if the claims or defenses are granted in part and rejected in part, the arbitration panel shall proportionately allocate between the Parties those arbitration expenses in accordance with the outcomes; provided, further, that the attorney’s fees and costs of enforcing a specific performance arbitral award shall always be paid by the non-enforcing Party, unless the applicable action was determined to be without merit by final, non-appealable decision. The arbitration panel may only award damages as provided for under the terms of this Agreement and in no event may punitive, consequential and special damages (or as otherwise specified in this Agreement, including, without limitation, Section 10.3) be awarded. In the event of any conflict between the Rules and any provision of this Agreement, this Agreement shall govern.

14.4Waiver of Jury Trial. The Parties hereto hereby irrevocably waive, to the fullest extent permitted by Applicable Law, any and all right to trial by jury in any legal proceeding arising out of or relating to Section 9.3(b)(i).

XV.MISCELLANEOUS

15.1Amendment; Waiver. This Agreement may not be modified or amended except by a writing duly signed by the authorized representatives of both Parties. Any waiver by any Party of any condition, or of the breach of any provision, term, covenant,

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representation or warranty contained in this Agreement, in any one or more instances, shall not be deemed to be or construed as a furthering or continuing waiver of any such condition, or of the breach of any provision, term covenant, representation or warranty contained in this Agreement.

15.2Severability. If any provision of this Agreement is invalid or unenforceable under any applicable statute or rule of law, then the remainder of this Agreement shall remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner adverse to any party hereto. Upon determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15.3Government Information. Nothing in this Agreement shall authorize the disclosure of, or access to, classified or restricted information, material or know-how of the Government of the United States of America to persons not authorized or licensed to disclose or receive such classified or restricted information.

15.4Independent Contractors. The Parties are independent contractors, and nothing contained in this Agreement shall be construed as (a) giving either Party the power to direct and control the day-to-day activities of the other, (b) constituting either Party as a partner, a joint venture, a co-owner or a fiduciary of the other or (c) creating any other form of legal association that would impose liability on one Party for the act or failure to act of the other or as providing either Party with the right, power or authority (express or implied) to create any duty or obligation of the other.

15.5Assignment. This Agreement will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. Neither Party may, nor will it have the power to, assign this Agreement, or any part hereof, without the prior written consent of the other Party, and any such unauthorized assignment shall be null and void, except that the Parties acknowledge and agree that POSCO Energy may, without the consent of FCE assign its rights and obligations to any entity controlled by POSCO Energy or a POSCO Affiliate, provided that POSCO Energy remains liable for the obligations set forth in this Agreement and in other Transaction Documents to which it is a Party. In the event of any other assignment of this Agreement by either Party, the assignee shall assume, in writing (in form and substance reasonably satisfactory to the other Party), the rights and obligations of the assigning Party under this Agreement.

15.6No Third Party Beneficiary. Except as expressly contemplated herein, this Agreement shall be binding upon and inure solely to the benefit of each Party hereto and nothing in this Agreement is intended to confer upon any other person or entity any rights or remedies of any nature whatsoever under or by reason of this Agreement.

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15.7Headings. The headings preceding the text of Articles and Sections included in this Agreement and the headings to Exhibits and Schedules attached to this Agreement are for convenience only and shall not be deemed part of this Agreement or be given any effect in interpreting this Agreement.

15.8Right to Injunction; Specific Performance. The Parties acknowledge and agree that each Party will suffer irreparable harm, which is not compensable by monetary damage, in the event the other breaches its obligations under Article IX or XI. Accordingly, in the event of a breach by one Party of such obligations, the other shall be entitled to injunction or injunctions to enforce and remedy such breach in addition to all other remedies available at law or in equity.

15.9Force Majeure. Neither Party shall be liable to the other for a failure to perform any of its obligations under this Agreement, except for payment obligations under this Agreement, during any period in which such performance is delayed due to a Force Majeure, and if such Party notifies the other of the delay; provided, however, that in the event a period of Force Majeure restricts a Party's performance for greater than 120 days, the non-restricted Party may terminate this Agreement without further cause and without liability for such termination. The date of delivery shall be extended for a period equal to the period of a delay due to Force Majeure, in addition to any additional time as may be reasonably necessary to overcome the effect of such excusable delay; provided, further, that the Party seeking relief under this Section 15.9 shall promptly notify the other of the Force Majeure event, the anticipated resolution of such event, the actual resolution of such event and the actual impact on its obligations hereunder.

15.10Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute the same agreement.

15.11Bankruptcy Rights.  

(i) All rights and licenses granted under or pursuant to this Agreement are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced or renumbered from time to time), licenses of rights to “intellectual property” as defined under Section 101(35A) of the U.S. Bankruptcy Code and/or any similar or comparable section of the U.S. Bankruptcy Code (as such sections may be modified, amended, replaced or renumbered from time to time). The Parties shall retain and may fully exercise all of their respective rights and elections under the U.S. Bankruptcy Code.  Upon the commencement of bankruptcy proceedings by or against either Party under the U.S. Bankruptcy Code, the other Party shall be entitled to retain all of its license rights and use rights granted under this Agreement.  

(ii) The Parties further agree that, in the event of any default of this Agreement by the licensor or any time the licensee reasonably needs access for purposes of the rights and licenses hereunder, the licensor shall not interfere with the licensee’s rights to intellectual property and all embodiments of intellectual property, and shall assist and not interfere with

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the licensee in obtaining intellectual property and all embodiments of intellectual property from another entity, all subject to the terms of this Agreement and limitations hereunder. The term “embodiments” of intellectual property includes all tangible, intangible, electronic or other embodiments of rights and licenses hereunder, including all compounds and products embodying intellectual property, regulatory filings and related rights. 

(iii) If any Party should be dissolved, file a voluntary petition in bankruptcy, have a reorganization proceeding commenced against it, or should an order be entered pursuant to any law relating to bankruptcy or insolvency appointing a receiver or trustee of any Party, then such event shall be deemed a material breach and the other non-breaching Party shall have the right to terminate this Agreement, upon written notice, in accordance with Sections 9.2 or 9.3 (as applicable).

(iv) The Parties agree that the TTA and STTA are hereby amended to add the provisions contained in this Section 15.11.

XVI.SALES TARGETS

Sales Targets. In the event that the sales targets in Exhibit D hereunder are not reached, the Parties shall undertake a performance review in good faith and in a commercially reasonable manner to decide on the feasibility and desirability of the continuation of the exclusivity provisions set forth in Section 2 hereunder. The performance review shall take into consideration, among other things, past performance, market conditions, business prospects, profitability, bona fide efforts by the Parties, quality issues affecting marketability and future plans.

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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in a manner binding upon them by their duly authorized officers as of the date first above written.

FUELCELL ENERGY, INC.

By: /s/ Arthur A. Bottone

Name: Arthur A. Bottone

Title: President & CEO

Company: FuelCell Energy, Inc.

Date: October 31, 2012

POSCO ENERGY CO., LTD.

By: /s/ ChangKwan Oh

Name: ChangKwan Oh

Title: President & CEO

Company: POSCO ENERGY, CO., LTD

Date: October 31, 2012

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EXHIBIT A

CELL TECHNOLOGY TRANSFER PROGRAM

The purpose of this Cell Technology Transfer Program (“CTTP”) is to describe the transfer by FCE to POSCO Energy of the FCE Technology which shall have the meaning set forth in the Cell Technology Transfer License Agreement (“CTTA”). The CTTP contains the detailed terms and schedules relating to the transfer by FCE of FCE Technology, including the scope of assistance and support provided, to POSCO Energy/POSCO Affiliates, it being understood and agreed that, the CTTP shall be a part of the CTTA. It being further understood that FCE shall provide all related materials and information to POSCO Energy upon execution of the CTTA. Capitalized terms used herein, but not defined herein, shall have the meanings given to them in the CTTA.

OVERVIEW

1. Types of Information to be Transferred

The CTTP shall cover the following aspects of the technology transfer:

1.1 Cell Technology Information

Cell technology information to be transferred and the process for the transfer are outlined in Section A.

1.2 Manufacturing Realization Support

Manufacturing information to be transferred and support for the development of a repeating component factory are described in Section B.

1.3 Integrated Global Supply Plan

Description of a program for developing an integrated global supply chain is described in Section C.

1.4 Service Technology Transfer

Description of a program for transferring technology with respect to operation, maintenance and diagnosis of fuel-cell cells, stacks, modules and power plants is described in Section D.

2. Method of Transfer

For each of the above types of information, both companies will appoint a joint team to develop a plan to complete the transfer of information and provide other necessary support. Approval of these plans must be completed by Senior Vice President or higher level of management from each company within 60 days of the Effective Date of this CTTP, with the exception of the Integrated Global Supply Plan, which shall be 90 days.

3. Obligation to Exercise Good Faith Efforts

Consistent with the objectives of the Alliance Agreement, the Parties shall use good faith efforts to cooperate with each other to effectuate the transactions contemplated by the CTTA, including

this CTTP.

4. Costs

FCE shall use commercially reasonable efforts to provide technical consultation and assistance in connection with POSCO Energy/POSCO Affiliate’s activities under this CTTP without additional charge up to 500 man-days for the duration of the CTTA. 500 Additional man-days beyond the 500 man-days shall be provided by FCE subject to payments from POSCO Energy to FCE. Payments shall be based upon mutually agreeable terms and conditions. For the purposes of this section, a “man-day” shall be defined as eight (8) working hours, and a “man-year” shall be defined as 1,920 working hours. The specific category of activities that qualify as counting towards the 500 man-days shall be mutually agreed upon within 60 days of the Effective Date of this CTTP, it being understood that preparation time of documents or data for the purpose of (i) transferring technology to POSCO, and (ii) reorganizing available technology data do not qualify as “man-day” activities and shall not count towards consuming man-day time. These 500 man-days apply only to efforts associated with sections A, C, and D, below.

4.1 Tracking.

FCE shall continually track the number of man-days consumed, and the number of man-days remaining. FCE shall provide on a quarterly basis a Work Progress Summary outlining activities and deliverables completed or ongoing from the prior reporting period, as well as a summary of the number of man-hours remaining. POSCO Energy/POSCO Affiliates shall make payments on the additional man-days beyond 500 man-days on a quarterly basis upon receiving the Work Progress Summary.

4.2 Payment Default Rate

In the event that any payment due from POSCO Energy under this CTTP is not paid when due, POSCO Energy shall pay FCE interest (“Overdue Payment Interest”) on such overdue payment during a period commencing on such due date until the date that such overdue payment is actually made to Seller, the annual rate of interest being equal to two percent (2%) above the highest commercial prime rate as published in the Wall Street Journal on the day the payment first became due. Nothing in this paragraph shall prevent the FCE from exercising other remedies available under this CTTP. The above Overdue Payment Interest applies on condition that any invoice provided by FCE is clear, sufficiently-detailed and understandable. In the event that an invoice provided by FCE is ambiguous as to its details, inadequately describes the work and materials performed contains errors material to the work performed, was not timely sent or causes any other delay at no fault to POSCO Energy/POSCO Affiliates, POSCO Energy shall not be obligated to pay any Overdue Payment Interest on payment of such invoices.

