LEAK-OUT AGREEMENT


 


April 27, 2017


 


This agreement (the
“Leak-Out Agreement”) is being delivered to you in connection with an understanding by and among FuelCell Energy,
Inc., a Delaware corporation (the “Company”), and the person or persons named on the signature pages hereto
(collectively, the “Holder”).


 


Reference is hereby
made to (a) the Preliminary Prospectus Supplement, dated April 27, 2017, of the Company relating to the sale by the Company of
(i) shares of its Common Stock, par value $0.0001 per share (the “Shares”), (ii) Series C Warrants to purchase
Common Stock (the “Series C Warrants”) and (iii) Series D Warrants to purchase Common Stock (the “Series
D Warrants” and, together with the Series C Warrants, the “Warrants”), and (b) the Company’s
registration statement on Form S-3 (File No. 333-215530) (the “Registration Statement”). The Shares and the
Warrants are hereinafter referred to as the “Securities”.


 


The Holder agrees solely
with the Company that from the date hereof (the “Effective Date”) and ending on May 28, 2017 (such period, the
“Restricted Period”), neither the Holder, nor any Affiliate of such Holder which (x) purchased any of the Securities,
(y) has or shares discretion relating to such Holder’s investments or trading or information concerning such Holder’s
investments, including in respect of the Securities, or (z) is subject to such Holder’s review or input concerning such Affiliate’s
investments or trading (together, the “Holder’s Trading Affiliates”), collectively, shall sell, dispose
of or otherwise transfer, directly or indirectly, (including, without limitation, any sales, short sales, swaps or any derivative
transactions that would be equivalent to any sales or short positions) on any day on which the Nasdaq Global Market is open for
trading (a “Trading Day”) during the Restricted Period (any such date, a “Date of Determination”),
Shares or the shares of the Company’s Common Stock underlying any of the Warrants (the “Warrant Shares”),
in an amount more than four percent (4%) of the trading volume of Common Stock as reported by Bloomberg, LP for the applicable
Date of Determination (the “Leak-Out Percentage”); provided, that the foregoing restrictions shall not
apply to any sales by the Holder or any of the Holder’s Trading Affiliates at a price greater than $1.61 at a time when the
offer price of the Common Stock as reported by Bloomberg L.P. during regular market hours or after-market hours, as applicable,
is greater than $1.60 (in each case, as adjusted for stock splits, stock dividends, stock combinations, recapitalizations or other
similar events occurring after the date hereof); provided, further, any shares of Common Stock not purchased pursuant to the Prospectus
Supplement (whether purchased before or after the offering) shall not be subject to this Leak-Out Agreement.


 


Notwithstanding anything
herein to the contrary, during the Restricted Period, the Holder may, directly or indirectly, sell or transfer all, or any part,
of the Shares or the Warrant Shares (the “Restricted Securities”) to any Person (an “Assignee”)
in a transaction which does not need to be reported on the Nasdaq consolidated tape, without complying with (or otherwise be limited
by) the restrictions set forth in this Leak-Out Agreement; provided, that as a condition to any such sale or transfer an
authorized signatory of the Company and such Assignee duly execute and deliver a leak-out agreement in the form of this Leak-Out
Agreement (an “Assignee Agreement”, and each such transfer a “Permitted Transfer”), provided
further that the Leak-Out Percentage as to such Assignee and the Leak-Out Percentage of the assignor shall be proportionally
adjusted based on the original Leak-Out Percentage of the Holder.


 






     


    


    

 


Any notices, consents,
waivers or other communications required or permitted to be given under the terms of this Leak-Out Agreement must be in writing
and shall be sent by mail, facsimile transmission or email to: (a) FuelCell Energy, Inc., 3 Great Pasture Road, Danbury, CT 06813,
Attention: Henry Sire, Esq., Corporate Legal, Fax: (203) 825-6069; with copies to (i) Patterson Belknap Webb & Tyler LLP, 1133
Avenue of the Americas, New York, NY 10036, Attention: Peter Schaeffer, Esq., Fax: (212) 336-1244, and (ii) Robinson & Cole
LLP, 666 Third Avenue, New York, NY 10017, Attention: Richard A. Krantz, Fax: (212) 451-2999 or (b) the Holder at the address set
forth below its signature below.


 


This Leak-Out Agreement
constitutes the entire agreement among the parties hereto with respect to the subject matter hereof and supersedes all prior negotiations,
letters and understandings relating to the subject matter hereof and are fully binding on the parties hereto.


 


This Leak-Out Agreement
may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument. This Leak-Out Agreement may be executed and accepted by facsimile or
PDF signature and any such signature shall be of the same force and effect as an original signature.


 


The terms of this Leak-Out
Agreement shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and
assigns and shall not be for the benefit of, or be enforceable by, any other person or entity.


 


This Leak-Out Agreement
may not be amended or modified except in writing signed by each of the parties hereto.


 


This Agreement shall
be governed by and construed in accordance with the laws of the State of New York, including without limitation Section 5-1401
of the New York General Obligations Law. Each party consents to the jurisdiction of the courts of the State of New York located
in the City and County of New York or in the United States District Court for the Southern District of New York, and the parties
each hereby consent to personal service with respect thereto.


 


Each party hereto acknowledges
that, in view of the uniqueness of the transactions contemplated by this Leak-Out Agreement, the Company may not have an adequate
remedy at law for money damages in the event that this Leak-Out Agreement has not been performed in accordance with its terms,
and therefore agrees that the Company shall be entitled to seek specific enforcement of the terms hereof in addition to any other
remedy it may seek, at law or in equity.


 






     


    


    

 


Without implication
that the contrary would otherwise be true, the Company acknowledges and agrees that this Leak-Out Agreement is a separate agreement
that is solely between the Company and the undersigned and not between or among any other person or entity.


 


[The obligations of
the Holder under this Leak-Out Agreement are several and not joint with the obligations of any other holder of any of the Securities
(each, an “Other Holder”). Nothing contained in this Leak-Out Agreement, and no action taken by the Holder pursuant
hereto, shall be deemed to constitute the Holder and any Other Holders as a partnership, an association, a joint venture or any
other kind of entity, or create a presumption that the Holder and any Other Holders are in any way acting in concert or as a group
with respect to such obligations or the transactions contemplated by this Leak-Out Agreement and the Company acknowledges that
the Holder and the Other Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated
by this Leak-Out Agreement or any other agreement. The Holder shall be entitled to independently protect and enforce its rights,
including, without limitation, the rights arising out of this Leak-Out Agreement, and it shall not be necessary for any Other Holder
o be joined as an additional party in any proceeding for such purpose.


 


The Company hereby represents and warrants
as of the date hereof and covenants and agrees from and after the date hereof that none of the terms offered to any Other Holder
with respect to any restrictions on the sale of Securities substantially in the form of this Leak-Out Agreement (or any amendment,
modification, waiver or release thereof) (each a “Leak Out Document”), is or will be more favorable to such
Other Holder than those of the Holder and this Agreement.]


 


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left blank]


 






     


    


    

 


[Signature Page to FCEL Leak-Out Agreement]


 


IN WITNESS WHEREOF, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto have caused this Agreement to be
duly executed by their respective authorized signatories as of the date first indicated above.


 





	 	Sincerely,


 


FuelCell
Energy, Inc.


 


By: _____________________


Name:


Title:





  


“HOLDER”


 


_____________________________ 


 


By: ____________________


Name:


Title:


Address for Notice: