Exhibit 99.1
INDEMNITY AGREEMENT
THIS AGREEMENT made as of the __ day of _______, ____ between Fuel Tech,
Inc., a Delaware corporation ("Fuel Tech"), and ("Indemnitee").
WHEREAS, Fuel Tech and Indemnitee desire that Indemnitee serve or continue
to serve as a director and/or officer of Fuel Tech or its subsidiaries (Fuel
Tech, together with any such subsidiaries, the "Company"); and
WHEREAS, Fuel Tech desires and intends hereby to provide indemnification
(including advancement of expenses) against any and all liabilities asserted
against Indemnitee to the fullest extent permitted by the Certificate of
Incorporation of Fuel Tech and Delaware law;
NOW, THEREFORE,
WITNESSETH:
THAT for and in consideration of the premises and the covenants contained
herein, Fuel Tech and Indemnitee do hereby covenant and agree as follows:
1. Continued Service. Indemnitee will serve or continue to serve, at the
will of Fuel Tech or under separate contract if such exists, as a director
and/or officer so long as he is duly elected and qualified in accordance with
the Certificate of Incorporation and the By-Laws of Fuel Tech or until he
tenders his resignation.
2. Indemnification. Fuel Tech shall indemnify Indemnitee as follows:
(a) Except with respect to any matter as to which Indemnitee shall
have been adjudicated in any proceeding to be liable to the Company Fuel Tech
shall, to the extent legally permissible, indemnify Indemnitee against all
liabilities and expenses, including amounts paid in satisfaction of judgments,
in settlement or as fines and penalties, and counsel fees, reasonably incurred
by him in connection with the defense or disposition of any threatened, pending
or completed action, suit or other proceeding, whether civil or criminal, in
which he may be a party or threatened to be made a party, while serving or
thereafter, by reason of his being or having been a director, officer, trustee,
employee or other agent of the Company, or a director, officer, trustee,
employee or other agent of any organization in which the Company owns shares or
of which the Company is a creditor, provided, however, that Indemnitee is
serving in such capacity at the request of the Company and he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interest of the corporation, and with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful.
(b) Indemnification under Subsection (a) shall be made by the Company
only as authorized in the specific case upon a determination that
indemnification is proper in the circumstances because the person has met the
applicable standard of conduct set forth therein. Such determination shall be
made:
(A) by a majority of the directors of Fuel Tech then in
office who are not parties to such action, suit or proceeding, even
though less than a quorum; or
(B) by a committee of such directors designated by a
majority vote of such directors, even though less than a quorum; or
(C) by the holders of a majority of the outstanding stock of
Fuel Tech at the time entitled to vote for directors, voting as a
single class, exclusive of any stock owned by Indemnitee, or
(D) in the absence of action by disinterested directors or
stockholders, there has been obtained at the request of a majority of
the directors then in office an opinion in writing of independent
legal counsel to the effect that he met the standard.
(c) Expenses including counsel fees, reasonably incurred by Indemnitee
in connection with the defense or disposition of any such action, suit or other
proceeding may be paid from time to time by Fuel Tech in advance of the final
disposition thereof upon receipt of an undertaking by Indemnitee to repay the
amount so paid to Fuel Tech if it is ultimately determined that indemnification
for such expenses is not authorized under this section.
(d) The right of indemnification hereby provided shall not be
exclusive of or affect any other rights to which Indemnitee may be entitled.
3. Determination of Right to Indemnification. For purposes of making a
determination in a specific case whether to make indemnification, the board of
directors of Fuel Tech (the "Board of Directors"), independent legal counsel, or
stockholders, as the case may be, shall make such determination in accordance
with the following procedure:
(a) Indemnitee may submit to the Board of Directors a sworn statement
of request for indemnification substantially in the form of Exhibit 1 attached
hereto and made a part hereof ("Indemnification Statement") averring that he has
met the applicable standard of conduct set forth in paragraph (a) of Section 2
hereof; and
(b) Submission of the Indemnification Statement to the Board of
Directors shall create a rebuttable presumption that Indemnitee is entitled to
indemnification under this Agreement and in any proceeding for the enforcement
for the provisions hereof, and the Board of Directors, independent legal
counsel, or stockholders, as the case may be, shall within sixty (60) days after
submission of the Indemnification Statement specifically determine that
Indemnitee is so entitled, unless it or they shall possess sufficient evidence
to rebut the presumption that Indemnitee has met the applicable standard of
conduct set forth in paragraph (a) of Section 2 hereof, which evidence shall be
disclosed to Indemnitee with particularity in a sworn written statement signed
by all persons who participated in the determination and voted to deny
indemnification.
4. Authorization of Advancement of Expenses. For purposes of determining
whether to authorize advancement of expenses in a specific case pursuant to
paragraph (b) of Section 2 hereof, the Board of Directors shall make such
determination without reference to the financial ability of Indemnitee to make
repayment in accordance with the following procedure:
(a) Indemnitee may submit to the Board of Directors a sworn statement
of request for advancement of expenses substantially in the form of Exhibit 2
attached hereto and made a part hereof ("Undertaking"), averring that (i) he has
reasonably incurred or will reasonably incur actual expenses in defending a
civil or criminal action, suit or proceeding, and (ii) he
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undertakes to repay such amount if it is ultimately determined that he is not
entitled to be indemnified by Fuel Tech under this Agreement or otherwise; and
(b) Upon receipt of the Undertaking the Board of Directors shall
within fourteen (14) days authorize immediate payment of the expenses stated in
the Undertaking.