5. New Product Development and Improvement

5.1 Process

5.1.1 Independent Development

FCE and POSCO Energy shall agree to adopt the established approval process known as “4-Step Process” as described below and in Attachment 2 for the formal approval communication process of technology changes initiated by POSCO Energy.

Step 1.    POSCO Energy requests and describes requirement for new or localized part, material or process.

Step 2.    FCE respondsse defining information needed to implement the POSCO Energy’s request.

Step 3.    POSCO Energy responds with requested information.

Step 4.    FCE approval.

5.1.2Joint Development

The Parties agree to undertake the Joint Development Program activities in a spirit of partnership, and shall strive to foster dialog and mutual cooperation to achieve efficient and expeditious outcomes, and maximize the chances of success. In addition, each Party agrees to provide the other Party with technical and related information reasonably necessary and to the extent reasonably available to carry out their respective responsibilities under the Joint Development Program.

5.1.2.1 Resource Allocation and Development Costs

Each party agrees to bear its own costs incurred in the Joint Development Program, except as specifically provided for in a separate instrument. The Parties acknowledge and agree that each Party’s participation in the Joint Development Program shall be determined based upon the availability of its own technical personnel and financial resources, at the sole discretion of each individual participating Party. Further, the contribution of each party in terms of intellectual property shall be duly considered, alongside consideration of the level of effort in personnel and resources contributed to the Joint Development Program, when determining joint ownership of resulting intellectual property.

Section A.

Cell Technology Transfer

A.1    Scope of Cell Technology Transfer

A.1.1    Cell Technology.

FCE shall transfer the FCE Know-How to POSCO Energy and POSCO Affiliates, including but not limited to the following:

*

A.1.2    Method for the Technology Transfer

A.1.2.1    Personnel

FCE and POSCO Energy/POSCO Affiliate will each appoint a dedicated Program Manager to serve as the primary point of interface between POSCO Energy/POSCO Affiliate and FCE. FCE will also support the program with management and expertise gathered from its manufacturing department and related departments to successfully execute this CTTP.

A.1.2.2    Mechanism for the Transfer of Technology

Information will be transferred using a web-based portal known as *. FCE will notify

POSCO Energy as soon as practicable when any changes to the information have been made by FCE, and will post such modified information on the web portal for downloading by POSCO Energy/POSCO Affiliate. FCE will supply a report of technology and design changes weekly, following the same process that has been established for the STTP. A procedure for managing changes to the cell design technology, manufacturing process, raw materials, or change in supply chain that affect short- and long-term performance shall be implemented and maintained by both parties mutually. FCE will notify POSCO Energy of impacts due to changes that affect manufacturing processes or component designs, and will transfer revised procedures. Other than the aforementioned method, information will also be transferred by the following method, consistent with Section 4 above, and the specific plan will be decided within 60 days of the Effective Date of this CTTP.

i) Training session for general and/or specific design activity (Annex B)

ii) Periodic and/or ad hoc Q&A session

iii) Participation of POSCO Energy in FCE’s existing projects upon FCE’s prior consent

iv) Project jointly conducted by both companies

For the avoidance of doubt, a similar plan will also be developed for the stack design information and technology transfer within the same date mentioned above.

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

A.1.3    Compensation for FCE’s activities beyond initial Cell Technology Transfer

In the occasion POSCO Energy requires FCE’s labor for transferring information beyond currently available material, including but not limited to training, documentation of undocumented information, meetings, communications (verbal or written), technical experiments and activities, POSCO Energy shall initiate Service request process by following the steps below.

Step 1. POSCO Energy requests FCE’s support or labor by submitting a written communication to FCE counterpart arranged in the joint team of each information transfer activity.

Step 2. FCE provides assessment of time and material with the schedule of completion to be required in fulfilling the request, within ten (10) working days from initial request submitted by POSCO Energy. Such assessment shall include a proposed milestone based estimated fee structure for the required activity.

Step 3. POSCO Energy reviews FCE’s assessment on time and material with completion schedule and provide a written approval to FCE.

Step 4. FCE initiates its activity requested by POSCO Energy.

Step 5. FCE shall bill POSCO Energy based upon the schedule of the estimated fee structure agreed to in Step 2. When each milestone is met, FCE shall provide a detailed invoice including actual labor performed and materials used. POSCO Energy shall remit funds within 30 days of the detailed invoice receipt.

A.1.3.1    Travel Expenses

Documented travel and living expenses for FCE personnel during visits to POSCO Energy/POSCO Affiliate facilities in Korea or other locations, when carried out pursuant to the Cell Technology Transfer or at the request of POSCO Energy or POSCO Affiliate, shall be borne by POSCO Energy or POSCO Affiliate, and, if paid by FCE, shall be reimbursed to FCE by POSCO Energy. The parties agree to follow the payment standard for traveling expenses by FCE’s employees as shown in Attachment 1. Invoices from FCE to POSCO Energy/POSCO Affiliates shall be issued to POSCO Energy.

Section B.

Cell Manufacturing Facility Technical Support

B.1 Repeating Component Manufacturing Realization

FCE shall transfer the Repeating Component Manufacturing FCE Know-How listed in Appendix “B” of this agreement to POSCO Energy in accordance with the Repeating Component Manufacturing Facility Program schedule set forth in Appendix “A” of this Agreement.

B.1.1. Manufacturing Information to be transferred

FCE shall provide the RC manufacturing related information, as described in Appendix “B”.

B.1.2 Facility Design Basis and Costs

The design basis for the Repeating Component Manufacturing Facility is shown in Appendix “C”.

B.1.3 Method for the Technology Transfer

B.1.3.1 Personnel

FCE and POSCO Energy/POSCO Affiliate will each appoint a dedicated Program Manager to serve as the primary point of interface between POSCO Energy/POSCO Affiliate and FCE. FCE will also support the program with management and expertise gathered from its manufacturing department and related departments to successfully execute this agreement.

B.1.3.2 Mechanism for the Transfer of Technology

Initial Repeating Component Manufacturing FCE Know-How will be transferred using a web-based portal known as *. Following the initial transfer of the FCE Know-How, FCE will notify POSCO Energy as soon as practicable when any changes to the information have been made by FCE, and will post such modified information on the web portal for downloading by POSCO Energy/POSCO Affiliate. A procedure for managing changes to the manufacturing processes that affect short-term and/or long-term performance shall be implemented and maintained by both parties mutually. FCE will notify POSCO Energy of impacts due to changes that affect manufacturing process, or component design, and transfer revised procedures. In addition, processes for recording the RC manufacturing data of the RCs manufactured at the POSCO facility shall be implemented, maintained and accessible by both parties mutually.

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

B.1.3.3 Training

B.1.3.3.1    Certification Training Program for Repeating Component Manufacturing

FCE shall develop Certification Training Programs for repeating component

manufacturing processes, which shall be offered to POSCO Energy and/or POSCO Affiliate consistent with the scope and timing of the technology transfer program described hereunder. POSCO Energy agrees to undertake the training program designed by FCE, and FCE agrees to confer certified status on employees of POSCO Energy and/or POSCO Affiliate who successfully complete the training. FCE shall provide a POSCO Energy trainer certification program. Additionally, POSCO Energy and/or POSCO Affiliate agree to undergo periodic refresher training by FCE to maintain the certification status of all personnel who are to be employed at the repeating component manufacturing facility. Periodic refresher training shall take place by mutual agreement between POSCO Energy and FCE. All training will be administered per the project schedule of Appendix “A”.

B.1.3.4 Organization and Personnel Recommendations

FCE will provide a recommended organizational structure, job descriptions and required background experience for each position. FCE will specify which job descriptions need certification, including the duration of the certification, per paragraph B.1.3.3.1.

B.1.3.5    Meetings

B.1.3.5.1 Regular Meetings

Regular meetings will take place as defined in the project schedule in Appendix “A”. Following is a brief description of the various types of meetings which shall be scheduled:

a. Program Reviews are conducted to ensure that milestones have been met in accordance with the requirements as defined in Appendix “A”.

b. Facility Design Reviews are technical reviews of repeating component manufacturing facilities, and they are conducted to ensure best practices in manufacturing are captured prior to commencing construction activities. FCE proposes both preliminary and final Facility Design Reviews.

c. Quality Reviews are joint reviews of Quality Assurance Methodologies conducted per Section B.4.

B.1.3.5.2    Ad Hoc Meetings

Ad Hoc meetings beyond the above regular meetings will take place on an as-needed basis by mutual agreement.

B.1.4 Repeating Component Manufacturing Facility

Technical advisory and supporting services in the installation, troubleshooting, and preparing for operations of the equipment and facilities in the Facility shall be addressed.

B.1.4.1 Building

POSCO Energy shall be directly responsible for providing sufficient space for the Repeating Component Manufacturing Facility.

B.1.4.2 Equipment

POSCO Energy shall be directly responsible for the procurement and quality of all equipment and tools required and procured for the Repeating Component Manufacturing Facility. POSCO Energy is responsible for all aspects of the equipment, including but not limited to safety, commissioning, qualification, and environmental considerations. POSCO Energy is also responsible for all adders to equipment purchase orders, including but not limited to those that happen during commissioning and qualification at the Pohang site.

Appendix “F” outlines the Repeating Component Manufacturing Facility Capital Equipment Procurement Strategy. Both companies agree to follow this strategy.

B.1.4.3 Logistics and Customs    

POSCO Energy shall be directly responsible for activities of logistics and customs clearance relating to timely delivery of equipment required for the Repeating Component Manufacturing Facility.

B.1.4.4 Technical Support, Commissioning and Training

FCE shall provide, with compensation to be agreed on in a separate contract, technical support, commissioning, training, materials and travel expenses required for normal operation of the Repeating Component Manufacturing Facility.

B.1.4.5 Method of Payment

POSCO Energy shall remit payment to FCE via wire transfer (T/T).

B.1.5 Use of Affiliates

Where any party uses or proposes to use an Affiliate to meet any of its obligations under this Agreement, such party, prior to any services being provided by the Affiliate, shall cause the Affiliate to execute and deliver an undertaking in a form satisfactory to the other party binding the Affiliate to this Agreement.

B.1.6 Dispatch of Technical Personnel

Each Party agrees to send its employees with relevant technical knowledge to the other’s premises to promote the execution of the Repeating Component Manufacturing Facility Program and to host such employees sent by the other Party. The identity and number of such employees shall be mutually agreed by the Parties.

