exv4w1
Exhibit 4.1
2011 EXECUTIVE PERFORMANCE RSU AWARD AGREEMENT
This Executive Performance RSU Award Agreement (the Agreement) is hereby entered effective
as of _________________, 2011 (the Effective Date), by and between Fuel Tech, Inc. (the
Company or Fuel Tech or FTI), and _____________ (the Participant). Any term
capitalized but not defined in this Agreement will have the meaning set forth in the Fuel Tech,
Inc. Incentive Plan, as amended (the Plan).
1. Purpose. The purpose of this Agreement is, among other things, to align the
Participants interests with the interests of the Company and its stockholders in the long-term
growth of the Company and to reward the Participant for his continued employment and service to the
Company in the future and his compliance with the Companys policies (including, without
limitation, the Companys Code of Business Ethics and Conduct), to protect the Companys interests
in non-public, confidential and/or proprietary information, products, trade secrets, customer
relationships, and other legitimate business interests. In view of these purposes, this Agreement,
issued pursuant to Section 6.6 of the Plan, provides the Participant the opportunity to receive an
executive performance RSU award in the manner and on the terms, conditions and amounts set forth in
this Agreement (Executive Performance RSU).
2. Executive Performance RSU Award. For purposes of the Executive Performance RSU Award
calculations set forth below in this Agreement, the Companys Compensation and Nominating Committee
(the Committee), in the exercise of its business judgment under the Plan, approved a total target
number of executive performance RSUs made up of three target RSU amount components. The three
components of the Executive Performance RSU Award (each of them an Award under the Plan) are:
Look-Back RSUs, Revenue Growth RSUs, and TSR Performance RSUs (as each of those terms are defined
below).
3. Look-Back RSUs. For purposes of this Agreement, the Committee approved a Target
Look-Back RSU Amount of _____________ RSUs. No later than ninety (90) days after the end of the
Performance Period, the Committee, in its sole discretion, shall award the Participant a number of
RSUs of between zero and the Target Look-Back RSU Amount (Look-Back RSUs), on the Determination
Date (as defined below).
(a) Performance Assessment. The Committee, in its business judgment, may
approve the Company awarding none, some or all of the Target Look-Back RSU Amount to the
Participant based on the Committees subjective, qualitative assessment of the Participants
overall performance during the Performance Period. The determination and approval by the
Committee of what portion, if any, of the Target Look-Back RSU Amount shall be awarded to
the Participant may include a variety of factors considered by the Committee in its sole
discretion, including one or more of the equity award determination factors listed in
Exhibit A to this Agreement.
(b) Determination Date. All Look-Back RSU Awards will be made on the
Determination Date, subject to the terms and conditions of the Plan and this Agreement,
including the vesting schedule set forth in Section 3(d) below, provided that the
Participants status as a Participant under this Agreement has not terminated before the
Determination Date.
(c) Employment Termination. If the Participants status as a Participant under
this Agreement (e.g., termination of employment with the Company) terminates for any reason
before the Determination Date, other than death or becoming Totally Disabled, no Look-Back
RSUs will be awarded to the Participant, except as provided in Section 3(e) below. If the
Participants status as a Participant under this Agreement terminates before the
Determination Date due to death or becoming Totally Disabled, the Committee shall determine,
in its sole discretion, whether to award none, some or all of the Target Look-Back RSUs to
the Participant. If the Participants status as a Participant under this Agreement
terminates on or after the Determination Date, but before the Look-Back RSUs have fully
vested under Section 3(d) or (e) below:
(i) If the Participants employment is terminated by the Company for Cause (as
defined below), the Participant will forfeit all Look-Back RSUs, including any
Look-Back RSUs that have vested under Section 3(d);
(ii) If the Participant terminates employment due to death or becoming Totally
Disabled, the Participant will vest in any Look-Back RSUs that have not vested under
Section 3(d) or (e), and on a date within thirty (30) days of the employment
termination, determined by the Committee or Board, as applicable, the Company will
distribute Shares to the Participant equal to the full number of Look-Back RSUs that
were awarded to the Participant, regardless of whether or not the Participant had
elected to defer under Section 3(f) below;
(iii) If the Participants employment is terminated other than (A) due to death
or becoming Totally Disabled, or (B) by the Company for Cause, the Participant will
forfeit any Look-Back RSUs that have not vested under Section 3(d) or (e), and on a
date within thirty (30) days of the employment termination, determined by the
Committee or Board, as applicable, the Company will distribute Shares to the
Participant equal to the number of Look-Back RSUs that already have vested,
regardless of whether or not the Participant had elected to defer under Section 3(f)
below.
(d) Installment Vesting. Any Look-Back RSUs awarded on the Determination Date
shall vest in three installments, as follows: (i) one-third of the total Look-Back RSUs
awarded shall vest thirteen (13) months after the Determination Date, (ii) one-third shall
vest on the second anniversary of the Determination Date, and (iii) the remaining one-third
shall vest on the third anniversary of the Determination Date, in each case, provided that
the Participants status as a Participant under this Agreement has not terminated before the
applicable vesting date.
(e) Change in Control. In the event of a Change of Control before the
Determination Date for Look-Back RSUs, the Committee shall determine, in its sole
discretion, whether to award none, some or all the Target Look-Back RSUs to the Participant
under this Agreement and whether to accelerate the vesting of those Look-Back RSUs it so
awards. In the event of a Change of Control on or after the Determination Date for
Look-Back RSUs, but before the Look-Back RSUs awarded to the Participant, if any, have fully
vested under Sections 3(c) or (d), if the Participants status as a Participant under this
Agreement has not terminated before the effective date
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of the Change in Control, the Look-Back RSUs awarded to the Participant will fully vest
on a date before the effective date of the Change in Control, determined by the Committee or
Board, as applicable, unless (i) the Company is the surviving entity and any adjustments
necessary to preserve the value of the Participants outstanding Look-Back RSUs have been
made, or (ii) the Companys successor at the time of the Change in Control irrevocably
assumes the Companys obligations under the Plan and this Agreement or replaces the
Participants outstanding Look-Back RSUs with an award of equal or greater value and having
terms and conditions no less favorable to the Participant than those applicable to the
Participants Look-Back RSUs immediately prior to the Change in Control; provided,
that, if the Participants status as a Participant under this Agreement has not
terminated before the effective date of the Change in Control and the Participants
Look-Back RSUs do not become fully vested upon the Change of Control because of the
foregoing provisions of this paragraph (e), the Participants Look-Back RSUs nonetheless
will become fully vested if, within two years after the effective date of the Change of
Control, the Company or its successor terminates the Participants employment other than for
Cause or the Participant terminates his employment for Good Reason (as defined below). If
the Participant terminates employment following a Change in Control due to death or becoming
Totally Disabled, the Participant will vest in any Look-Back RSUs that have not previously
vested. On a date determined by the Committee or Board, as applicable, within thirty (30)
days of the Change of Control, the Company will distribute Shares to the Participant equal
to the number of any Look-Back RSUs that are or have become vested, regardless of whether or
not the Participant had elected to defer under Section 3(f) below.
