FUELCELL ENERGY, INC. (NASDAQ:FCEL) Files An 8-K Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

ME Staff 8-k
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FUELCELL ENERGY, INC. (NASDAQ:FCEL) Files An 8-K Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
On December 15, 2016, the Board of Directors (the Board) of
FuelCell Energy, Inc. (the Company) amended and restated the
Companys Amended and Restated By-laws (the Amended and Restated
By-laws), effective as of December 15, 2016. The Amended and
Restated By-laws, among other things:
amend Section 1.11 to provide a thirty (30) day window for
a stockholder to deliver timely notice of business to be
brought before an annual meeting if such annual meeting is
called for a date that is more than thirty (30) days before
or more than sixty (60) days after the anniversary date of
the preceding years annual meeting. The Companys previous
by-laws provided that timely notice of such business must
be brought not later than the ninetieth (90th)
day prior to such annual meeting, but did not provide for a
thirty (30) day window for such notices;
add new Section 2.5 to implement a majority voting standard
in uncontested elections of directors, such that a nominee
for election as a director in an uncontested election will
be elected to the Board if the votes cast for such nominees
election exceed the votes cast against such nominees
election (with abstentions and broker non-votes not counted
as for or against such nominees election). A plurality
voting standard, which previously applied to all director
elections, remains applicable to any meeting of
stockholders in which the number of nominees for election
as directors exceeds the number of directors to be elected
at such meeting.
New Section 2.5 also implements a director resignation policy to
which any director that fails to receive the required majority
vote in an uncontested election will promptly tender his or her
resignation to the Board for its consideration. Within 90 days
following certification of the stockholder vote, the Board will
publicly disclose its decision regarding whether to accept the
resignation or take other action;
amend Section 2.18 by adding new subsection (d) to describe
the duties of the Nominating and Corporate Governance
Committee. The Nominating and Corporate Governance
Committee is and has been a chartered committee of
independent directors in accordance with NASDAQ rules,
charged with (i) identifying individuals qualified to
become members of the Board, (ii) recommending the persons
to be nominated by the Board for election as directors at
the annual meeting of stockholders, (iii) monitoring and
overseeing the Companys compliance with sound principles of
corporate governance, consistent with applicable law and
best practices, and (iv) developing and recommending to the
Board for adoption corporate governance principles
applicable to the Company. This new subsection to the
Amended and Restated By-laws does not amend the Nominating
and Corporate Governance Committees charter or alter any of
its duties; it merely provides a description of the
Nominating and Corporate Governance Committees duties not
previously described in the Companys by-laws;
amend Section 7.7 to provide that the present and former
directors and officers of the Company have the right to
receive an advancement of all documented and reasonable
expenses incurred by or on behalf of such person in
connection with a legal proceeding, subject to receipt of
an undertaking to repay any such advanced amounts if it is
ultimately determined that the director or officer is not
entitled to indemnification against such expenses. The
Companys previous by-laws permitted the Company to make
such advances, but advancement was not required; and
add new Section 8.9 to provide for an exclusive forum
selection provision, which specifies that unless the
Company consents in writing to an alternative forum, a
state court located within the State of Delaware (or, if no
state court located within the State of Delaware has
jurisdiction, the federal district court for the District
of Delaware) will be the sole and exclusive forum for (i)
any derivative action or proceeding brought on behalf of
the Company; (ii) any action asserting a claim of breach of
a fiduciary duty owed by any director or officer or other
employee of the Company to the Company or the Companys
stockholders; (iii) any action asserting a claim against
the Company or any director or officer or other employee of
the Company arising to any provision of the Delaware
General Corporation Law or the Companys Certificate of
Incorporation or the Amended and Restated By-laws (as
either may be amended from time to time), or (iv) any
action asserting a claim against the Company or any
director or other officer or other employee of the Company
governed by the internal affairs doctrine.
The Amended and Restated By-laws also include a number of
ministerial, clarifying and conforming changes.
The foregoing description of the Amended and Restated By-laws
does not purport to be complete and is qualified in its
entirety by reference to the full text of the Amended and
Restated By-laws, a copy of which is filed as Exhibit 3.2 to
this Current Report on Form 8-K and incorporated herein by
reference.
Item 9.01
Financial Statements and Exhibits.

(d)
Exhibits.

Exhibit
No.
Description
3.2
Amended and Restated By-laws of FuelCell Energy, Inc.


About FUELCELL ENERGY, INC. (NASDAQ:FCEL)

FuelCell Energy, Inc. is an integrated fuel cell company. The Company designs, manufactures, sells, installs, operates and services stationary fuel cell power plants for distributed power generation. The Company’s segment is fuel cell power plant production and research. The Company’s power plants provide on-site power and utility grid support. The Company’s plants operate in approximately 50 locations on approximately three continents and generate approximately four billion kilowatt hours (kWh) of electricity. The Company’s fuel cell products, Direct FuelCell (DFC) power plants offer power generation for customers, including approximately 2.8 megawatts DFC3000, approximately 1.4 megawatts DFC1500 and approximately 300 kilowatts DFC300 plus derivations of the DFC product for specific applications. The Company offers project development; engineering procurement and construction (EPC) services operations and maintenance, and project finance.

FUELCELL ENERGY, INC. (NASDAQ:FCEL) Recent Trading Information

FUELCELL ENERGY, INC. (NASDAQ:FCEL) closed its last trading session up +0.10 at 2.20 with 801,235 shares trading hands.