B.1.7 Roles and Responsibilities

The parties agree to follow and execute per “Roles and Responsibilities Matrix” listed in Appendix “D”.

B.1.8 Deliverables

Throughout the Repeating Component Manufacturing Facility Program, the Parties shall produce drawings, documents, and reports as listed in Appendix “G”.

B.1.9     Exchange of Information

The Parties acknowledge and agree that the exchange of information between FCE and POSCO Energy under this Agreement shall be consistent with the grant of licensed technology in the CTTA; and that the accelerated schedule for the Repeating Component Manufacturing Facility Program will necessitate focused contributions by each of the Parties and will discuss to include the opportunity for formal training sessions. FCE agrees to provide to POSCO Energy the information reasonably available and in then-current use by FCE, to enable POSCO Energy to carry out this purpose.

B.2. Quality Plans

Current quality methodologies for repeating component manufacturing and material supply management will be transferred. Both parties will work together to develop and exchange future improved quality assurance methodologies for repeating component manufacturing and supply chain management.

B.3. Quality Audits

For three (3) years from the operational date of the new facility, to ensure that POSCO Energy is working in accordance to FCE’s specifications, upon mutual agreement as to reasonable time and condition, FCE may inspect: (1) POSCO Energy’s repeating components during their manufacture, including repeating component manufacturing, inspection, transportation and storage; (2) POSCO Energy’s training records of personnel involved in manufacturing and storing the fuel-cell components and products, as well as work instructions and other training material developed by POSCO Energy for the production of fuel-cell components; (3) POSCO Energy’s tooling and tooling documentation used to produce fuel-cell components and products; and (4) POSCO Energy’s supplier quality.

Section C.

Integrated Global Supply Plan

C.1. Integrated Global Supply Plan

Within ninety (90) days of the Effective Date of this CTTP, the Parties shall establish and mutually agree to the Integrated Global Supply Plan in accordance with the Integrated Global Supply Chain Strategy in Appendix “H”. The Integrated Global Supply Plan shall include the vendor and material information, qualification processes, and the target schedule for the integrated global supply chain strategy consistent with the CTTA, subject to the changes to be made by the Parties upon negotiation.

C.2 Compensation for the Labor

The Parties agree to be mutually responsible for the cost of labor incurred by activities creating commercially agreeable mutual benefits in relation to Integrated Global Supply Strategy included in Exhibit “J”.

When additional activities such as, but not limited to, validation of new RC material substitution, RC material vendor qualification for POSCO Energy’s own supplier development are required for FCE to conduct, POSCO Energy shall compensate FCE by issuing a written purchase order based on agreed to time and material quotation provided by FCE per FCE Standard Service labor Rate of Attachment 3.

Step 1. POSCO Energy requests FCE’s support or labor by submitting a written communication to FCE counterpart arranged in the joint team of each information transfer activity.

Step 2. FCE provides assessment of time and material with the schedule of completion to be required in fulfilling the request, within ten (10) working days from initial request submitted by POSCO Energy. Such assessment shall include a proposed milestone based estimated fee structure for the required activity.

Step 3. POSCO Energy reviews FCE’s assessment on time and material with completion schedule and provide a written approval to FCE.

Step 4. FCE initiates its activity requested by POSCO Energy.

Step 5. FCE shall bill POSCO Energy based upon the schedule of the estimated fee structure agreed to in Step 2. When each milestone is met, FCE shall provide a detailed invoice including actual labor performed and materials used. POSCO Energy shall remit funds within 30 days of the detailed invoice receipt.

C.2.1 Travel Expenses

Documented travel and living expenses for FCE personnel during visits to POSCO Energy/POSCO Affiliate facilities in Korea or other locations, when carried out pursuant to Integrated Global Supply Plan or at the request of POSCO Energy or POSCO Affiliate, shall be borne by POSCO Energy or POSCO Affiliate, and, if paid by FCE, shall be reimbursed to FCE. The

parties agree to follow the payment standard for traveling expenses by FCE’s employees as shown in Attachment 1. Invoices from FCE to POSCO Energy/POSCO Affiliates shall be issued to POSCO Energy.

C.3    Quality Plans

Current quality methodologies for repeating component manufacturing and material supply management will be transferred. Both parties will work together to develop and exchange future improved quality assurance methodologies for repeating component manufacturing and supply chain management.

C.4    Quality Audits

For three (3) years from the operational date of the new facility, to ensure that POSCO Energy is working in accordance to FCE’s specifications, upon mutual agreement as to reasonable time and condition, FCE may inspect: (1) POSCO Energy’s repeating components during their manufacture, including repeating component manufacturing, inspection, transportation and storage; (2) POSCO Energy’s training records of personnel involved in manufacturing and storing the fuel-cell components and products, as well as work instructions and other training material developed by POSCO Energy for the production of fuel-cell components; (3) POSCO Energy’s tooling and tooling documentation used to produce fuel-cell components and products; and (4) POSCO Energy’s supplier quality.

Section D.

Service Technology Transfer

D.1.    Scope of Service Technology Transfer

FCE shall transfer the FCE Know-How relating to Customer Service Technology listed in Appendix “I” of this agreement as available to POSCO Energy/POSCO Affiliate.

D.1.1    Method for the Technology Transfer

D.1.1.1        Personnel

FCE and POSCO Energy/POSCO Affiliate will each appoint a dedicated Program Manager to serve as the primary point of interface between POSCO Energy/POSCO Affiliate and FCE. FCE will also support the program with management and expertise gathered from its service department and related departments to successfully execute this agreement.

D.1.1.2        Mechanism for the Transfer of Technology

Initial FCE Know-How relating to Customer Service Technology will be transferred using a web-based portal known as *. Following the initial transfer of the FCE Know-How, FCE will notify POSCO Energy as soon as practicable when any changes to the information have been made by FCE, and will post such modified information on the web portal for downloading by POSCO Energy/POSCO Affiliate.

A procedure for managing changes to the POSCO Energy fleet shall be implemented and maintained by both parties mutually. FCE will notify POSCO Energy of product or process changes that are expected to affect operation, maintenance and repair processes and analysis procedures with regard to the POSCO Energy fleet.

D.1.1.3        Training Programs

Both Parties agree to develop and use OJT Programs to support the service technology transfer. FCE agrees to develop OJT programs for related to the maintaining, operating , monitoring, repairing, upgrading and evaluating Stack Modules, which shall be offered to POSCO Energy and/or POSCO Affiliate consistent with the scope and timing of the CTTP. POSCO Energy agrees to undertake the OJT program designed by FCE, and FCE agrees to confer certified status on employees of POSCO Energy and/or POSCO Affiliate who successfully complete the OJT.

D.2    Compensation for FCE’s activities beyond initial Service Technology Transfer

In the occasion POSCO Energy requires FCE’s labor for transferring information beyond

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

currently available material, including but not limited to training, documentation of undocumented information, meetings, communications (verbal or written), technical

experiments and activities, POSCO Energy shall initiate Service request process by following the steps below.

Step 1. POSCO Energy requests FCE’s support or labor by submitting a written communication to FCE counterpart arranged in the joint team of each information transfer activity.

Step 2. FCE provides assessment of time and material with the schedule of completion to be required in fulfilling the request, within ten (10) working days from initial request submitted by POSCO Energy. Such assessment shall include a proposed milestone based estimated fee structure for the required activity.

Step 3. POSCO Energy reviews FCE’s assessment on time and material with completion schedule and provide a written approval to FCE.

Step 4. FCE initiates its activity requested by POSCO Energy.

Step 5. FCE shall bill POSCO Energy based upon the schedule of the estimated fee structure agreed to in Step 2. When each milestone is met, FCE shall provide a detailed invoice including actual labor performed and materials used. POSCO Energy shall remit funds within 30 days of the detailed invoice receipt.

D.2.1    Travel Expenses

Documented travel and living expenses for FCE personnel during visits to POSCO Energy/POSCO Affiliate facilities in Korea or other locations, when carried out pursuant to the Service Technology Transfer or at the request of POSCO Energy or POSCO Affiliate, shall be borne by POSCO Energy or POSCO Affiliate, and, if paid by FCE, shall be reimbursed to FCE by POSCO Energy. The parties agree to follow the payment standard for traveling expenses by FCE’s employees as shown in Attachment 1. Invoices from FCE to POSCO Energy/POSCO Affiliates shall be issued to POSCO Energy.

List of Appendices, Tables and Attachments

LIST OF APPENDICES

Appendix “A” Repeating Component Manufacturing Facility Program Schedule

Appendix “B” Repeating Component Manufacturing Process Information to be transferred by CTTP

Appendix “C”    Repeating Component Manufacturing Facility Design Basis

Appendix “D” Repeating Component Manufacturing Facility Roles and Responsibilities Matrix

Appendix “E” Repeating Component Manufacturing Facility Sample Organization Structure

Appendix “F” Repeating Component Manufacturing Facility Capital Equipment Procurement Strategy

Appendix “G” Repeating Component Manufacturing Facility Program Milestones and Deliverables

Appendix “H”    Integrated Global Supply Chain Strategy

Appendix “I”    Customer Service related Information to be Transferred by CTTP

LIST OF ATTACHMENTS

Attachment 1 Payment Standard for Traveling Expenses by FCE’s Employees

Attachment 2 FCE Standard Service Labor Rate

Attachment 3 Formal Process for Request and Approval of Technology Changes (4-Step Process)

LIST OF TABLES

Table 1 FCE Post Test Procedures

Annex A Other Available Documents

Annex B    Examples of expected training Topic

Appendix “A”

Target CTTP Schedule

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “B”

Repeating Component Manufacturing Facility Process Information to be Transferred by CTTP

Document Type	Description
*	*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “C”

Repeating Component Manufacturing Facility Design Basis

Capacity

The facility shall provide 140MW/y of repeating component production. Initially, only 70MW/y of capital equipment shall be installed, while the building and utilities shall be built for 140MW/y.

Site

The facility shall be contiguous to the south side of the current Module Production Facility so repeating components can be moved directly into Final Assembly. Appropriate space will be left outside the building for the necessary parking and logistical traffic, and space will be allowed within the facility to permit warehousing the required level of raw materials for repeating components and transfer of non-repeating components to the Module Production Facility. It is expected that most warehousing will be provided at another facility on the campus.

The building dimensions shall be approximately 120m wide by 138m long.

Space must be planned for bulk gasses required by the manufacturing equipment.