(f) Deferral of Share Distribution. The Participant may elect to defer the
receipt of Shares beyond the vesting date of the underlying Look-Back RSUs in Section 3(d)
above, by written election on the Companys then-current Deferral Election Form, filed no
earlier than the Determination Date and no later than thirty (30) days after the
Determination Date for the Look-Back RSUs. Any deferral period must be expressed as a
number of whole years, not less than five (5) or more than ten (10), beginning on the
Determination Date. Any such deferral election shall apply to the receipt of all Shares
underlying the Look-Back RSUs under this Agreement; for example, a deferral period of seven
(7) years would result in the Participant receiving all Shares underlying the vested
Look-Back RSUs seven (7) years from the Determination Date regardless of the fact that the
Look-Back RSUs under this Agreement may have vested at differing times. If a Participant
elects a deferral period but thereafter the Participants status as a Participant terminates
after the Look-Back RSUs vest but before the elected deferral period expires, then, subject
to the forfeiture provisions of Sections 7 and 10, distribution of the Participants Shares
underlying the Look-Back RSUs will occur within thirty (30) days after the date the
Participants status as such terminates. If a Participant elects a deferral period but
thereafter a Change in Control occurs after the Look-Back RSUs vest but before the elected
deferral period expires, then, subject to the forfeiture provisions of Sections 7 and 10,
distribution of the Participants Shares underlying the Look-Back RSUs will occur on a date
to be determined by the Committee or the Board, as applicable, immediately prior to the
effective time of the Change in Control.
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4. Revenue Growth RSUs. For purposes of this Agreement, the Committee approved a
Target Revenue Growth RSU Amount of _____________ RSUs. After the completion of the Performance
Period the Committee shall award the Participant a number of RSUs of between zero and up to 150% of
the Target Revenue Growth RSU Amount (Revenue Growth RSUs), on the Determination Date.
(a) Revenue Growth Measurement. During the Performance Period, the Companys
Revenue Growth will be measured against the Revenue Growth of the Peer Group Companies. As
soon as practicable after the Peer Group Companies have reported their Revenue Growth for
the Performance Period, the Committee shall compare the Companys Revenue Growth for the
Performance Period with that of the Peer Group Companies. The Peer Group Companies will be
ranked by Revenue Growth and then divided into four quartiles. The Committee will evaluate
the Companys Revenue Growth performance in light of those rankings and shall approve the
issuance to the Participant a number of Revenue Growth RSUs determined as follows:
(i) if the Companys Revenue Growth performance places it in the fourth
(lowest) quartile of the Peer Group Companies, no RSUs will be awarded;
(ii) if the Companys Revenue Growth performance places it in the third
quartile of the Peer Group Companies, then a number of RSUs equal to 50% of the
Target Revenue Growth RSU Amount will be awarded;
(iii) if the Companys Revenue Growth performance places it in the second
quartile of the Peer Group Companies, then a number of RSUs equal to 100% of the
Target Revenue Growth RSU Amount will be awarded; and
(iv) if the Companys Revenue Growth performance places it in the first
(highest) quartile of the Peer Group Companies, then a number of RSUs equal to 150%
of the Target Revenue Growth RSU Amount will be awarded.
(b) Determination Date. Any Revenue Growth RSU awards made as a result of the
Companys Revenue Growth performance will be made on the Determination Date, subject to the
terms and conditions of the Plan and this Agreement, including the vesting schedule set
forth in Section 4(d) below, provided that the Participants status as a Participant under
this Agreement has not terminated before the Determination Date.
(c) Employment Termination. If the Participants status as a Participant under
this Agreement terminates for any reason before the Determination Date, other than the
Participants (i) termination by the Company without Cause, (ii) death, or (iii) becoming
Totally Disabled, no Revenue Growth RSUs will be awarded to the Participant, except as
provided in Section 4(e) below. If, before the Determination Date, the Participants status
as a Participant under this Agreement is terminated by the Company without Cause, or due to
death or becoming Totally Disabled, the Participant will be awarded a number of vested
Revenue Growth RSUs, determined as follows: (A) the Company shall determine the number of
Revenue Growth RSUs that would have been awarded to the Participant as a percentage of the
Target Revenue Growth RSU Amount, based on the Companys Revenue Growth as of his employment
termination measured against the Revenue
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Growth of the Peer Group Companies on that date, according to the metrics of Section
4(a) above, then (B) the Company shall multiply that number by a fraction, the numerator of
which is the number of months of employment during the Performance Period the Participant
had completed as of the date of his employment termination and the denominator of which is
thirty-six (36). If the Participants status as a Participant under this Agreement
terminates on or after the Determination Date, but before the Revenue Growth RSUs have fully
vested under Section 4(d) or (e) below:
(i) If the Participants employment is terminated by the Company for Cause, the
Participant will forfeit all Revenue Growth RSUs, including any Revenue Growth RSUs
that have vested under Section 4(d);
(ii) If the Participant terminates employment due to death or becoming Totally
Disabled, the Participant will vest in any Revenue Growth RSUs that have not vested
under Section 4(d) or (e), and on a date within thirty (30) days of the employment
termination, determined by the Committee or Board, as applicable, the Company will
distribute Shares to the Participant equal to the full number of Revenue Growth RSUs
that were awarded to the Participant, regardless of whether or not the Participant
had elected to defer under Section 4(f) below;
(iii) If the Participants employment is terminated other than (A) due to death
or becoming Totally Disabled, or (B) by the Company for Cause, the Participant will
forfeit any Revenue Growth RSUs that have not vested under Section 4(d) or (e), and
on a date within thirty (30) days of the employment termination, determined by the
Committee or Board, as applicable, the Company will distribute Shares to the
Participant equal to the number of Revenue Growth RSUs that already have vested,
regardless of whether or not the Participant had elected to defer under Section 4(f)
below.