5. Merger, Consolidation or Change in Control. In the event that Fuel Tech
shall be a constituent corporation in a consolidation or merger, whether by sale
of assets or otherwise and whether Fuel Tech is the resulting or surviving
corporation or is absorbed, or if there is a change in control of Fuel Tech as
defined in Section 6 hereof, Indemnitee shall stand in the same position under
this Agreement with respect to the resulting, surviving or changed corporation
as he would have with respect to Fuel Tech if its separate existence had
continued or if there had been no change in the control of Fuel Tech
6. Certain Definitions. For purposes of this Agreement, the following
definitions apply herein:
The terms "director," "officer," "trustee," "employee," and "agent" include
their respective heirs, executors and administrators, and an "interested"
director, officer, trustee, employee or agent is one against whom in such
capacity the proceedings in question or other proceedings on the same or similar
grounds is then pending; a person shall be deemed to have acted in "good faith"
and in a manner he reasonably believed to be in the best interests the Company
if his action is based on the records or books of account of the Company or
another enterprise, or on information supplied to him by the officers of the
Company or another enterprise in the course of their duties, or on the advice of
legal counsel for the Company or another enterprise or on information or records
given or reports made to the Company or another enterprise by an independent
certified public accountant or by an appraiser or other expert selected with
reasonable care by the Company or another enterprise;
"other enterprise" shall include any organization in which the Company owns
shares or of which the Company is a creditor;
"serving at the request of the Company" shall include any service at the
request or with the express or implied authorization of the Company, as a
director, officer, employee or agent of the Company which imposes duties on, or
involves services by, Indemnitee with respect to other enterprises; and if
Indemnitee acted in good faith and in a manner he reasonably believed to be in
the interest of such "other enterprises," he shall be deemed to have acted in
"the best interests of the Company" as referred to in this Agreement; and
"change of control" shall include any change in the ownership of a majority
of the capital stock of Fuel Tech or in the composition of a majority of the
members of the Board of Directors of Fuel Tech.
7. Attorneys' Fees. In the event that Indemnitee institutes any legal
action to enforce his rights under, or to recover damages for breach of this
Agreement, Indemnitee, if he prevails in whole or in part, shall be entitled to
recover from Fuel Tech all attorneys' fees and disbursements incurred by him.
8. Severability. If any provision of this Agreement or the application of
any provision hereof to any person or circumstances is held invalid, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected.
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9. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Delaware without regard to its conflict of laws
rules.
10. Modification; Survival. This Agreement contains the entire agreement of
the parties relating to the subject matter hereof. This Agreement may be
modified only by an instrument in writing signed by both parties hereto. The
provisions of this Agreement shall survive the termination of Indemnitee's
service as a director and/or officer of Fuel Tech or Fuel Tech.
11. Deposit of Funds In Trust. In the event that Fuel Tech decides to
voluntarily dissolve or to file a voluntary petition for relief under applicable
bankruptcy, moratorium or similar laws, then not later than ten (10) days prior
to such dissolution or filing, Fuel Tech shall deposit in trust for the
exclusive benefit of Indemnitee a cash amount equal to all amounts previously
authorized to be paid to Indemnitee hereunder, such amounts to be used to
discharge Fuel Tech's obligations to Indemnitee hereunder. Any amounts in such
trust not required for such purpose shall be returned to Fuel Tech. This Section
11 shall not apply to dissolution of Fuel Tech NV. in connection with a
transaction as to which Section 5 hereof applies.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
and set their seals as of the date first above written.
INDEMNITEE
By:
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Name:
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Title:
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FUEL TECH, INC.
By:
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Name:
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Title:
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EXHIBIT 1
STATEMENT OF REQUEST FOR INDEMNIFICATION
STATE OF )
)
COUNTY OF )
I, ___________________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement dated
_________, ______, 2006, between Fuel Tech, Inc., a Delaware corporation
("Company"), and the undersigned.
2. I am requesting indemnification against expenses (including attorneys'
fees) and all of which have been actually and reasonably incurred by me in
connection with a certain action, suit or proceeding to which I am a party or am
threatened to be made a party by reason of the fact that I am or was a director
or officer of the Company or one of its subsidiaries.
3. With respect to all matters related to any such action, suit or
proceeding, I acted in good faith and in a manner I reasonably believed to be in
the best interests of Fuel Tech, Inc.
4. I am requesting indemnification against the following liabilities.
________________________________________________________________________________
________________________________________________________________________________
Subscribed and sworn to before me this ___ day of _________________, 2006.
----------------------------------------
Notary Public in and for said state
and county
My commission expires: _______________
EXHIBIT 2
STATEMENT OF UNDERTAKING
STATE OF )
)
COUNTY OF )
I, __________________________, being first duly sworn do depose and say as
follows:
1. This Statement is submitted pursuant to the Indemnity Agreement dated
_________, ______, 2006, between Fuel Tech, Inc., a Delaware corporation
("Company"), and the undersigned.
2. I am requesting advancement of certain actual expenses which I have
reasonably incurred or will reasonably incur in defending a civil or criminal
action, suit or proceeding.
3. I hereby undertake to repay this advancement of expenses if it is
ultimately determined that I am not entitled to be indemnified by the Company.
4. The expenses for which advancement is requested are as follows:
________________________________________________________________________________
________________________________________________________________________________
Subscribed and sworn to before me this ___ day of _________________, 2006.
----------------------------------------
Notary Public in and for said state
and county
My commission expires: _______________