Process Improvements

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

APPENDIX “D”

RC Component Manufacturing Facility Realization Program Roles and Responsibility

Phases and Tasks	FCE	PE
*	*	*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “E”

Repeating Component Manufacturing Facility Sample Organization Structure

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “F”

Capital Equipment Procurement Strategy

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “G”

Repeating Components Manufacturing Facility Program Milestones and Deliverables

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “H”

Integrated Global Supply Chain Strategy

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Appendix “I”

Service Technology to be Transferred by CTTP

Technology and Know-how	Description
*	*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Table 1, FCE Post Test Procedures

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Annex A, Other Available Documents and Documents that could be developed under Section 4

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Annex B, Examples of expected training Topic

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Attachment 1, Payment Standard for Traveling Expenses by FCE’s Personnel

1. SCOPE

The present standard shall apply to the standard for traveling expenses by officers or employees of FuelCell Energy, Inc. (“FCE”) for the purposes of transfer of fuel cell stack module assembly technology or construction of manufacturing plant in Korea at POSCO Energy or POSCO Affiliate’s request.

2. PAYMENT STANDARD

1) Transportation, food, and lodging expenses shall be paid for the traveling personnel except for the amount corresponding to purposes other than the affairs involving POSCO Energy or POSCO Affiliate.

2) Transportation expenses shall mean airfare in principle, but in the event no airlines in Korea or other reasons not permitting air travel exist, railroad, automobile, or passage fare will be paid for the traveling personnel.

3) The standard payment rate for transportation expenses shall follow Schedule A.

4) Traveling personnel’s food and lodging expenses shall be paid by the number of days spent for the business trip in case of food expenses and the number of days requiring lodging in case of lodging expenses in accordance with Schedule B. In the case of business trip by air travel, however, lodging and food expenses shall be paid only in the cases requiring lodging due to events beyond one’s control.

5) Food and lodging expenses as specified in Schedule B shall be paid as much as the actual expenses within the range specified in Schedule B for Officers, and as a fixed per diem amount for all employees as shown. Receipts or proof of expenses must be produced for the reimbursement.

6) Officers shall mean the employees whose title is Vice President or higher at FCE

Schedule A: Transportation Expenses

(Unit : US$)

Item	Airfare		Railroad / Auto / Passage Fare
	Domestic	International
Officer	Business Class	Business Class	Actual Expense
Employee	Economy Class	Business Class

Note) 1) In the event that no reservation for the designated class above can be made, the designated class can be changed to higher or lower class.

Schedule B: Traveling Expenses

(Unit : US$)

Item	Food Expenses (Actual Expense)	Lodging (Actual Expenses)
Officer	Actual Expense	Actual Expense (Standard Room)
Employee	80 Per Diem	140

Note) Food and lodging expenses for the employees shall be paid as much as the actual expenses/ Pier Diem within the limit shown above(receipt or proof of expenses is required).

3. PAYMENT METHOD

1) Transportation expenses and traveling expenses shall be calculated in units of one month in principle, and FCE shall bill POSCO Energy or POSCO Affiliate for the expenses.

2) “POSCO Energy or POSCO Affiliate” shall write up and send to FCE the statement of payment based on the bill sent by FCE and directly pay the corresponding amount in US dollars along with the statement of payment by applying the first basic rate of foreign exchange (USD) as of the date the bill is paid.

◦ Payment Date : 30 days within the date on the bill issued by FCE if there are no debatable issues

◦ Payment Method : wire transfer to a bank account designated by FCE

Attachment 2

FCE Standard Labor Rates

Labor Category	Rate,$/hour
Engineer - Product/Manufacturing
Hourly Rate	*
Service Team Leader
Hourly Rate	*
Technician - MFG or Service
Hourly Rate	*
Advanced Technology/R&D
Hourly Rate	*
Project, Construction, or Customer Manager
Hourly Rate	*

If overtime is required in support of specific tasks, as pre agreed to by Posco Energy, rates will have to be increased and paid in adherence to Connecticut labor laws. Which is essentially 150% over 40 hours in a given week and 200% for any hours worked on a holiday.

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

Attachment 3

Request and Approval of Technology Changes (4-Step Process)

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

EXHIBIT B

U.S. DOE APPROVAL

EXHIBIT C

LIST OF FCE PATENTS

I. U.S. Patents Held by FCE

	Title	Inventor(s)	Status	Application No.	Patent No.
1	Improved anode structure for molten carbonate fuel cell	A. Hilmi C. Yuh M. Farooque	Patented	11538922	8,062,779
2	Anode with Ceramic Additives for Molten Carbonate Fuel Cell	Hilmi, Abdelkader Yuh, Chao-Yi Farooque, Mohammad	Patented	12054997	8,163,437
3	Fuel Cell Anode and Fuel Cell	Doyon J	Patented	8336870	5,558,948
4	Dual-Porosity Ribbed Fuel Cell Cathode	R. Johnsen, C. Yuh and M. Alexander	Patented	10226450	6,890,679
5	Continuous Method for Manufacture of Uniform Size Flake or Powder	J. Doyon and T. Lucas	Patented	10171148	6,884,269
6	Continuous Method and Apparatus for Manufacture of Uniform Size Flake or Powder	J. Doyon and T. Lucas	Patented	10835786	7,060,219
7	Electrolyte Matrix for Molten Carbonate Fuel Cells	Huang C Yuh C	Patented	766518	5,869,203
8	Method of Making Matrix for Carbonate Fuel Cells	C. Huang, C. Yuh, J. Doyon	Patented	9135811	5,997,794
9	Bipolar separator plate for use in a fuel cell assembly and for preventing poisoning of reforming catalyst	C. Yuh	Patented	12016564	7,985,512
10	Process for preparing a separator plate for a melt carbonate fuel cell and separator plate prepared according to this process	Nitschke, Felix | Wind, Jorg | Huber, Heinz	Patented	695860	5,698,337
11	Bipolar Separator	Farooque M Doyon J D Primerano T	Patented	8725286	5,773,161
12	Bipolar Separator for Use in a Fuel Cell Assembly	M. Farooque, M. Primerano, C. Yuh	Patented	9135737	6,159,627
13	Bipolar Separator Plate with Improved Wet Seals	C. Yuh, J. Li, M. Primerano, and T. Lucas	Patented	9451132	6,372,374

14	Method of Coating a Support Plate and Fuel Cell Provided with Such a Support Plate	R.C. Makkus E. Bullock A.H.H. Janssen Y. Denos M. Cassier	Patented	9807025	6,761,927
15	Fuel Cell Plate Structure Having Baffles in Wet Seal Area	Z. Ma C. Yuh D. Kelley M. Farooque W. Beesley	Patented	11396151	7,740,988
16	Cathode Side Hardware for Carbonate Fuel Cells	G. Xu C. Yuh M. Farooque	Patented	10867975	7,914,946
17	Cathode Side Hardware for Carbonate Fuel Cells	G. Xu C. Yuh	Patented	11137018	7,919,214
18	Fuel Cell Assembly and Method of Making Same	Correa, Salvador E. Lucas, Thomas M. Novacco, Lawrence J.	Patented	11746911	8,137,741
19	Sol-gel Coated Cathode Side Hardware for Carbonate Fuel Cells	C. Huang and J. Li	Patented	9848023	6,645,657
20	Method of Manufacturing an Electrochemical Cell	Sitters, Eric Franciscus Van Heuveln, Frederik Hendrik	Patented	793846	5,885,309
21	Inactive end cell assembly for fuel cells for improved electrolyte management and electrical contact	C. Yuh, R. Johnsen and M. Farooque	Patented	10407544	7,201,985
22	Internal Reforming Fuel Cell Assembly With Simplified Fuel Feed	M. Farooque, L.J. Novacco, J.P. Allen	Patented	9251196	6,200,696
23	High performance internal reforming unit for high temperature fuel cells	Z. Ma R. Venkataraman L. Novacco	Patented	11030747	7,431,746
24	Flexible Fuel Cell Gas Manifold System	M. Cramer; J. Shah; R. Hayes and D. Kelley	Patented	10264866	6,887,611
25	Retention System for Fuel Cell Stack Manifolds	S. Blanchet, M. Cramer and R. Zepko	Patented	9636452	6,461,756
26	Fuel Cell End Unit with Integrated Heat Exchanger	S. Blanchet P. Patel	Patented	10329182	7,070,874
27	Fuel Cell End Unit with Integrated Heat Exchanger	S. Blanchet P. Patel	Patented	11436748	7,393,605
28	Fuel Cell Stack Compressive Loading System	S. Blanchet	Patented	10329116	6,797,425
29	Fuel Cell Stack Compression System	S. Blanchet, M. Cramer and R. Hayes	Patented	9651921	6,413,665

30	Fuel Cell System with Mixer/Eductor	S. Blanchet and P. Patel	Patented	10187495	6,902,840
31	Wet-Seal Caulk for Carbonate Fuel Cell	D. Kelley C. Yuh M. Farooque	Patented	11396154	8,057,955
32	Fibrous ceramic material and method for making same	C. Yuh D. Kelley N. Jalani	Patented	12233427	8,088,697
33	Manifold gasket accommodating differential movement of fuel cell stack	D. Kelley M. Farooque	Patented	11022977	7,294,427
34	Ultra-Smooth Dielectric Members for Liquid Electrolyte Fuel Cells	Li J Maru H	Patented	9736549	6,514,636
35	Fuel cell system including a unit for electrical isolation of a fuel cell stack from a manifold assembly and method therefor	M. Farooque D. Kelley K. Davis	Patented	11020593	7,276,304
36	Dielectric frame assembly and fuel cell manifold	E. Hansell K. Dickson M. Farooque D. Kelley P. Gilbert	Patented	11020592	7,494,736
37	Modular Fuel-Cell Stack Assembly	W. Urko andP. Patel	Patented	10916235	7,323,270
38	Modular Fuel-Cell Stack Assembly	P. Patel	Patented	11970411	7,754,393
39	High-lithium electrolyte for use in molten carbonate fuel cells and method for making same	A. Hilmi C. Yuh M. Farooque	Patented	11130378	7,524,576
40	Carbonate Fuel Cell and Components Thereof for In-Situ Delayed Addition of Carbonate Electrolyte	R. Johnsen C. Yuh M. Farooque	Patented	11139758	7,939,219
41	Method for producing plate-shaped components or combinations of components	De Rooij, Robert Nammensma, Pieter	Patented	9194360	6,217,812
42	Carbonate Fuel Cell Matrix	M. Farooque C. Yuh	Patented	8319269	5,580,673
43	Carbonate Fuel Cell with Direct Recycle of Anode Exhaust to Cathode	Bernard R M.	Patented	8237675	5,422,195
44	Fuel Cell Sub-Assembly with a Plurality of Dimples	J. Allen	Patented	8698439	5,795,665
45	Catalyst Assembly for Internal Reforming Fuel Cell	M. Farooque P. Patel J. Allen	Patented	8667980	5,660,941
46	Catalyst and/or Electrolyte Loaded Plate and Method of Making Same	C. Haung, C. Yuh, M. Farooque	Patented	10361393	6,942,943