(d) Installment Vesting. Any Revenue Growth RSUs awarded on the Determination
Date shall vest in two installments, as follows: (i) two-thirds of the total Revenue Growth
RSUs awarded shall immediately vest on the Determination Date, and (ii) the remaining
one-third shall vest on the first anniversary of the Determination Date, in each case
provided that the Participants status as a Participant under this Agreement has not
terminated before the applicable vesting date.
(e) Change in Control. In the event of a Change of Control before the
Determination Date for Revenue Growth RSUs, the Committee shall determine, in its sole
discretion, whether to award none, some or all of the Target Revenue Growth RSU Amount to
the Participant under this Agreement and whether to accelerate the vesting of those Revenue
Growth RSUs it so awards; provided that, in no event shall the Participant be awarded a
number of vested Revenue Growth RSUs that is less than the number determined as follows:
(A) the Company shall determine the number of Revenue Growth RSUs that would have been
awarded to the Participant as a percentage of the Target Revenue Growth RSU Amount, based on
the Companys Revenue Growth as of the date of the Change in Control measured against the
Revenue Growth of the Peer Group Companies on that date, according to the metrics of Section
4(a) above, then (B) the Company shall multiply that number by a fraction, the numerator of
which is the number
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of months of employment during the Performance Period the Participant had completed as
of the date of the Change in Control and the denominator of which is thirty-six (36). In
the event of a Change of Control on or after the Determination Date, but before the Revenue
Growth RSUs awarded to the Participant, if any, have fully vested under Sections 4(c) or
(d), if the Participants status as a Participant under this Agreement has not terminated
before the effective date of the Change in Control, the Revenue Growth RSUs awarded to the
Participant will fully vest on a date before the effective date of the Change in Control,
determined by the Committee or Board, as applicable, unless (i) the Company is the surviving
entity and any adjustments necessary to preserve the value of the Participants outstanding
Revenue Growth RSUs have been made, or (ii) the Companys successor at the time of the
Change in Control irrevocably assumes the Companys obligations under the Plan and this
Agreement or replaces the Participants outstanding Revenue Growth RSUs with an award of
equal or greater value and having terms and conditions no less favorable to the Participant
than those applicable to the Participants Revenue Growth RSUs immediately prior to the
Change in Control; provided, that, if the Participants status as a
Participant under this Agreement has not terminated before the effective date of the Change
in Control and the Participants Revenue Growth RSUs do not become fully vested upon the
Change of Control because of the foregoing provisions of this paragraph (e), the
Participants Revenue Growth RSUs nonetheless will become fully vested if, within two years
after the effective date of the Change of Control, the Company or its successor terminates
the Participants employment other than for Cause or the Participant terminates his
employment for Good Reason (as defined below). If the Participant terminates employment
following a Change in Control due to death or becoming Totally Disabled, the Participant
will vest in any Revenue Growth RSUs that have not previously vested.
(f) Deferral of Share Distribution. The Participant may elect to defer the
receipt of Shares beyond the vesting date of the underlying Revenue Growth RSUs in Section
4(d) above, by written election on the Companys then-current Deferral Election Form, filed
no earlier than the Determination Date and no later than thirty (30) days after the
Determination Date for the Revenue Growth RSUs. Any deferral period must be expressed as a
number of whole years, not less than five (5) or more than ten (10), beginning on the
Determination Date. Any such deferral election shall apply to the receipt of all Shares
underlying the Revenue Growth RSUs under this Agreement; for example, a deferral period of
seven (7) years would result in the Participant receiving all Shares underlying the vested
Revenue Growth RSUs seven (7) years from the Determination Date regardless of the fact that
the Revenue Growth RSUs under this Agreement may have vested at differing times. If a
Participant elects a deferral period but thereafter the Participants status as a
Participant terminates after the Revenue Growth RSUs vest but before the elected deferral
period expires, then, subject to the forfeiture provisions of Sections 7 and 10,
distribution of the Participants Shares underlying the Revenue Growth RSUs will occur
within thirty (30) days after the date the Participants status as such terminates. If a
Participant elects a deferral period but thereafter a Change in Control occurs after the
Revenue Growth RSUs vest but before the elected deferral period expires, then, subject to
the forfeiture provisions of Sections 7 and 10, distribution of the Participants Shares
underlying the Revenue Growth RSUs will occur on a date to
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be determined by the Committee or the Board, as applicable, immediately prior to the
effective time of the Change in Control.
5. TSR Performance RSUs. For purposes of this Agreement, the Committee approved a
Target TSR Performance RSU Amount of _____________ RSUs. After the completion of the Performance
Period the Committee shall award the Participant a number of RSUs of between zero and up to 150% of
the Target TSR Performance RSU Amount (TSR Performance RSUs), on the Determination Date (as
defined below).
(a) TSR Performance Measurement. During the Performance Period, the Companys
TSR performance will be measured against the TSR performance of the Peer Group Companies.
As soon as practicable after the Peer Group Companies have reported their TSR performance
for the Performance Period, the Committee shall compare the Companys TSR performance for
the Performance Period with that of the Peer Group Companies. The Peer Group Companies will
be ranked by TSR performance, and then divided into four quartiles. The Committee will
evaluate the Companys TSR performance in light of those rankings and shall approve the
issuance to the Participant a number of TSR performance RSUs determined as follows:
(i) if the Companys TSR performance places it in the fourth (lowest) quartile
of the Peer Group Companies, no RSUs will be awarded;
(ii) if the Companys TSR performance places it in the third quartile of the
Peer Group Companies, then a number of RSUs equal to 50% of the Target TSR
Performance RSU Amount will be awarded;
(iii) if the Companys TSR performance places it in the second quartile of the
Peer Group Companies, then a number of RSUs equal to 100% of the Target TSR
Performance RSU Amount will be awarded; and
(iv) if the Companys TSR performance places it in the first (highest) quartile
of the Peer Group Companies, then a number of RSUs equal to 150% of the Target TSR
Performance RSU Amount will be awarded.
