FUEL TECH, INC. EMPLOYMENT AGREEMENT — GENERAL
Exhibit 10.1
Agreement made as of the 2nd day of August, 2010 between Fuel Tech, Inc., a Delaware
Corporation (the “Company”) with its principal place of business at 00000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxxxxxxx, XX 00000, and Xxxxx X. Xxxxxxx of 0000 Xxxxxx Xxxxx, Xxxxxx, XX 00000 (“Employee”).
In consideration of the Company’s employment of Employee and the compensation to be paid to
the Employee, the Company and the Employee agree, as follows:
| 1. | Employment Status. |
| (a) | Employment with the Company is contingent on Employee signing this agreement, subject to the provisions regarding legal advice and rescission in Section 13 below. Employee shall also be entitled to participate in such benefits as the Company provides to its employees generally. |
No statement in this Employment Agreement shall be construed to grant any
Employee an employment contract of fixed duration. Nothing contained in any provision
of this Employment Agreement shall be interpreted as altering the at-will employment
relationship or as a limitation, either express or implied, on the Company’s right to
discipline or discharge an Employee. Either the Employee or the Company may terminate
the employment relationship at any time, for any reason, with or without notice and
with or without cause.
| (b) | Position. Employee is employed initially as Senior Vice President, Treasurer and Chief Financial Officer. | ||
| (c) | Base Salary, Sign-On Bonus. Employee shall initially have an annual base salary of $280,000 prorated from commencement of employment and paid semi-monthly less applicable withholdings. In addition, Employee shall be paid a one-time sign-on bonus in an amount equal to $17,500 less applicable withholdings to be paid Employee on or before December 31,2010. | ||
| (d) | Executive Officer Incentive Plan. Employee shall be entitled to participate in the Company’s 2010 Executive Officer Incentive Plan (the “EOIP”) with an initial Incentive Pool Participation Percentage (as that term is defined in the EOIP) for the Chief Financial Officer of 25.0% (prorated from commencement of employment) of the Incentive Pool (as that term is defined under the EOIP) subject to the terms and conditions of the 2010 EOIP as approved from time to time by the Compensation and Nominating Committee of the Board of Directors of the Company (“Committee”). For subsequent calendar years following 2010, Employee shall participate in such incentive plan, if any, as determined by the Company, in its sole discretion. Employee acknowledges and agrees that the Company is under no obligation to adopt an EOIP or any other incentive plan for any such subsequent period, and may withdraw or change the EOIP in any respect, including the Employee’s Incentive Pool Participation Percentage therein, or to otherwise substitute a different incentive plan in lieu of the EOIP. | ||
| (e) | Restricted Stock Unit (“RSU”) Grant. The Company is currently designing an RSU grant award program under the Company’s Incentive Plan (“Plan”), including what will be the Company’s standard terms and conditions (“RSU Grant Agreement”) for grantees of such awards under the Plan. That program, including the Company’s standard vesting schedule for an RSU grant, will require approval of the Committee before it can be implemented. Further, under the Plan, each RSU grant proposed by management under that program will require Committee approval. | ||
| The Company currently estimates providing you a grant of 20,000 Restricted Stock Units pursuant to the Plan’s RSU program under the Company’s RSU Grant Agreement. Such grant is subject to the above paragraph and also to any possible variation in the RSU grant quantity the Company, in its discretion, may deem it advisable to make based on its ultimate overall design of |
| the RSU grant program and the Committee’s approval of such grant. That grant will occur on the later of: (a) your hire date, (b) the date the Committee approves such grant under the Plan’s RSU program or (c) if either such applicable date shall be in a don’t trade period under the Company’s Xxxxxxx Xxxxxxx policy, then on the first date of the Company’s next open window period under that policy. | |||
| (f) | Vacation. Employee shall be entitled to 10 days of vacation from date of hire through December 31, 2010, fully accrued as of Employee’s hire date. Thereafter, commencing January 1, 2011, Employee shall be entitled to 25 days of vacation per calendar year accrued under the Company’s normal vacation policy. | ||
| (g) | Benefit Plans. Employee shall be entitled to participate in the Company’s 401 (k) and Profit Sharing Plan and such other benefit and health and welfare plans as are extended by the Company to employees generally. | ||
| (h) | Salary Continuation/Change of Control. If Employee’s employment is involuntarily terminated not for cause within a year after an event of “Change of Control” as defined in the Fuel Tech, Inc. Incentive Plan (“Plan”), Employee shall be entitled to continuation of base salary and benefits for up to the earlier of one year after such termination or until Employee shall attain comparable employment with an equivalent salary. “Benefits” for this purpose shall include Medical and Dental coverage, 401 (k) participation and other plans and programs in which the officers of the Company generally are entitled to participate, and, with respect to EOIP payouts, such amount for a prior year as is earned but unpaid under the terms of that prior year plan and, for a current year, such amount as the Compensation and Nominating Committee of the Board of Directors of the Company, or any successor company, shall approve. “Cause” shall mean conviction of Employee under or a plea of guilty by Employee to any state or Federal felony charge (or the equivalent thereof outside the United States); any instance of fraud, embezzlement, self-dealing, xxxxxxx xxxxxxx or similar malfeasance with respect to the Company regardless of amount; substance or alcohol abuse; or other conduct for which dismissal has been identified in the Fuel Tech, Inc. Employee Handbook, or any successor manual, or the Company’s Code of Business Conduct and Ethics, all as from time to time in effect, as a potential disciplinary measure. |