47	Electrolyte Creepage Barrier for Liquid Electolyte Fuel Cells	J. Li, M. Farooque, C. Yuh	Patented	10405569	7,320,838
48	Manifold and Sealing Assembly for Fuel Cell Stack	D. Kelley and R. Hayes	Patented	9797021	6,531,237
49	Corrugated Current Collector for Direct Internal Reforming Fuel Cells	S. Blanchet, L. Novacco and J. Doyon	Patented	9891690	6,492,045
50	Anode Support for Carbonate Fuel Cells	C. Yuh and J. Li	Patented	10028599	6,719,946
51	Compliant Manifold Gasket	M. Farooque C. Yuh M. Cramer D. Kelley	Patented	10627035	6,964,825
52	Reforming Catalyst and Method and Apparatus for Making and Loading Same	S. Katikaneni S. Correa E. Gladke	Patented	11280633	7,655,196
53	In-Situ Removal of Electrolyte from Gas Oxidizer	S. Katikaneni M. Farooque	Patented	11022914	7,381,487
54	Reactant Flow Arrangement of a Power System of Several Internal Reforming Fuel Cell Stacks	N. J. J. Dekker R. G. Fellows	Patented	9297835	6,344,289
55	Flow Control Assembly for Use with Fuel Cell Systems Operating on Fuels with Varying Fuel Composition	J. Daly F. Jahnke S. Koehler	Patented	11931746	8,062,804
56	Gasket for Molten Carbonate Fuel Cell	Farooque, Mohammad Allen, Jeff	Patented	7570034	5,110,692
57	High-Efficiency Dual-Stack Molten Carbonate Fuel Cell System	F. Jahnke M. Farooque H. Ghezel-Ayagh	Patented	13275524	8,236,458
58	Catalyst assembly for use in anode gas oxidizing systems of high temperature fuel cells	S. Blanchet S. Katikaneni	Patented	11195146	7,678,483
59	Control assembly for controlling a fuel cell system during shutdown and restart	R. Venkataraman M. Farooque G. Carlson G. Berntsen D. Beachy S. Peterhans M. Bischoff	Patented	11202010	7,736,777
60	Low Flow Bypass	K. Arneson F. Jahnke G. Berntsen	Patented	11404551	7,939,215
61	Fuel Cell System with Recycle of Anode Exhaust Gas	F. Jahnke S. Parab	Patented	10439132	7,060,382
62	Fuel Cell Assembly Using Multiple Fuel Cell Stacks and Control Method Therefor	G. Berntsen J. Doyon	Patented	11430107	7,800,340

63	Carbonate Fuel Cell System with Thermally Integrated Gasification	Steinfeld G Meyers S J Lee A	Patented	8368430	5,554,453
64	Metal-Ceramic Joint Assembly	J. Li	Patented	9292440	6,410,161
65	Assembly for and Method of Housing an Object, Such as Fuel Cell Balance of Plant Equipment, for Transport to and Storage at a User Location	K. Arneson L. Ernst Jr. A. Durante G. Chenot	Patented	11409873	7,556,472
66	High-Capacity Sulfur Adsorbent Bed and Gas Desulfurization Method	S. Katikaneni S. Parab	Patented	10628653	7,063,732
67	Method and system for recovering high power output operation of high temperature fuel cells using a rapid load recovery procedure	J. Daly W. Livingood R. Venkataraman M. Farooque	Patented	11475475	8,202,661

II. U.S. Applications Held by FCE

	Title	Inventor(s)	Status	Application No.
1	Molten carbonate fuel cell cathode with mixed oxide coating	Hilmi, Abdelkader Yuh, Chao-Yi	Pending	10755483
2	Coated Support Material for Use in Fabricating a Fuel Cell Matrix and Method of Forming Same Using Alkaline Precursors	Xu, Gengfu Yuh, Chao-Yi	Pending	11462810
3	Fuel Cell Assembly and Method of Making Same	S. Correa T. Lucas L. Novacco	Pending	13424028
4	Internal Reforming Fuel Cell Assembly with External Manifold and Selective Catalyst Loading for Staging Fuel Supply Within High Temperature Fuel Cell Stack	Z. Ma M. Farooque R. Venkataraman	Pending	12720328
5	Modular Fuel Cell Stack Assembly Including Anode Gas Oxidizer and Integrated External Manifolds for Use in Fuel Cell Stack Modules	Z. Ma M. Farooque R. Venkataraman M. Cramer A. Barlow	Pending	12996437
6	Flow Distribution Control Baffle Plate For Fuel Cells	J. McInerney L. Ernst M. Farooque E. Hansell D. Nedu K. Davis W. Snyder M. Quantannens	Pending	13016519

7	Method and manufacturing assembly for sintering fuel cell electrodes and impregnating porous electrodes with electrolyte powders by induction heating for mass production	T. Lucas W. Zhu T. Vailionis	Pending	13198600
8	High Performance Electrolyte For Molten Carbonate Cells	A. Hilmi C. Yuh M. Farooque	Pending	12840736
9	Bipolar Separator Assembly For Fuel Cells And Method Of Making Same	W. Morris L. Novacco M. Primerano	Pending	13150838
10	Gas flow control assembly for use with fuel cell systems operating on fuels with varying fuel composition	R. Venkataraman G. Berntsen G. L. Carlson F. C. Jahnke A. J. Leo	Pending	11089799
11	On-line Monitoring Assembly for Detection of Sulfur Breakthrough in a Desulfurizer Assembly and Sulfur Breakthrough Detection Method	S. P. Kaitikaneni J. M. Daly	Pending	11782989
12	Water recovery assembly for use in high temperature fuel cell systems	F. C. Jahnke J. M. Daly A. J. Leo	Pending	11971663
13	Water Recovery Assembly for Transferring Water from Fuel Cell Cathode Exhaust	F. C. Jahnke J. M. Daly	Pending	12042231
14	Fuel Humidifier Assembly for Use in High Temperature Fuel Cell Systems	F. C. Jahnke J. M. Daly M. A. Lilback	Pending	12393623
15	Fuel Cell with Electrical Short Circuit Prevention Means	C. Yuh M. Farooque A. Hilmi R. Johnsen G. Xu	Pending	12424196
16	Fuel Cell System Manifold Seal	G. DiCostanzo D. Kelley L. Ernst, JR.	Pending	12608175
17	Sulfur Breakthrough Detection Assembly for use in a Fuel Utilization System and Sulfur Breakthrough Detection Method	J. M. Daly	Pending	12951679
18	Pre-Processing Assembly for Pre-Processing Fuel Feedstocks for use in a Fuel Cell System	S. Katikaneni J. M. Daly M. Farooque	Pending	13006959

III. Non-U.S. Patents and Applications Held by FCE

Title Inventor(s) Country Application No. / Publication No. / Patent No.

1	Improved anode structure for molten carbonate fuel cell	A. Hilmi C. Yuh M. Farooque	KR	2009-7009153
			EP	7843653.2
2	Fuel Cell Anode and Fuel Cell	Doyon J	DE	69514317.4
3	Molten carbonate fuel cell cathode with mixed oxide coating	Hilmi, Abdelkader Yuh, Chao-Yi	KR	772237
4	Continuous Method for Manufacture of Uniform Size Flake or Powder	J. Doyon and T. Lucas	JP	2005-529737
			EP	2792529.6
			IN	3516/DELNP/2004
5	Method of Making Matrix for Carbonate Fuel Cells	C. Huang C. Yuh, J. Doyon	FR	1109759
			DE	69941218.8-08
			UK	05/31/38
			IN	237851
6	Coated Support Material for Use in Fabricating a Fuel Cell Matrix and Method of Forming Same Using Alkaline Precursors	Xu, Gengfu Yuh, Chao-Yi	KR	2009-0035584
7	Bipolar separator plate for use in a fuel cell assembly and for preventing poisoning of reforming catalyst	C. Yuh	KR	2008-0109024 (1118884)
8	Bipolar Separator	Farooque M Doyon J D Primerano T	CN	ZL97198477.8
9	Bipolar Separator Plate with Improved Wet Seals	C. Yuh, J. Li, M. Primerano, and T. Lucas	CN	1188925
			DE	60017604.5-08
10	Fuel Cell Plate Structure Having Baffles in Wet Seal Area	Z. Ma C. Yuh D. Kelley M. Farooque W. Beesley	KR	2008-0109056 (1137055)
			EP	7756434.2
11	Cathode Side Hardware for Carbonate Fuel Cells	G. Xu C. Yuh M. Farooque	JP	2008-503058
			KR	2007-7000786
			EP	5757500.3
12	Fuel Cell Assembly and Method of Making Same	Correa, Salvador E. Lucas, Thomas M. Novacco, Lawrence J.	JP	2010-507645
			KR	2009/7025370
			IN	52/2006
			EP	8747841.8
13	Inactive end cell assembly for fuel cells for improved electrolyte management and electrical contact	C. Yuh, R. Johnsen and M. Farooque	DE	60330054
			JP	4555225

14	Internal Reforming Fuel Cell Assembly With Simplified Fuel Feed	M. Farooque, L.J. Novacco, J.P. Allen	DE	69910624.9-08
15	High performance internal reforming unit for high temperature fuel cells	Z. Ma R. Venkataraman L. Novacco	JP	2008-522942
			KR	2007-7015329
			EP	5851286.4
16	Flexible Fuel Cell Gas Manifold System	M. Cramer; J. Shah; R. Hayes and D. Kelley	CN	1237642
			JP	4317132
			EP	1554767
17	Retention System for Fuel Cell Stack Manifolds	S. Blanchet, M. Cramer and R. Zepko	DE	60140371.1-08
			IN	196113
			JP	3736765
			CN	ZL01813533.1
18	Fuel Cell End Unit with Integrated Heat Exchanger	S. Blanchet P. Patel	CN	100524919
			JP	2006-512731 (JP4669917)
			EP	03814642.9-2119
19	Fuel Cell Stack Compressive Loading System	S. Blanchet	CN	ZL03825719.X
			JP	4153491
			EP	1590846
			DE	60326650.0-08
20	Fuel Cell Stack Compression System	S. Blanchet, M. Cramer and R. Hayes	CN	1222067
			JP	2004-508671
			CN	ZL01814724.0
			IN	196112
			DE	1316124
21	Fuel Cell System with Mixer/Eductor	S. Blanchet and P. Patel	CN	1332467
			JP	4146427
			IN	4060/DELNP/2004
22	Wet-Seal Caulk for Carbonate Fuel Cell	D. Kelley C. Yuh M. Farooque	KR	2008-0106472 (1111021)
			EP	7710141.8
23	Fibrous ceramic material and method for making same	C. Yuh D. Kelley N. Jalani	KR	2011-7008795
			EP	9815040.2
24	Manifold gasket accommodating differential movement of fuel cell stack	D. Kelley M. Farooque	JP	2008-525963
			KR	2007-7017280
			EP	5848515.2
25	Ultra-Smooth Dielectric Members for Liquid Electrolyte Fuel Cells	Li J Maru H	DE	60140271
			CN	ZL01820569.0
			IN	216427