(b) Determination Date. Any TSR Performance RSU awards made as a result of the
Companys TSR performance will be made on the Determination Date, subject to the terms and
conditions of the Plan and this Agreement, including the vesting schedule set forth in
Section 5(d) below, provided that the Participants status as a Participant under this
Agreement has not terminated before the Determination Date.
(c) Employment Termination. If the Participants status as a Participant under
this Agreement terminates for any reason before the Determination Date, other than the
Participants (i) termination by the Company without Cause, (ii) death, or (iii) becoming
Totally Disabled, no TSR Performance RSUs will be awarded to the Participant, except as
provided in Section 5(e) below. If, before the Determination Date, the Participants status
as a Participant under this Agreement is terminated by the Company without Cause, or due to
death or becoming Totally Disabled, the Participant will be awarded a number of vested TSR
Performance RSUs, determined as follows: (A) the Company shall determine the number of RSUs
that would have been awarded to the Participant as a
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percentage of the Target TSR Performance RSU Amount, based on the Companys TSR
Performance as of his employment termination measured against the TSR Performance of the
Peer Group Companies on that date, according to the metrics of Section 5(a) above, then (B)
the Company shall multiply that number by a fraction, the numerator of which is the number
of months of employment during the Performance Period the Participant had completed as of
the date of his employment termination and the denominator of which is thirty-six (36). If
the Participants status as a Participant under this Agreement terminates on or after the
Determination Date, but before the TSR Performance RSUs have fully vested under Section 5(d)
or (e) below:
(i) If the Participants employment is terminated by the Company for Cause, the
Participant will forfeit all TSR Performance RSUs, including any TSR Performance
RSUs that have vested under Section 5(d);
(ii) If the Participant terminates employment due to death or becoming Totally
Disabled, the Participant will vest in any TSR Performance RSUs that have not vested
under Section 5(d) or (e), and on a date within thirty (30) days of the employment
termination, determined by the Committee or Board, as applicable, the Company will
distribute Shares to the Participant equal to the full number of TSR Performance
RSUs that were awarded to the Participant, regardless of whether or not the
Participant had elected to defer under Section 5(f) below;
(iii) If the Participants employment is terminated other than (A) due to death
or becoming Totally Disabled, or (B) by the Company for Cause, the Participant will
forfeit any TSR Performance RSUs that have not vested under Section 5(d) or (e), and
on a date within thirty (30) days of the employment termination, determined by the
Committee or Board, as applicable, the Company will distribute Shares to the
Participant equal to the number of TSR Performance RSUs that already have vested,
regardless of whether or not the Participant had elected to defer under Section 5(f)
below.
(d) Installment Vesting. Any TSR Performance RSUs awarded on the Determination
Date shall vest in two installments, as follows: (i) two-thirds of the total TSR
Performance RSUs awarded shall immediately vest on the Determination Date, and (ii) the
remaining one-third shall vest on the first anniversary of the Determination Date, in each
case, provided that the Participants status as a Participant under this Agreement has not
terminated before the applicable vesting date.
(e) Change in Control. In the event of a Change of Control before the
Determination Date for TSR Performance RSUs, the Committee shall determine, in its sole
discretion, whether to award none, some or all of the Target TSR Performance RSU Amount to
the Participant under this Agreement, and whether to accelerate the vesting of those TSR
Performance RSUs it so awards; provide that, in no event shall the Participant be awarded a
number of vested TSR Performance RSUs that is less than the number determined as follows:
(A) the Company shall determine the number of TSR Performance RSUs that would have been
awarded to the Participant as a percentage of the Target TSR Performance RSU Amount, based
on the Companys TSR Performance as
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of the date of the Change in Control measured against the TSR Performance of the Peer
Group Companies on that date, according to the metrics of Section 5(a) above, then (B) the
Company shall multiply that number by a fraction, the numerator of which is the number of
months of employment during the Performance Period the Participant had completed as of the
date of the Change in Control and the denominator of which is thirty-six (36). In the event
of a Change of Control on or after the Determination Date, but before the TSR Performance
RSUs awarded to the Participant, if any, have fully vested under Sections 5(c) or (d), if
the Participants status as a Participant under this Agreement has not terminated before the
effective date of the Change in Control, the TSR Performance RSUs awarded to the Participant
will fully vest on a date before the effective date of the Change in Control, determined by
the Committee or Board, as applicable, unless (i) the Company is the surviving entity and
any adjustments necessary to preserve the value of the Participants outstanding TSR
Performance RSUs have been made, or (ii) the Companys successor at the time of the Change
in Control irrevocably assumes the Companys obligations under the Plan and this Agreement
or replaces the Participants outstanding TSR Performance RSUs with an award of equal or
greater value and having terms and conditions no less favorable to the Participant than
those applicable to the Participants TSR Performance RSUs immediately prior to the Change
in Control; provided, that, if the Participants status as a Participant
under this Agreement has not terminated before the effective date of the Change in Control
and the Participants TSR Performance RSUs do not become fully vested upon the Change of
Control because of the foregoing provisions of this paragraph (e), the Participants TSR
Performance RSUs nonetheless will become fully vested if, within two years after the
effective date of the Change of Control, the Company or its successor terminates the
Participants employment other than for Cause or the Participant terminates his employment
for Good Reason. If the Participant terminates employment following a Change in Control due
to death or becoming Totally Disabled, the Participant will vest in any TSR Performance RSUs
that have not previously vested.