| 2. | Best Efforts. The Employee while employed by the Company shall devote Employee’s best efforts, and Employee’s time and attention to the interests of the Company as required by the Company and shall faithfully perform all duties from time to time assigned to Employee and shall conform to all of the Company’s requirements for proper business conduct including, without limitation, the Company’s policies, procedures and guidelines set forth in the Company’s Code of Business Ethics and Conduct, and the Company’s Employee Handbook as well as all applicable national, state, and local laws, regulations, and ordinances. The Company reserves the right, in its sole discretion, to change any such policies, procedures, or guidelines, in whole or in part, at any time in the future, with or without notice to Employee. | |
| 3. | Disclosure. Employee shall disclose promptly and completely to the Company in writing, and shall respond to all inquiries made by the Company whether during or after employment about, all inventions, programs, processes, software, data, formulae, trade secrets, ideas, concepts, discoveries and developments (“Developments”), whether patentable or not, which during employment the Employee may make, conceive, reduce to writing or other storage media, or with respect to which Employee shall acquire the right to grant licenses or to become licensed, either solely or jointly with others, which: |
| (a) | Relates to any subject matter with which Employee’s work for the Company may be concerned; or | ||
| (b) | Relates to or is concerned with the business, products or projects of the Company or that of its customers; or | ||
| (c) | Involves the use of the Company’s time, material or facilities. |
| Employee agrees that all such Developments are and shall remain the sole and absolute property of the Company or its nominees, Employee will not withhold Developments from the Company for the use or benefit of Employee or any other person or entity after Employee’s employment terminates. | ||
| 4. | Copyrights. Employee agrees that all writings, illustrations, models, pictures, software, and other such materials and original works of authorship created or produced by Employee during the term of his employment with the Company and relating to his employment with the Company shall be work made for hire under U.S. copyright laws and shall be at all times the sole and absolute property of the Company or its nominees. To the extent that such works are not works made for hire under the U.S. copyright laws, then Employee grants, assigns, and transfers to the Company any and all rights (including but not limited to copyrights) in and to all such works. | |
| 5. | Assignment. At all times during and after Employee’s employment with the Company and at no expense to Employee, Employee shall execute and deliver such assignments and other documents as may be reasonably requested by the Company to obtain or uphold for the benefit of the Company, patents, trademarks, and copyrights in any and all countries for Developments, whether or not Employee is the inventor or creator thereof. The Company shall be the sole and absolute owner of any resulting patents, trademarks, and copyrights for Developments. | |
| 6. | Development Exclusions. This Employment Agreement does not apply to a Development or an original work of authorship that was developed entirely on the Employees’ own time and that used no equipment or facility or trade secret information of the Company and (a) that does not result from any work performed by the Employee for the Company or (b) that does not relate to the business of the Company. | |
| 7. | Development Compensation. Employee shall receive no compensation for actions required of the Employee under the requirements of Sections 3 and 4 and 5 above whether during or after termination of employment, provided, however, that Employee shall be reimbursed by the Company for any of Employee’s reasonable out of pocket expenses necessarily arising out of such actions and such expenses are approved in advance by the Company. | |
| 8. | Confidentiality; Non-Use. At all times during and after Employee’s employment by the Company, Employee shall hold in strictest confidence, and, without the express prior written authorization of the officer of the Company to whom Employee reports or of the Board of Directors of the Company, Employee shall not disclose or transfer to any third party or use for Employee’s own benefit, any Development or any secret or confidential Company information relating to research or development programs, products or services, customer information, customer lists, business processes, business plans, or sales or marketing plans. | |