26	Fuel cell system including a unit for electrical isolation of a fuel cell stack from a manifold assembly and method therefor	M. Farooque D. Kelley K. Davis	JP	2008-525970
			KR	2007-0091032
			DE	1839355
27	Dielectric frame assembly and fuel cell manifold	E. Hansell K. Dickson M. Farooque D. Kelley P. Gilbert	JP	2008-530723
			KR	2007-7016672
			EP	5825071.3
28	Modular Fuel-Cell Stack Assembly	W. Urko andP. Patel	JP	2008-510277
			KR	2007-7005400
			IN	87/DELNP/2007
			EP	5791109.1
29	High-lithium electrolyte for use in molten carbonate fuel cells and method for making same	A. Hilmi C. Yuh M. Farooque	IN	6968/DELNP/2007
			KR	2007-7029301
30	Carbonate Fuel Cell and Components Thereof for In-Situ Delayed Addition of Carbonate Electrolyte	R. Johnsen C. Yuh M. Farooque	KR	2007/7030556
31	Method for producing plate-shaped components or combinations of components	De Rooij, Robert Nammensma, Pieter	JP	3974183
			EP	914684
32	Carbonate Fuel Cell Matrix	M. Farooque C. Yuh	EP	69525413.8
			JP	2947739
33	Catalyst Assembly for Internal Reforming Fuel Cell	M. Farooque P. Patel J. Allen	DE	69737564
34	Catalyst and/or Electrolyte Loaded Plate and Method of Making Same	C. Haung, C. Yuh, M. Farooque	IN	3145/DELNP/2005
35	Manifold and Sealing Assembly for Fuel Cell Stack	D. Kelley and R. Hayes	DE	60237511.8-08
			CN	ZL03805813.X
			IN	4318667 (786/MUMNP/2003)
36	Anode Support for Carbonate Fuel Cells	C. Yuh and J. Li	DE	60211558.2-08
			IN	01319/DELNP/2004
37	Compliant Manifold Gasket	M. Farooque C. Yuh M. Cramer D. Kelley	KR	770810
			EP	4801843.6
38	Reforming Catalyst and Method and Apparatus for Making and Loading Same	S. Katikaneni S. Correa E. Gladke	IN	3128/DELNP/2008
			KR	2008/7014532

39	Reactant Flow Arrangement of a Power System of Several Internal Reforming Fuel Cell Stacks	N. J. J. Dekker R. G. Fellows	DE	947022
			KR	997004235
40	Flow Control Assembly for Use with Fuel Cell Systems Operating on Fuels with Varying Fuel Composition	J. Daly F. Jahnke S. Koehler	IN	6804/DELNP/2007
41	Gasket for Molten Carbonate Fuel Cell	Farooque, Mohammad Allen, Jeff	EP	472152
			DE	P69109971.5
42	Connection Assembly for Promoting Electrical Isolation	S. Blanchet D. Kelly M. Farooque R. Way	KR	2006-7004986 (820997)
43	Compliant Member for Wet Seal	Yuh, Chao-Yi | Cramer, Michael | Farooque, Mohammad | Kelley, Dana | Begley, Chris	KR	2006-7003077 (771321)
44	Electrolyte Matrix for Molten Carbonate Fuel Cells with Improved Pore Size and Method of Manufacturing Same	Xu, Gengfu | Yuh, Chao-Yi	KR	2007-7029052
			DE	602006024569.6
45	Mixer/Educator for High Temperature Fuel Cells	BLANCHET, Scott BARLOW, Alan SNYDER, William, J. FARRENKOPF, Dennis, R. MOFFAT, Robert, J.	KR	2006-7016225 (842987)
			JP	2006-551051
46	A Manifold System for Coupling Gases to or from the Face of a Fuel Cell Stack	N/A	IN	475/DELNP/2005 (243645)
47	A Dielectric Member for a Liquid Electrolyte Fuel Cell System	N/A	IN	832/DELNP/2003 (222761)
48	Fuel Reformer	N/A	IN	1169/DELNP/2005 (41/2009)
49	Online Monitoring Assembly for detection of Sulfur Breakthrough in a Desulfurizer Assembly and Sulfur Break Through Detection	N/A	IN	40/DELNP/2010 (32/2010)

50	Internal Reforming Fuel Cell Assembly with Selectively Adjustable Direct and Indirect Internal Reforming	N/A	IN	4066/DELNP/2006 (25/2007)
51	A Fuel Cell Assembly	N/A	IN	950/DELNP/2005 (25/2009)
52	Method and System for Recovering High Power Output Operation of High Temperature Fuel Cell by Using a Rapid Load Recovery	N/A	IN	9762/DELNP/2008 (12/2009)
53	Catalyst assembly for use in anode gas oxidizing systems of high temperature fuel cells	S. Blanchet S. Katikaneni	CN	101542802
			KR	2008-0033487
			IN	600/DELNP/2008
54	Control assembly for controlling a fuel cell system during shutdown and restart	R. Venkataraman M. Farooque G. Carlson G. Berntsen D. Beachy S. Peterhans M. Bischoff	KR	2008-0043821
55	Low Flow Bypass	K. Arneson F. Jahnke G. Berntsen	KR	2009-0005174
56	Fuel Cell System with Recycle of Anode Exhaust Gas	F. Jahnke S. Parab	JP	2006-525626
			KR	768973
57	Internal Reforming Fuel Cell Assembly With Selectively Adjustable Direct and Indirect Internal Reforming	S. Blanchet	JP	2007-520868
			KR	796111
			IN	25/2007
58	Fuel Cell Assembly Using Multiple Fuel Cell Stacks and Control Method Therefor	G. Berntsen J. Doyon	JP	2009-536781
			KR	2009-0014196
			IN	9007/DELNP/2008
			DE	2038952
59	A fuel cell system with recycle of anode exhaust gas	JAHNKE, Fred, C. | PARAB, Sanjay C.	JP	2006-501191
60	Assembly for and Method of Housing an Object, Such as Fuel Cell Balance of Plant Equipment, for Transport to and Storage at a User Location	K. Arneson L. Ernst Jr. A. Durante G. Chenot	JP	2009-534278
			KR	2008-0111448
			IN	7340/DELNP/2008
61	Pre-Processing Assembly For Pre-Processing Fuel Feedstocks For Use In A Fuel Cell System	S. Katikaneni M. Farooque	CN	101287815
			JP	2008-518870
			KR	2007-0085688

62	High-Capacity Sulfur Adsorbent Bed and Gas Desulfurization Method	S. Katikaneni S. Parab	JP	2007-500265 (JP4795950)
			KR	796110
			UK	1660215
			DE	602004030130.2-08
63	Electrolyte Creepage Barrier for Liquid Electolyte Fuel Cells	J. Li, M. Farooque, C. Yuh	EP	1994204.4
64	Anode with Ceramic Additives for Molten Carbonate Fuel Cell	Hilmi, Abdelkader Yuh, Chao-Yi Farooque, Mohammad	KR	2010/7023827
65	Anode support member and bipolar separator for use in a fuel cell assembly and preventing poisoning of performing catalyst	C. Yuh	EP	7717359.9
66	Internal reforming fuel cell assembly with external manifold and selective catalyst loading for staging fuel supply within high temperature fuel cell stack	Z. Ma D. Kelley N. Jalani	EP	10751282.4
			KR	2011/7023629
67	Modular fuel cell stack assembly including anode gas oxidizer and integrated external manifolds for use in fuel cell stack modules	Z. Ma M. Farooque R. Venkataraman M. Cramer A. Barlow	EP	9759473.3
			KR	2011/7000210
68	Flow distribution control baffle plate for fuel cells	J. McInerney L. Ernst M. Farooque E. Hansell D. Nedu K. Davis W. Snyder M. Quantannens	PCT	PCT/US2012/022322
69	Method and manufacturing assembly for sintering fuel cell electrodes and impregnating porous electrodes with electrolyte powders by induction heating for mass production	T. Lucas W. Zhu T. Vailionis	PCT	PCT/US2012/048449
70	High performance electrolyte for molten carbonate fuel cells	A. Hilmi C. Yuh M. Farooque	PCT	PCT/US2011/043952

71 Bipolar separator assembly for fuel cells and method of making same W. Morris
L. Novacco
M. Primerano PCT PCT/US2012/038536

IV. Candidate Patents Subject to Further Review

	Title	Inventor(s)	Status	Application No.	Patent No.
1	Fuel Cell Hybrid Power Plant for Gas Distribution Systems	A. Skok D. Trechroeb	Patented	11435054	8,080,344
2	Electrode Assembly and Method of Making Same	M. Lambrech P. Patel	Patented	11925368	8,053,035
3	Liquid Metal Heat Exchanger for High Temperature Fuel Cells	R. Sanderson	Patented	12233447	8,048,549
4	High-Efficiency Dual-Stack Molten Carbonate Fuel Cell System	F. Jahnke M. Farooque H. Ghezel-Ayagh	Patented	12194272	8,062,799
5	Integrated high efficiency fossil fuel power plant/fuel cell system with CO2 emissions abatement	M. Farooque F. Jahnke	Patented	10860740	7,396,603
6	Integrated Fuel Cell And Heat Engine Hybrid System For High Efficiency Power Generation	H. Ghezel-Ayagh	Patented	11733447	7,862,938
7	Enhanced High Efficiency Fuel Cell / Turbine Power Plant	H. Ghezel-Ayagh Z. Wang	Patented	10660320	6,896,988
8	Internal Reforming Fuel Cell Assembly With Selectively Adjustable Direct and Indirect Internal Reforming	S. Blanchet	Patented	10774113	6,974,644
9	High Efficiency Fuel Cell System	H. Ghezel-Ayagh, A. Leo, R. Sanderson	Patented	9453185	6,365,290
10	Biomass-Fuel Cell Cogeneration Apparatus and Method	Patel P Fan J	Patented	8596616	5,736,026
11	Methanation assembly using multiple reactors	F. Jahnke S. Parab	Patented	10818680	7,247,281
12	DFC Operation With HD-5 Propane: Fuel Processing System Design	S. Katikaneni J. Daly M. Farooque	Patented	11469527	7,455,923
13	Pre-Processing Assembly For Pre-Processing Fuel Feedstocks For Use In A Fuel Cell System	S. Katikaneni M. Farooque	Patented	12478283	7,871,450