(f) Deferral of Share Distribution. The Participant may elect to defer the
receipt of Shares beyond the vesting date of the underlying TSR Performance RSUs in Section
5(d) above, by written election on the Companys then-current Deferral Election Form, filed
no earlier than the Determination Date and no later than thirty (30) days after the
Determination Date for the TSR Performance RSUs. Any deferral period must be expressed as a
number of whole years, not less than five (5) or more than ten (10), beginning on the
Determination Date. Any such deferral election shall apply to the receipt of all Shares
underlying the TSR Performance RSUs under this Agreement; for example, a deferral period of
seven (7) years would result in the Participant receiving all Shares underlying the vested
TSR Performance RSUs seven (7) years from the Determination Date regardless of the fact that
the TSR Performance RSUs under this Agreement may have vested at differing times. If a
Participant elects a deferral period but thereafter the Participants status as a
Participant terminates after the TSR Performance RSUs vest but before the elected deferral
period expires, then, subject to the forfeiture provisions of Sections 7 and 10,
distribution of the Participants Shares underlying the TSR Performance RSUs will occur
within thirty (30) days after the date the Participants status as such terminates. If a
Participant elects a deferral period but thereafter a Change in Control occurs after the TSR
Performance RSUs vest but before
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the elected deferral period expires, then, subject to the forfeiture provisions of
Sections 7 and 10, distribution of the Participants Shares underlying the TSR Performance
RSUs will occur on a date to be determined by the Committee or the Board, as applicable,
immediately prior to the effective time of the Change in Control.
6. Distribution of Shares. As soon as practicable after the Participants
Distribution Date, the Company may either (i) issue to the Participant or the Participants
personal representative a Share certificate, (ii) deposit Shares with an online broker or other
service provider contracted by the Company for such purpose, or (iii) handle such Shares according
to the terms of a Change in Control, subject to Sections 7 and 10 below, but each such issuance
subject to compliance to the satisfaction of the Committee with all requirements under applicable
laws or regulations in connection with such issuance, and with the requirements hereof and of the
Plan. Until Shares have been issued to the Participant under this Section, the Participant shall
not have any rights as a holder of the Shares underlying any component of this Executive
Performance RSU Award including but not limited to voting rights or dividends, if and when the
Company declares same.
7. Adjustment of Executive Performance RSU Award. In the event that the Company or
one or more of the Peer Group Companies is required to prepare an accounting restatement due to the
material noncompliance with any financial reporting requirement under the federal securities laws
the Committee, in good faith and subject to its sole discretion, may reduce or increase the number
of RSUs awarded to the Participant under this Agreement to reflect the number of RSUs that would
have been awarded to the Participant under the accounting restatement. At all times and regardless
of the date of adoption any RSU target amounts established, RSUs awarded and Shares distributed
under this Agreement shall be subject to any compensation recovery policy adopted by the Company to
comply with applicable law or to comport with good corporate governances practices as determined by
the Committee in its sole discretion, as such policy may be amended from time to time. The
Companys remedies and rights under this Section 7 shall be in addition to any other remedies or
rights that the Company shall have, and any penalties or restrictions that may apply, under state
or federal law, or any employment or other agreement.
8. Changes in Capital or Corporate Structure. In the event of any change in the
outstanding shares of common stock of the Company by reason of a recapitalization,
reclassification, reorganization, stock split, reverse stock split, combination of shares, stock
dividend or similar transaction the Committee or Board, as applicable, shall proportionately
adjust, in a manner deemed equitable by the Committee or Board, as applicable, in its sole
discretion, the number of RSUs held by the Participant under this Agreement, in accordance with the
Plan.
9. Nontransferability. A Participants rights under this Agreement, RSUs awarded
under this Agreement and any rights and privileges pertaining to either of them, may not be
transferred, assigned, pledged or hypothecated in any manner, by operation of law or otherwise,
other than by will or by the laws of descent and distribution, and shall not be subject to
execution, attachment or similar process.
10. Non-Competition and Non-Solicitation Restrictive Covenants. In order to protect
the Confidential Information (as defined below), customer relationships, and other legitimate
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business interests of the Company, during the Participants status as such under this
Agreement and for twelve (12) months following the termination of his or her status as a
Participant under this Agreement (e.g., termination of employment with the Company) the Participant
will not, directly or indirectly, as an employee, agent, member, director, partner, consultant or
contractor or in any other individual or representative capacity: (a) solicit any Protected
Individual (as defined below) for other employment or engagement, induce or attempt to induce any
Protected Individual to terminate his or her employment, hire or engage any Protected Individual,
or otherwise interfere or attempt to interfere in any way in the relationship between the Company
and such Protected Individual; or (b) solicit or provide competitive products or services to any
Customer (as defined below) or Prospective Customer (as defined below) or otherwise interfere or
attempt to interfere in any way in the relationship between the Company and any Customer or
Prospective Customer. Because the Companys business is global in scope, the Participant
understands and agrees that these restrictions apply worldwide.
The Participant agrees that in the event of a breach or threatened breach of any of the
covenants contained in this Section 10, in addition to any other penalties or restrictions that may
apply under any employment agreement, state law, or otherwise the Participant shall forfeit, upon
written notice to such effect from the Company: (i) any rights to receive an Executive Performance
RSU Award under this Agreement, (ii) any and all RSUs awarded to him or her under the Plan and this
Agreement, including vested RSUs or Shares; (iii) any Shares acquired under this Award, and (iv)
any profit the Participant has realized on the vesting or sale of any Shares acquired under this
Award, which the Participant may be required to repay to the Company). The forfeiture provisions
of this Section 10 shall continue to apply, in accordance with their terms, after the provisions of
any employment or other agreement between the Company and the Participant have lapsed. The
Participant consents and agrees that if the Participant violates or threatens to violate any
provisions of this Section 10, the Company or its successors in interest shall be entitled, in
addition to any other remedies that they may have, including money damages, to an injunction to be
issued by a court of competent jurisdiction restraining the Participant from committing or
continuing any violation of this Section 10. In the event that the Participant is found to have
breached any provision set forth in this Section 10 or elsewhere in this Agreement, the time period
provided for in that provision shall be deemed tolled (i.e., it will not begin to run) for so long
as the Participant was in violation of that provision.
11. Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective heirs, executors, administrators, successors and permitted
assigns.
12. Tax Consequences and Withholding. Nothing contained herein shall be construed as
a promise, guarantee, or other representation by the Company of any particular tax effect nor shall
the Company be liable for any taxes, penalties, or other amounts incurred by the Participant. The
Company may withhold from any Shares that it is required to deliver under this Agreement the number
of Shares sufficient to satisfy applicable withholding requirements under any applicable federal,
state, local or foreign law, rule or regulation if any. The Participant acknowledges that he/she
has had sufficient opportunity to review with his/her own tax advisors the federal, state, local,
and foreign tax consequences of the transactions contemplated by this Agreement. The Participant
acknowledges he/she must rely solely on such advisors and not on
11
any statement or representations of the Company or any of its agents. The Participant
understands that he/she (and not the Company) shall be responsible for any tax liability that may
arise as a result of the transactions contemplated by the Agreement.