| 9. | Company Property. Employee shall carefully preserve the Company’s property and not convert it to personal use. At the termination of Employee’s employment, Employee shall return to the Company any and all Company property entrusted to Employee, including without limiting the generality of the foregoing, all notes, correspondence, books, laboratory logs, computer disks and tapes or other data storage media, engineering records, drawings; and also any keys, key cards, credit cards, telephone cards, computers, equipment and vehicles. | |
| 10. | Employee Disputes. Employee agrees that in any claim which he may bring against the Company or which the Company may bring against the Employee, the Employee now and will in the future agree and consent that, at the Company’s sole election and in its absolute discretion, any such claim may be determined in arbitration or, once initiated in any court by the Employee, may be removed by the Company from that court to arbitration. | |
| 11. | Arbitration. Except as otherwise provided in this section, any controversy or claim between Employee and the Company arising out of or relating to Employee’s employment or termination of employment or any other dispute between the parties, whether arising in tort, contract, or pursuant to a statute, |
| regulation, or ordinance now in existence or which may in the future be enacted or recognized, will be settled and determined by a single arbitrator whose award will be accepted as final and binding upon the parties. The arbitration will be conducted within the district of the federal district court with jurisdiction over Employee’s most recent place of employment with the Company and in accordance with the American Arbitration Association (“AAA”) Employment Arbitration Rules in effect at the time such arbitration is properly initiated, except in the event of any conflict with applicable law or the terms of this section, in which case applicable law will take precedence under all circumstances and the terms of this Agreement will take precedence over the AAA rules. The arbitrator will render a written decision to the parties setting forth the rationale for any award. The costs of the arbitration, including administrative fees and fees charged by the arbitrator, will be allocated pursuant to the AAA rules or, in the absence of any rules covering such costs, will be shared equally between the parties. Each party will bear its or his own travel expenses and attorneys’ fees. A judgment may be entered upon the arbitrator’s decision and the decision will be enforceable by any court having jurisdiction thereof. In any situation in which emergency injunctive relief may be necessary, either party may seek such relief from a court until such time as the arbitrator is able to address the matter covered by this section. | ||
| 12. | Waiver of Jury Trial. In the event that either party files, and is allowed by the courts to prosecute, a court action on a dispute between the Employee and the Company, the plaintiff in such an action agrees not to request, and hereby waives his, her, or its right to, a trial by jury. | |
| 13. | Legal Advice: Rescission. Employee agrees that this agreement involves Employee’s waiver of certain legal rights. Employee may, if Employee so chooses, consult with an attorney about the terms of this agreement before signing it. Employee further acknowledges that (a) the Company has given Employee a twenty-one (21) day period in which to consider the terms and binding effect of this agreement, and (b) that, if Employee does sign this agreement, Employee shall have seven days thereafter to change Employee’s mind and revoke it. Employee agrees that if Employee decides to revoke this agreement, Employee will inform the Company in writing within that seven (7) day period and obtain a written acknowledgment of receipt by the Company of the revocation. Employee understands that revocation of this agreement will affect Employee’s employment status. Employee states that Employee has carefully read this agreement; that Employee understands its final and binding effect and agrees to be bound by its terms; and that Employee has signed this agreement voluntarily. | |
| 14. | Law. This Employment Agreement and any disputes arising between the Company and Employee shall be interpreted and governed by the law of the state of Employee’s last place of employment with the Company, excluding its choice of laws rules. | |
| 15. | Integration: No Oral Modifications. This written Employment Agreement is the only employment agreement between the Company and the Employee and supersedes all other writings or understandings related to Employee’s employment. This Employment Agreement, including this provision, may not be modified by any oral statements made by any person. This Employment Agreement, including this provision, may be modified only by a written agreement signed both by the Employee and by an authorized officer of the Company. | |
| 16. | Severability. Company and Employee agree that if any of the agreements, covenants, restrictions and waivers by Employee in this Employment Agreement is held invalid by a court of competent jurisdiction, such provisions shall be stricken or modified by the Court and the remaining and modified provisions shall remain in full force and effect. |
IN WITNESS WHEREOF, the parties have signed this Employment Agreement as of the day and year
first written above.
| /s/ Xxxxx X. Xxxxxxx | /s/ Xxxxxxxxx Xxxxxx | ||||
| Xxxxx X. Xxxxxxx — Employee | Witness | ||||
| Xxxxxxxxx Xxxxxx | |||||
| Name (Please print or type) | |||||
| FUEL TECH, INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Printed Name: Xxxxxxx X. Xxxxxx | ||||
| Title: President and Chief Executive Officer | ||||