14	Fluid Diverter for a Fuel Cell System	P. Patel F. Jahnke M. Lambrech	Pending	12499129
15	Fuel Cell Power Production System with an Integrated Hydrogen Utilization Device	H. GHEZEL-AYAGH F. C. JAHNKE	Pending	12525751
16	Fuel Supply Assembly for Supplying Propane Fuel to a Fuel Cell Assembly and Fuel Cell System Employing the Same	N/A	IN	1072/DELNP/2009 (34/2010)
17	High-Efficiency Dual-Stack Molten Carbonate Fuel Cell System	F. Jahnke M. Farooque H. Ghezel-Ayagh	KR	20110042120
18	Fuel Cell Hybrid Power Plant for Gas Distribution Systems	A. Skok D. Trechroeb	CN	101529632
			JP	2009-537954
			KR	2009-0056933
			IN	9491/DELNP/2008
19	Integrated high efficiency fossil fuel power plant/fuel cell system with CO2 emissions abatement	M. Farooque F. Jahnke	CN	101427408
			JP	2008-507113
			CN	ZL200580017924.1
			KR	2007-0057131
20	Integrated Fuel Cell And Heat Engine Hybrid System For High Efficiency Power Generation	H. Ghezel-Ayagh	KR	2009-0108104
			KR	2009-0108123
21	Enhanced High Efficiency Fuel Cell / Turbine Power Plant	H. Ghezel-Ayagh Z. Wang	JP	4516078
			KR	771357
			DE	602004025601.3-08
22	High Efficiency Fuel Cell System	H. Ghezel-Ayagh, A. Leo, R. Sanderson	CN	1218421 (00816543.2)
			JP	3751881
			DE	60039717
23	Fuel cell power production system with an integrated hydrogen utilization device	GHEZEL-AYAGH, Hossein | JAHNKE, Fred, C.	KR	2009-7017887
24	Methanation assembly using multiple reactors	F. Jahnke S. Parab	JP	2007-533662
			KR	2007-0015564
			IN	5563/DELNP/2006
25	DFC Operation With HD-5 Propane: Fuel Processing System Design	S. Katikaneni J. Daly M. Farooque	JP	2010-503156
			KR	2009-0052379

EXHIBIT D

SALES TARGETS

Year    *    *    *    *    Total

*    *    *    *    (MW)

2013    *    *    *    *    *

2014    *    *    *    *    *

2015    *    *    *    *    *

2016    *    *    *    *    *

2017    *    *    *    *    *

2018    *    *    *    *    *

2022    *    *    *    *    *

2027    *    *    *    *    *

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

SCHEDULE A

POSCO Affiliates

POSCO Affiliates shall include the following companies:

POSCO, a Korean corporation having a place of business at 1 Goedong-dong, Nam-gu, Pohang, Kyungbuk 790-704, Korea

POSCO AST, a Korean corporation having a place of business at 603 Seonggok-dong, Danwon-gu, Ansan, Gyeonggi 425-833, Korea

POSCO E&C, a Korean corporation having a place of business at 568-1 Goedong-dong, Nam-gu, Pohang, Gyeongbuk 790-704, Korea

POSCO ICT, a Korean corporation having a place of business at 606 Ho-dong, Nam-gu, Pohang, Gyeongbuk, Korea

POSCO PLANTEC, a Korean corporation having a place of business atJanghung-dong, Nam-gu, Pohang, Gyeongbuk 790-240, Korea

POSCO ENGINEERING, a Korean corporation having a place of business at 9-3 Sunae-dong, Bundang-gu, Seongnam-City, Gyeonggi-do 463-825, Korea

POSCO C&C, a Korean corporation having a place of business at 470 Janghung-dong, Nam-gu, Pohang, Gyeongbuk, Korea

POSCO SS, a Korean corporation having a place of business at Jeockhyun St. 143, Sungsan-gu, Changwon, Gyeongnam, Korea

POSCO CHEMTECH, a Korean corporation having a place of business at 1-143 Cheongnim-dong, Nam-gu, Pohang, Gyeongbuk, Korea

POSCO M-tech, a Korean corporation having a place of business at 608 Hyoja-dong, Nam-gu, Pohang, Gyeongbuk 790-330, Korea

POSCO P&S, a Korean corporation having a place of business at 735-3 POSCO P&S Tower 735-3 Yeoksam-dong, Gangnam-gu, Seoul 135-923, Korea

Daewoo International, a Korean corporation having a place of business at 84-11(Yonsei Severance Building), Namdaemunno 5-ga, Jung-gu, Seoul 100-753, Korea

RIST, a Korean research institute having a place at 32 Hyoja-dong, Nam-gu, Pohang, Gyeongbuk 790-600, Korea

SCHEDULE B

I.Countries of the Asia Market shall mean the countries noted below:

Asia

Armenia

Bangladesh

Bhutan

Brunei

Cambodia

Timor

Georgia

Indonesia

Japan

Kazakhstan

Kyrgyzstan

Laos

Malaysia

Maldives

Mongolia

Nepal

Philippines

Singapore

Republic of Korea

Tajikistan

Thailand

Turkmenistan

Uzbekistan

Vietnam

China

India

II.Countries of the Non-Asia Market shall include all countries and jurisdictions in the world excluding 1) the Asia Market set forth above in section I, and 2) the countries noted below:

Western EuropeEastern Europe

Andorra                Albania

Austria                    Bulgaria

Belgium                Czech Republic

Cyprus                    Slovakia

Denmark                Hungary

Federal Republic of Germany        Poland

Finland                Romania

France                    All states of the former USSR

Great Britain                and including, but not limited to

Northern Ireland            CIS (Commonwealth of Independent

Greece                    States)

Greenland                 Yugoslavia

Ireland                    Slovenia

Iceland                    Croatia

Italy

Liechtenstein

Luxembourg            

Malta                

Monaco

Netherlands

Norway

Portugal

San Marino

Spain

Sweden

Switzerland

The Vatican State

Middle East

Iran        

Iraq        

Lebanon

Syria

Yemen, Arab Rep.

Yemen, Peoples Rep.

North America

United States

Canada

Mexico

SCHEDULE C

FCE Previously Granted Distribution Rights

Partner	Type of Agreement and Territory	Effective Date	Expiration	Rights in Korea
Abengoa & Hynergreen (subsidiary)	Memorandum of Understanding, Non-Exclusive in Europe and South America	12-09-2011	12-08-2017	No
FuelCell Energy Solutions GmbH & Fraunhofer IKTS	Partnership Agreement Non-exclusive, Europe	06-19-2012	Indefinite	No

SCHEDULE D

FCE Third Parties under a Confidentiality Agreement

Name	Material / Component	Part Number	Commentary
*	*	*	*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

SCHEDULE E

Roadmap

*

* Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a request for Confidential Treatment.

EX-10.3

EXHIBIT 10.3

AMENDMENT TO     

TECHNOLOGY, TRANSFER, DISTRIBUTION AND LICENSING AGREEMENT

ANDSTACK TECHNOLOGY TRANSFER AND LICENSE AGREEMENT

THISAMENDMENT TO THE TECHNOLOGY, TRANSFER, DISTRIBUTION AND LICENSING AGREEMENT AND STACK TECHNOLOGY TRANSFER AND LICENSE AGREEMENT (the “Amendment”), effective as of October 31, 2012 (the “Effective Date”), is by and between FuelCell Energy, Inc., a Delaware corporation having a place of business at 3 Great Pasture Rd., Danbury, CT 06813, U.S.A. (“FCE”) and POSCO Energy Co., Ltd. (formerly POSCO Power Co., Ltd.), a Korean corporation having a place of business at POSCO Center, 440 Teheran-ro, Gangnam-gu, Seoul, Korea (“POSCO Energy”), and amends that certain (i) Technology, Transfer, Distribution and Licensing Agreement, dated as of February 7, 2007, by and between FCE and POSCO Energy (“TTA”), and (ii) Stack Technology Transfer and License Agreement, dated as of October 27, 2009, by and between FCE and POSCO Energy (“STTA”).FCE and POSCO Energy may be referred to hereunder as the “Parties.” Capitalized terms used herein, but not defined herein, shall have the meanings given to them in the TTA and the STTA.

R E C I T A L S

WHEREAS, the Parties desire to amend the royalty provisions in the TTA and STTA,in accordance with the terms and conditions set forth below.

NOW, THEREFORE, in consideration of the foregoing, the promises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Amendment of Article IV of the TTA. Article IV (Royalties) of the TTA is hereby revised by deleting 4.1% and replacing it with 3%.

2. Amendment of Article IV of the STTA. Article IV (Royalties) of the STTA is hereby revised by deleting 4.1% and replacing it with 3%.

In conjunction with this amendment, POSCO Energy shall make a one-time payment of USD $8.0 million to be received by FCE on or before January 15, 2013. Such payment shall constitute full payment and relief of POSCO Energy of the above 1.1% reduction from any remaining Royalties due to FCE under Article IV of the TTA and Article IV of the STTA for the remaining terms of the TTA and STTA.

Except as set forth above, all other terms and conditions of the TTA and the STTA shall remain in full force and effect.

IN WITNESS WHEREOF, the Parties have caused this Amendment to be executed by their duly authorized representatives as of the Effective Date.

FUELCELL ENERGY, INC.

/s/ Arthur A. Bottone

Arthur A. Bottone

President & CEO

FuelCell Energy, Inc.

October 31, 2012

POSCO ENERGY CO., LTD.

/s/ ChangKwan Oh

ChangKwan Oh

President & CEO

POSCO Energy Co., LTD.

October 31, 2012

EX-99.1

Exhibit 99.1

FOR IMMEDIATE DISTRIBUTION

FuelCell Energy Announces 121.8 Megawatt Order, Largest Ever Received by the Company and the Fuel Cell Industry

Product backlog in megawatts increases by 284 percent from Q3 2012

Danbury, CT – November 5, 2012 – – FuelCell Energy, Inc. (NASDAQ: FCEL) a global leader in the design, manufacture, operation and service of ultra-clean, efficient and reliable fuel cell power plants, today announced an order from its South Korean partner, POSCO Energy for 121.8 megawatts of fuel cell kits and services to be manufactured at the FuelCell Energy production facility in Torrington, Connecticut. The estimated value of the multi-year contract is approximately $181 million. POSCO Energy, the largest independent power producer in South Korea, is a subsidiary of POSCO, a leading global steel producer.

“POSCO Energy recently signed a contract to build the world’s largest fuel cell park, a 58.8 megawatt project located in South Korea,” said Jung-Gon Kim, Senior Vice President, POSCO Energy. “This order to FuelCell Energy for 121.8 megawatts will help us meet demand in South Korea as well as other Asian countries.”

“This is the largest order ever received by FuelCell Energy and the fuel cell industry, almost tripling our product backlog and initiating our planned increase in production levels for 2013,” said Chip Bottone, President and Chief Executive Officer, FuelCell Energy, Inc. “The extensive market acceptance in South Korea for ultra-clean and efficient fuel cell power generation is a deployment and job creation model that can and should be replicated in other regions of the world.”