13. No Limitation on the Companys Rights. The awarding of RSUs shall not in any way
affect the Companys right or power to make adjustments, reclassifications or changes in its
capital or business structure or to merge, consolidate, reincorporate, dissolve, liquidate or sell
or transfer all or any part of its business or assets. The terms and provisions of this Agreement
that provide for the Participant to forfeit Executive Performance RSUs in the event of a
termination for Cause, shall be in addition to any other remedies or rights that the Company shall
have, and any penalties or restrictions that may apply, under state or federal law, or any
employment or other agreement.
14. Plan and Agreement Not a Contract of Employment or Service. Neither the Plan nor
this Agreement is a contract of employment or service, and no terms of the Participants employment
or service will be affected in any way by the Plan, this Agreement or related instruments, except
to the extent specifically expressed therein. Neither the Plan nor this Agreement will be
construed as conferring any legal rights to the Participant to continue in the employment or
service with the Company or any subsidiary or affiliate thereof.
15. Entire Agreement and Amendment. This Agreement is the entire Agreement between
the parties to it, and all prior oral and written representations are merged in this Agreement.
This Agreement may be amended, modified or terminated only by written agreement between the
Participant and the Company, provided, that the Company may amend this Agreement without further
action by the Participant if such amendment is deemed by the Company to be advisable or necessary
to comply with Code Section 409A. The headings in this Agreement are inserted for convenience and
identification only and are not intended to describe, interpret, define or limit the scope, extent,
or intent of this Agreement or any provision hereof. Each party has cooperated in the preparation
of this Agreement. As a result, this Agreement shall not be construed against any party on the
basis that the party was the draftsperson.
16. Notices. Notices given pursuant to this Agreement shall be in writing and shall
be deemed received when personally delivered, or on the date of written confirmation of receipt by
(i) overnight carrier, (ii) facsimile, (iii) registered or certified mail, return receipt
requested, addressee only, postage prepaid, or (iv) such other method of delivery that provides a
written confirmation of delivery. Notice to the Company shall be directed to:
Fuel Tech, Inc.
27601 Bella Vista Parkway
Warrenville, Illinois 60555
Attention: Equity Administration Department, Attn: Assistant Controller
The Company may change the person and/or address to which the Participant must give notice under
this Section 16 by giving the Participant written notice of such change, in accordance with the
procedures described above. Notices to or with respect to the Participant will be directed to the
Participant, or to the Participants executors, personal representatives or distributees, if the
Participant is deceased, or the assignees of the Participant, at the Participants most recent home
address on the records of the Company.
12
17. Compliance with Laws. No certificate for Shares distributable pursuant to the
Plan or this Agreement shall be issued and delivered unless the issuance of such certificate
complies with all applicable legal requirements including, without limitation, compliance with the
provisions of applicable state securities laws, the Securities Act of 1933, as amended from time to
time or any successor statute, the Exchange Act and the requirements of the exchanges on which
Shares may, at the time, be listed, and the provisions of any foreign securities laws or the rules
of foreign securities exchanges, where applicable.
18. Failure to Enforce Not a Waiver. The failure of the Company to enforce at any
time any provision of the Agreement shall in no way be construed to be a waiver of such provision
or of any other provision hereof.
19. Incorporation of the Plan. The Plan, as it exists on the date of the Agreement
and as amended from time to time, is hereby incorporated by reference and made a part hereof, and
the Executive Performance RSU Award and the Agreement shall be subject to all terms and conditions
of the Plan. In the event of any conflict between the provisions of the Agreement and the
provisions of the Plan, the terms of the Plan shall control, except as expressly stated otherwise.
20. Governing Law. The laws of the State of New York shall govern the validity,
interpretation, construction, and performance of this Agreement, without regard to the conflict of
laws principles thereof. Any dispute concerning the interpretation or effect of this Agreement or
of the Plan or the rights of the Participant under the Agreement (other than the Companys right to
seek an injunction under Section 10 above) shall be resolved according to the arbitration rules
under Section 14.5 of the Plan.
21. Code Section 409A. It is intended that this Agreement and the Plan be designed
and operated within the requirements of Code Section 409A (including any applicable exemptions)
and, in the event of any inconsistency between any provision of the Plan or this Agreement and
Section 409A, the provisions of Section 409A shall control. Any provision in the Plan or Agreement
that is determined to violate the requirements of Section 409A shall be void and without effect.
Any provision that is required by Section 409A to appear in the Plan or Agreement that is not
expressly set forth therein shall be deemed to be set forth therein, and the Plan shall be
administered in all respects as if such provision was expressly set forth herein. Any reference in
the Plan or Agreement to Section 409A or a Treasury Regulation Section shall be deemed to include
any similar or successor provisions thereto.
(a) The Executive Performance RSU Award including each component RSU Award part thereof
is intended to be exempt from Code Section 409A under the short-term deferral exception set
forth in Code Section or, in the alternative, to comply with the requirements of Section
409A.
(b) Notwithstanding anything in the Plan or Agreement to the contrary, if the
Participant should become subject to the 6-month delay rule of Treasury Regulation Section
1.409A-1(c)(3)(v), then to the extent that the Executive Performance RSU award, in whole or
in part, is subject to Section 409A and the Participant is a Specified Employee (as defined
below) as of the date of Separation from Service (as defined below), distributions with
respect to any RSUs that have been deferred may not be made
13
before the date that is six (6) months after the date of Separation from Service or, if
earlier, the date of the Participants death.
22. Counterparts. This Agreement may be executed in one or more counterparts, all of
which together shall constitute but one Agreement.
