FUEL TECH, INC. INCENTIVE PLAN INCENTIVE STOCK OPTION AWARD AGREEMENT
Exhibit
4.8
INCENTIVE
PLAN
INCENTIVE
STOCK OPTION AWARD AGREEMENT dated as of Xxxx
x, 200x
between
Fuel Tech, Inc., a Delaware corporation, of ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
PARTICIPANT
an
employee of Fuel Tech, Inc., or a subsidiary thereof (“the
Company”).
WHEREAS,
the Company desires to afford to the Participant an opportunity to purchase
shares of the Company’s Common Stock pursuant to the grant of an incentive stock
option award under the Company’s 1993 Incentive Plan (the “Plan”);
and
WHEREAS,
the Participant desires to obtain such opportunity;
NOW
THEREFORE, the parties agree, as follows:
1.
Option
Grant.
The
Company grants to the Participant as of the date first written above (the “Grant
Date”) the right and option pursuant to Section 422 of the Internal Revenue Code
(“this Option”), to purchase xx,000
shares
of
Common Stock of the Company, par value $0.01 per share (“the Stock”) at the
exercise price per share of U.S. $xx.xx
subject,
in all respects, to the terms and conditions of the Plan and to the following
terms and conditions.
2.
Vesting.
This
Option shall only be first exercisable, in whole or in part, with respect to
the
shares optioned, as to 50%, 75% and 100% of such shares, after 5:00 p.m. on
the
day preceding the second, third and fourth anniversaries, respectively, of
the
Grant Date. Pursuant to and as defined in the Plan, however, this Option shall
immediately vest upon a Change of Control of Fuel Tech, Inc.
3.
Terms
and Termination.
(a) The
term of this Option shall be a period commencing on the Grant Date and ending
at
5:00 p.m. on the date preceding the tenth anniversary thereof (“Expiration
Date”). Upon the termination of the Participant’s status as an employee of the
Company on account of:
(i)
reasons other than normal retirement, death, total disability and cause, such
portion of this option that has not then vested shall terminate immediately
but
such portion of this option that has then vested shall continue and become
non-exercisable immediately at 5:00 p.m. upon the date which is thirty (30)
days
after such termination of the Participant’s status;
(ii)
death, total disability or normal retirement, such portion of this option that
has not then vested shall terminate immediately but such portion of this Option
that has then vested may be exercised by the Participant or, pursuant to and
as
defined in the Plan, the Participant’s Beneficiary at any time during the period
ending on the earlier of (x) the Expiration Date (provided that such option
would have been able to have been exercised according to its terms absent such
death, total disability or normal retirement) or (y) 5:00 p.m. on the day
preceding the fifth anniversary of such death, total disability or normal
retirement; or
(iii)
cause, in which case all options granted hereunder shall terminate and be
immediately nonexercisable.
(b)
Notwithstanding the foregoing, where termination shall not have been for cause,
of which the Board shall be the sole judge, the Board may in its sole discretion
permit options hereunder to be exercised by the Participant at any time during
the period ending not later than the Expiration Date as the Board shall agree,
provided such option would have been able to have been exercised according
to
its terms absent termination.
(c)
“Normal Retirement” shall mean resignation of the Participant’s status as an
employee of
the
Company or a subsidiary thereof on or after attaining age sixty-five (65) or
such earlier
age as to which the Board shall consent. “Cause” shall mean, in the sole
judgment Date of
the
Board, 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, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 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, as a potential disciplinary measure.
4.
Method
of Exercise.
This
Option may be exercised only by one or more notices from time to time in writing
of the Participant’s intent to exercise this Award, or a portion thereof,
delivered to the Secretary or the Chief Financial Officer of the Company, or
their delegates, accompanied by the Participant’s check or a bank check in the
amount of the exercise price, or by delivery to the Company by the Participant
of shares of Stock previously owned equal in value to the exercise price as
of
the date of exercise, or by a request in the Participant’s notice of exercise
that the Participant desires a “Net Issue” exercise of the Option. “Net Issue”
means delivery to the Participant in complete satisfaction of the exercise,
that
number of shares of Stock which shall be the number exercised less a number
equal in value to the exercise price as of the date of exercise. Value for
purposes of exercise by delivery of previously owned Stock or by a Net Issue
exercise request shall be determined in the same manner as the determination
of
value under the Plan for the grant of option awards.
5.
Taxes.
At the
time of exercise of this Option, the Participant shall deliver to the Company,
if required by the Company, a check payable to the Company equal, in the sole
opinion of the Company, to the applicable national, state, provincial and local
income or other taxes and other pay-roll related items legally required to
be
withheld by reason of such exercise. The Participant may also satisfy the
foregoing tax and payroll-withholding obligations by delivering previously
owned
Stock or by a Net Issue exercise request.
6.
Securities
Laws.
The
Stock may only be purchased if there is with respect to the Stock a registration
statement or qualification in effect under applicable U.S. or State securities
laws or an exemption therefrom.
7.
Transferability;
Disqualifying Dispositions; Governing Law; Arbitration.
In
order that this Option shall continue as an Incentive Stock Option, this Option
may not be transferred otherwise than by will or the laws of descent and
distribution and may not be exercised by any person other than the Participant
during the Participant’s lifetime. In order that shares acquired by exercise
hereunder shall not be the subject of a disqualifying disposition and ineligible
for the tax treatment afforded under Section 421 of the Internal Revenue Code,
the Participant shall have been an employee of the Company at all times during
the period beginning on the Date of Grant and ending not later than the day
three months before exercise, and, (ii) the Participant shall hold such shares
for a period which is at least two years from the Date of Grant and one year
from the transfer of such shares to the Participant. Any transfer of such shares
whatsoever by the Participant to any person, including a nominee, prior to
the
expiration of the foregoing two and one-year periods may be treated by the
Company as a disqualifying disposition. The Participant shall report all
transfers of the shares, until the first anniversary of their exercise, to
the
Company. This Option is governed by New York Law and any disputes relating
to
this Option shall be determined by arbitration as provided in the Plan.
IN
WITNESS WHEREOF, the Company and the Participant have each executed this
Agreement, all as of the day and year first above written.