South Korea adopted an ambitious renewable portfolio standard (RPS) in 2012 to promote clean energy, reduce carbon emissions, and develop a local green-industry to support economic growth. Utilities and project investors are developing new and renewable power projects under the RPS including the new 58.8 megawatt (MW) fuel cell park that is in progress with construction expected to commence in 2012. The ownership of the 58.8 MW fuel cell park includes Korea Hydro & Nuclear Power Co. Ltd., Samchully Co., POSCO Energy and financial investors. The electricity will be sold to the power grid and the heat from the fuel cells will be supplied to a district heating system.

“This multi-year committed order is really quite extraordinary from a production standpoint as it allows us to level-load our factory and provide committed volumes to our supply base, important factors for further improving our overall cost profile through operating leverage, manufacturing efficiencies and stronger supplier relationships,” commented Tony Rauseo, Chief Operating

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Officer, FuelCell Energy, Inc. “We can continue to support market development efforts by POSCO Energy through further cost reductions.”

The first delivery will occur in May 2013 to ensure an uninterrupted supply of kits as deliveries under the existing 70 MW order will conclude in April 2013. Each kit consists of 1.4 MW of fuel cell components that are interchangeable and can be used for megawatt class fuel cell power plants or sub-megawatt plants.

Mr. Bottone continued, “Production from this order, combined with production for scheduled restacks under existing service agreements, generates annual committed production of approximately 50 to 55 megawatts, which is the level needed for the Company to achieve quarterly positive gross margins.”

As an additional indicator of demand for stationary fuel cell power plants, Korea Hydro & Nuclear Power Co, Ltd. executed a memorandum of understanding with Seoul City on September 28, 2012 for the joint development of new and renewable power generation, including 120 megawatts of stationary fuel cell power plants. Expected fuel cell applications include the Seoul City subway, municipal water treatment facilities and resource collection facilities. Electrical and thermal efficiency is important under the RPS and the fuel cell power plants are expected to be configured for combined heat and power (CHP).

Direct FuelCell® (DFC®) power plants excel at solving energy, environmental and business problems by providing ultra clean, efficient and reliable distributed power generation solutions. Direct FuelCells combine a fuel such as natural gas or renewable biogas with oxygen from the ambient air to efficiently produce ultra-clean electricity and usable high quality heat through an electrochemical process. DFC power plants emit virtually no pollutants due to the absence of combustion. Avoiding the emission of nitrogen oxide (NOx), sulfur dioxide (SOx) and particulate matter supports clean air regulations and benefits public health. The high efficiency of the fuel cell power generation process reduces fuel costs and carbon emissions, and producing both electricity and heat from the same unit of fuel further supports favorable economics while also promoting sustainability.

About FuelCell Energy

Direct FuelCell® power plants are generating ultra-clean, efficient and reliable power at more than 50 locations worldwide.  With approximately 300 megawatts of power generation capacity installed or in backlog, FuelCell Energy is a global leader in providing ultra-clean baseload distributed generation to utilities, industrial operations, universities, municipal water treatment facilities, government installations and other customers around the world.  The Company’s power plants have generated more than one billion kilowatt hours of ultra-clean power using a variety of fuels including renewable biogas from wastewater treatment and food processing, as well as clean natural gas. For more information please visit our website at www.fuelcellenergy.com.

See us on YouTube at www.youtube.com/user/FuelCellEnergyInc?feature=watch.

This news release contains forward-looking statements, including statements regarding the Company’s plans and expectations regarding the continuing development, commercialization and financing of its fuel cell technology and business plans. All forward-looking statements are subject to risks and uncertainties that could cause actual results to differ materially from those projected. Factors that could cause such a difference include, without limitation, whether the Company is able to reach definitive agreements on the terms contemplated in the memorandums of agreement with POSCO Energy, general risks associated with product development, manufacturing, changes in the regulatory environment, customer strategies, potential volatility of energy prices, rapid technological change,

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competition, and the Company’s ability to achieve its sales plans and cost reduction targets, as well as other risks set forth in the Company’s filings with the Securities and Exchange Commission. The forward-looking statements contained herein speak only as of the date of this press release. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any such statement to reflect any change in the Company’s expectations or any change in events, conditions or circumstances on which any such statement is based.

Direct FuelCell, DFC, DFC/T, DFC-H2 and FuelCell Energy, Inc. are all registered trademarks of FuelCell Energy, Inc. DFC-ERG is a registered trademark jointly owned by Enbridge, Inc. and FuelCell Energy, Inc.

Contact:  
FuelCell Energy, Inc.
Kurt Goddard, Vice President Investor Relations 203-830-7494 ir@fce.com

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EX-99.2

Exhibit 99.2

FOR IMMEDIATE DISTRIBUTION

FuelCell Energy Announces Manufacturing Agreement with Partner, POSCO Energy

• $26 million license payment for manufacturing rights

• POSCO Energy to pay royalties for each fuel cell power plant sold over the next 15 years

Danbury, CT – November 5, 2012 – – FuelCell Energy, Inc. (NASDAQ: FCEL) a global leader in the design, manufacture, operation and service of ultra-clean, efficient and reliable fuel cell power plants, today announced the execution of a series of strategic initiatives with its South Korean partner, POSCO Energy, to expand the market for stationary fuel cell power plants in Asia, including a license agreement for POSCO Energy to manufacture Direct FuelCell® (DFC®) power plants in South Korea and sell throughout Asia. POSCO Energy is Korea’s largest independent power producer and is a subsidiary of POSCO, a leading global steel producer.

“With growing demand in South Korea and strong interest in Asian markets for ultra-clean distributed power generation, manufacturing in South Korea is necessary to meet customer expectations of lead times and costs,” said Jung-Gon Kim, Senior Vice President, POSCO Energy. “Local manufacturing is a cornerstone of our growth plans in South Korea and we will continue to work closely with FuelCell Energy to develop other Asian markets.”

The Cell Technology Transfer and License Agreement provides POSCO Energy the rights to manufacture carbonate fuel cell components in South Korea based on DFC technology and grants commercial rights to Asian markets. The agreement harmonizes two prior license agreements so that POSCO Energy has rights to manufacture the entire carbonate DFC power plant.

“This license agreement enables our partnership to expand global market growth while leveraging our respective capital and local production capacity,” said Chip Bottone, President and Chief Executive Officer, FuelCell Energy, Inc. “POSCO Energy will manufacture in South Korea for the South Korean market and export markets in Asia.”

A production facility will be built at the POSCO Energy campus in Pohang, South Korea to produce up to 140 megawatts of fuel cell components annually, with equipment initially procured for an expected annual production volume of 70 megawatts. Construction will begin in early 2013 and fuel cell component production is expected to start in late 2014 or early 2015. FuelCell Energy will collaborate with POSCO Energy under the license agreement to provide design and

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procurement assistance for the facility. POSCO Energy has already invested in fuel cell module assembly capabilities and balance of plant manufacturing at its Pohang campus.

“A second source of global supply and production capacity for our DFC fuel cell modules is important to project investors and customers,” commented Michael Bishop, Chief Financial Officer, FuelCell Energy, Inc. “This licensing agreement is a key development milestone for accelerating global expansion of highly efficient and environmentally friendly fuel cell power plants.”

The License Agreement payments total $18 million and the amendment to prior agreements totals $8 million. The initial payment of $10 million was received on November 1, 2012. POSCO Energy will also pay a 3.0 percent royalty to FuelCell Energy for each power plant built and sold by POSCO Energy during the next 15 years. This royalty is expected to develop into a consistent and growing revenue stream as the Asian fuel cell market expands. The license agreement may be extended for two additional terms of five years each by mutual agreement.

DFC power plants excel at solving energy, environmental and business problems by providing ultra clean, efficient and reliable distributed power generation solutions. Direct FuelCells combine a fuel such as natural gas or renewable biogas with oxygen from the ambient air to efficiently produce ultra-clean electricity and usable high quality heat through an electrochemical process. DFC power plants emit virtually no pollutants due to the absence of combustion. Avoiding the emission of nitrogen oxide (NOx), sulfur dioxide (SOx) and particulate matter supports clean air regulations and benefits public health. The high efficiency of the fuel cell power generation process reduces fuel costs and carbon emissions, and producing both electricity and heat from the same unit of fuel further supports favorable economics while also promoting sustainability.

POSCO Energy is a wholly owned subsidiary of POSCO, a leading global steel producer headquartered in Pohang, South Korea. With annual revenues of approximately $1.8 billion in 2011, POSCO Energy is the largest independent power producer in South Korea with power generation assets that provide power to POSCO and to the electric grid. POSCO Energy also develops and sells new and renewable power generation facilities and owns power generation assets in Southeast Asian countries including Indonesia and Vietnam as well as a solar park in Nevada, USA. The parent, POSCO, is publicly held, trading on the Korean Stock Exchange under the symbol 005490 and on the New York Stock Exchange under symbol PKX.

About FuelCell Energy

Direct FuelCell® power plants are generating ultra-clean, efficient and reliable power at more than 50 locations worldwide.  With approximately 300 megawatts of power generation capacity installed or in backlog, FuelCell Energy is a global leader in providing ultra-clean baseload distributed generation to utilities, industrial operations, universities, municipal water treatment facilities, government installations and other customers around the world.  The Company’s power plants have generated more than one billion kilowatt hours of ultra-clean power using a variety of fuels including renewable biogas from wastewater treatment and food processing, as well as clean natural gas.For more information please visit our website at www.fuelcellenergy.com. See us on YouTube at www.youtube.com/user/FuelCellEnergyInc?feature=watch.

This news release contains forward-looking statements, including statements regarding the Company’s plans and expectations regarding the continuing development, commercialization and financing of its fuel cell technology and business plans. All forward-looking statements are subject to risks and uncertainties that could cause actual results

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to differ materially from those projected. Factors that could cause such a difference include, without limitation, whether the Company is able to reach definitive agreements on the terms contemplated in the memorandums of agreement with POSCO Energy, general risks associated with product development, manufacturing, changes in the regulatory environment, customer strategies, potential volatility of energy prices, rapid technological change, competition, and the Company’s ability to achieve its sales plans and cost reduction targets, as well as other risks set forth in the Company’s filings with the Securities and Exchange Commission. The forward-looking statements contained herein speak only as of the date of this press release. The Company expressly disclaims any obligation or undertaking to release publicly any updates or revisions to any such statement to reflect any change in the Company’s expectations or any change in events, conditions or circumstances on which any such statement is based.

Direct FuelCell, DFC, DFC/T, DFC-H2 and FuelCell Energy, Inc. are all registered trademarks of FuelCell Energy, Inc. DFC-ERG is a registered trademark jointly owned by Enbridge, Inc. and FuelCell Energy, Inc.

Contact:  
FuelCell Energy, Inc.
Kurt Goddard, Vice President Investor Relations 203-830-7494 ir@fce.com

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