23. Definitions. Where used in this Agreement, the following capitalized terms shall
have the following meanings:
(a) Cause shall have the meaning set forth in any employment, consulting, or other
written agreement between the Participant and the Company. In addition, if there is no
employment, consulting, or other written agreement between the Company and the Participant
or if such agreement does not define Cause to the extent provided for below then for
purposes of this Agreement, Cause both thereunder and under this Agreement shall mean, as
determined by the Committee in its sole judgment, conviction of the Participant under, or a
plea of guilty by the Participant to any state or federal felony charge (or the equivalent
thereof outside of the United States); any instance of fraud, embezzlement, self-dealing,
insider trading or similar malfeasance with respect to the Company or its affiliates
regardless of amount; substance or alcohol abuse; or other conduct for which dismissal has
been identified in the Companys Code of Business Ethics and Conduct or the applicable
Employee Handbook of the Company or its affiliates, or any successor manual, as a potential
disciplinary measure.
In addition, the Participants employment or service shall be deemed to have terminated
for Cause if, after the Participants employment or service has terminated, facts and
circumstances are discovered that would have justified a termination for Cause. For
purposes of this Plan, no act or failure to act on the Participants part shall be
considered willful unless it is done, or omitted to be done, by him or her in bad faith or
without reasonable belief that his or her action or omission was in the best interests of
the Company.
(b) Confidential Information means any information (whether or not specifically
labeled or identified as confidential), in any form or medium, that is disclosed to,
developed, or learned by the Participant during his/her status as a Participant, that
relates to the business, services, techniques, know-how, processes, methods, formulations,
investments, finances, operations, plans, research or development of the Company, and that
is not generally known outside of the Company. Confidential Information includes, but is
not limited to: the identity and information concerning the needs and preferences of
current, former, and prospective customers; performance, compensation, and other personnel
data concerning employees of the Company; business plans and strategies; plans for
recruiting and hiring new personnel; trade secrets; and pricing strategies and policies.
Confidential Information does not include the general skills, knowledge, and experience
gained during the Participants status as a Participant and common to others in the industry
or information that is or becomes publicly available without any breach by the Participant
of this Agreement. the Participant agrees that at all times both during this Agreement and
after his/her status as a Participant under this Agreement terminates, the Participant will
not, without the Companys express written permission, use Confidential Information for the
Participants own benefit or the benefit
14
of any other person or entity or disclose Confidential Information to any person other
than (i) in the case of disclosures made while the Participant maintained his/her status as
such hereunder, to persons to whom disclosure is required in connection with the performance
of the Participants duties for the Company or (ii) any disclosure requested by a court or
regulatory authority with jurisdiction over the subject matter, in which event the
Participant agrees promptly to notify the Company in advance of and cooperate with the
Company in any efforts to suppress or limit such disclosure.
(c) Customer means any Person (as defined below) who or which is or was a customer of
the Company and with whom the Participant had business contact during his or her tenure as a
Participant hereunder or about whom the Participant received Confidential Information;
provided that a former customer will only be considered a Customer for twelve (12) months
after the last date on which the Company provided products or services (including, without
limitation, marketing services, as determined by the Company in its sole discretion) to such
Person.
(d) Determination Date means the actual date on which the Company awards RSUs to the
Participant under this Agreement after completion of the applicable Performance Period.
(e) Distribution Date means the date on which the Shares represented by vested RSUs
shall be deemed to be distributed to the Participant, which is the date on which a RSU
vests; provided that, the Distribution Date for a Participant who elects to defer the
distribution of his or her Shares beyond the date on which the applicable RSU vests will be
the earliest of (i) the date the Participants status as a Participant under this Agreement
terminates, or (ii) the end of the deferral period specified by the Participant.
Additionally, if the Participant elects to defer the distribution of his Shares beyond the
date on which the applicable RSUs vests, but a Change in Control occurs after the applicable
RSUs vest, but before the elected deferral period expires, then, subject to the forfeiture
provisions of Sections 7 and 10, the Participants Distribution Date will occur on a date to
be determined by the Committee or Board, as applicable, immediately prior to the effective
time of the Change in Control.
(f) Good Reason shall have the meaning set forth in any employment, consulting, or
other written agreement between the Participant and the Company and, if there is no
employment, consulting, or other written agreement between the Company and the Participant
or if such agreement does not define Good Reason then for purposes of this Agreement,
Good Reason shall mean the occurrence of any of the following, without the Participants
prior written consent:
(i) Any material diminution in the Participants assigned duties,
responsibilities and/or authority;
(ii) Any material reduction in the Participants base compensation;
(iii) The Company requires the Participant to be based at a location that is
more than thirty-five (35) miles further from the Participants residence than the
location of the Participants principal job location or office immediately prior to
15
the Change in Control (except for required travel on Companys business to an
extent substantially consistent with the Participants then present business travel
obligations); or
(iv) Any other action or inaction that constitutes a material breach by the
Company of any agreement under which the Participant provides services to the
Company.
Notwithstanding the foregoing, Good Reason shall not exist unless the Participant gives
the Company written notice thereof within sixty (60) days after its occurrence and the
Company shall not have remedied the action or omission within thirty (30) days after such
written notice.
(g) Peer Group Companies means, as of the first day of the Performance Period, the
following companies:
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A123 Systems
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FuelCell Energy |
Active Power
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Met-Pro |
American Superconductor
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Peerless Manufacturing |
Amerigon
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Plug Power |
Ballard Power Systems
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Power Integrations |
Capstone Turbine
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Quantum Fuel Systems |
Clean Energy Fuels
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RenTech |
Energy Conversion Devices
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Syntroleum |
Evergreen Solar
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Fuel Systems Solutions |
During the Performance Period, the Committee shall review the companies in the Peer
Group Companies and the Committee may remove any company from the category of Peer Group
Companies if the Committee determines, in good faith and subject to its sole discretion,
that such company should no longer be part of the Peer Group Companies due to merger,
acquisition, disposition, change in ownership, growth, contraction, or any other event or
circumstance affecting the Company or one of the Peer Group Companies, which the Committee
determines, in good faith and subject to its sole discretion, is appropriate.
(h) Performance Period means, for the Look-Back RSUs, the 2011 calendar year, and for
the Revenue Growth RSUs and the TSR Performance RSUs, the two-year period commencing January
1, 2011 and ending December 31, 2012.
(i) Person means an individual or any type of business entity.
(j) Prospective Customer means any Person, other than a Customer, toward whom or
which the Company directed specific and material business development efforts, such as, but
not limited to, a detailed proposal or bid, and with whom the Participant had business
contact during his or her tenure as a Participant hereunder or about whom the Participant
received Confidential Information; provided that such Person will only be considered a
Prospective Customer for twelve (12) months after the last date on which such efforts were
undertaken by the Company.
16
(k) Protected Individual means an individual who is or was an employee, consultant or
advisor of the Company and with whom the Participant had business contact at any time during
the Participants employment or other retention by the Company or about whom the Participant
received Confidential Information ; provided that such a former employee, consultant or
advisor will only be considered a Protected Individual for six (6) months after the last
date he or she was employed by or provided services to the Company.
(l) Restricted Stock Unit or RSU means a notional account established pursuant to
an Award granted to a Participant under this Agreement, which is (i) valued solely by
reference to Shares, (ii) subject to restrictions specified in the Agreement, and (iii)
payable only in Shares.
(m) Revenue Growth means, with respect to the Company and each of the Peer Group
Companies, the Revenue Growth reported on Form 10-K for the Company and each of the Peer
Group Companies, respectively, coinciding with the Performance Period.
(n) Separation from Service shall have the meaning given in Code Section 409A, and
references to termination of employment shall be deemed to refer to a Separation from
Service. In accordance with Treasury Regulation §1.409A-1(h)(1)(ii) (or any similar or
successor provisions), a Separation from Service shall be deemed to occur, without
limitation, if the Company and the Participant reasonably anticipate that the level of bona
fide services the Participant will perform after a certain date (whether as an employee or
as an independent contractor) will permanently decrease to less than fifty percent (50%) of
the average level of bona fide services provided in the immediately preceding thirty-six
(36) months. All references in this Agreement to termination of employment or employment
termination or termination of status as a Participant under this Agreement shall be
deemed to refer to a Separation from Service.
(o) Specified Employee has the meaning given to that term in Code Section 409A and
Treasury Regulation §1.409A-1(i) (or any similar or successor provisions).
(p) Total Shareholder Return or TSR means, with respect to the Company and each of
the Peer Group Companies, the reporting companys total return to stockholders per share of
stock as reported on Form 10-K for the Company and each of the Peer Group Companies,
respectively, coinciding with the Performance Period.
In Witness Whereof, the parties have executed this Agreement effective as of the
Effective Date.
17
Exhibit A
to
2011 Executive Performance RSU Award Agreement
Equity Award Factors
The determination and approval of proposed equity awards by the Companys Compensation and
Nominating Committee are based on a variety of factors that may include:
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historical equity awards, by employee, by year; |
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intrinsic values for each equity award, or, when applicable, the fair value of each
equity award using the Black-Scholes option pricing model; |
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the number of equity award units available for issuance under the Plan; |
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supervisor recommendations for employee equity awards; |
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the estimate of expected intrinsic value (e.g., equity award compensation expense) of
the aggregate equity award; |
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Fuel Techs financial performance in light of market conditions and operational
considerations, which may be quantitative, qualitative or both; |
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achievement of individual or company operational objectives; |
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exceptional and innovative individual performance; |
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individual contribution to a strategic goal; |
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teamwork; |
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leadership accomplishments; and |
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employee job level |
18
EXECUTIVE PERFORMANCE RSU DEFERRAL ELECTION FORM
This Executive Performance RSU Deferral Election Form (Deferral Election Form) is entered into by
and between Fuel Tech, Inc. (the Company) and _________________ ( the Participant or you),
who became eligible to receive an award of Look-Back RSUs, Revenue Growth RSUs and/or TSR
Performance RSUs under the Fuel Tech, Inc. Incentive Plan, as amended (the Plan) and a 2011
Executive Performance RSU Award Agreement (the Agreement), which Agreement was legally effective
_____________, 2011. The provisions of the Plan and the Agreement are incorporated herein by
reference in their entirety and supersede any conflicting provisions contained in this Deferral
Election Form. Neither this Deferral Election Form nor the Plan or the Agreement shall be
construed as giving the Participant any right to continue to be employed by or perform services for
the Company or any subsidiary or affiliate thereof.
1. Deferral of RSUs
You may file a separate deferral election with respect to each form of RSUs you may be awarded
under the Agreement; that is, a deferral election for any Look-Back RSUs, a deferral election for
any Revenue Growth RSUs, and/or a deferral election for any TSR Performance RSUs.
Any deferral period must be expressed as a number of whole years, not less than five (5) or more
than ten (10), beginning on the Determination Date.
Deferral election must be made no earlier than the Determination Date for the form of RSUs involved
and no later than thirty (30) days after the Determination Date applicable to the form a RSUs you
are electing to defer.
Any such deferral must apply to receipt of all Shares underlying that form of RSU award; for
example, if you were to elect a deferral period of seven (7) years for any Revenue Growth RSUs,
this would result in you receiving Shares underlying the entire Revenue Growth RSUs award seven (7)
years from the Determination Date regardless of the fact that the Revenue Growth RSUs may have
vested at differing times.
If no deferral period is specified on the Deferral Election Form or if the Company does not receive
from you, a signed and dated Deferral Election Form within the required election period applicable
to any form of RSUs, Shares underlying those RSUs will be issued as described in the Agreement as
soon as practicable upon vesting of the RSUs.
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No deferral. I wish to receive Shares upon vesting of each installment of RSUs. |
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o |
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I wish to defer receipt of all Shares underlying any Look-Back RSUs until ____
years (minimum of 5) after the Determination Date. |
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I wish to defer receipt of all Shares underlying any Revenue Growth RSUs until
____ years (minimum of 5) after the Determination Date. |
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I wish to defer receipt of all Shares underlying any TSR Performance RSUs until
____ years (minimum of 5) after the Determination Date. |
2. Deferral Election Effective Date, Revision of Election During Election Period
This Deferral Election Form must be received by the Company no later than thirty (30) days after
the Determination Date applicable to the form a RSUs you are electing to defer and will become
irrevocable on such date. You may revise this Deferral Election with respect to the deferral
period no later than this due date, by contacting the Companys Equity Administration Department,
Attn: Assistant Controller in writing in accordance with the Notice provision set forth in Section
16 of the Agreement.
19