EXHIBIT 3.18
FUEL TECH, INC.
EMPLOYMENT AGREEMENT
Agreement made as of the 28th day of February, 2006 between Fuel Tech, Inc., a
Massachusetts corporation (the "Company") with a place of business at 000
Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000-0000, and Xxxx (Xxxxxx) F Xxxxxx, Xx. of 0000
Xxxxxxx Xxxxx, Xxxxxxxx Xxxx 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. (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. The Employee is employed as the President and Chief Executive
Officer of the Company and the Management of the Company shall recommend to
the Board of Directors of the Company that Employee be elected to that
position.
(c) Base Salary. The Employee shall have initially a base salary of $375,000
per year payable in twenty four installments.
(d) Annual Bonus. The Employee shall be entitled to participate in the
Company's Management Incentive Plan ("MIP") with a Target Participation
Percentage of 50% of base salary, subject to the terms of each annual plan
as approved by the Compensation and Nominating Committee of the Board of
Directors of Fuel-Tech N.V.
(e) Stock Options. Management shall recommend to the Board of Directors of
Fuel-Tech N.V. that the Employee be awarded a non-qualified stock option to
acquire 100,000 shares of Fuel-Tech N.V. common stock. The exercise price
of that option will be the fair market value per share on the date of the
award.
(f) Vacation. Employee shall be entitled to five weeks (25 days) of vacation in
the first year of employment and six weeks (30 days) of vacation annually
thereafter, exclusive of national holidays.
(g) Apartment Allowance. Prior to Employee's move to a permanent residence in
the Chicago/Batavia area, the Company shall pay Employee an apartment
rental allowance of up to $1,200 per month through June 30, 2007 but not
thereafter. Employee shall himself pay for the costs of furnishing such
apartment.
(h) Moving Expenses. The Company shall reimburse Employee for his reasonable
moving expenses from his home address above to the Chicago/Batavia area if
such expenses are incurred on or before July 1, 2007, and, if incurred
thereafter, reimbursement of such expenses shall be subject to the approval
of the Compensation Committee of the Board of Directors of Fuel-Tech N.V.
or any successor to such company.
(i) Commuting Expenses. The Company shall reimburse Employee for his weekly
round trip cabin class air fare between Columbus Ohio and Chicago and
weekly auto rental in the Chicago area (or mileage for personal vehicle if
personal vehicle is used for the commute) until Employee's permanent move
to the Chicago/Batavia area but not later than July 1, 2007.
(J) 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 N.V. 1993 Incentive Plan,
Employee shall be entitled to continuation of base salary and benefits for
up to 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) Plan
participation and other plans or programs in which the officers of the
Company generally are entitled to participate, and, with respect to MIP
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 Committee of the Board of Directors of Fuel-Tech N.V., 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 of 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 from time to time in effect, as a
potential disciplinary measure.
2. Best Efforts. The Employee while employed by the Company shall devote all
of Employee's best efforts, and all of Employee's time and attention to the
interests of the Company during reasonable business hours 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.
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 Company 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 all 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 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 relating to research and development programs, products, customer
information, customer lists, personnel information, marketing plans, and
business, operations, and sales 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 related to the
employment relationship 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. This agreement to arbitrate includes, but
is not limited to, all claims under federal, state, and local statutory or
common law, such as Title VII of the Civil Rights Act of 1964, the
Americans with Disabilities Act, the Age Discrimination in Employment Act,
the Older Workers Benefits Protection Act, the Fair Labor Standards Act,
the Employee Retirement Income Security Act, the Consolidated Omnibus
Budget Reconciliation Act, the Occupational Safety and Health Act, all
federal, state, and local laws against discrimination, the law of contract,
and the law of tort, but excluding workers' compensation claims,
unemployment claims, and claims by the Company for unfair competition or
disclosure of trade secrets.
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11. Arbitration. Employee agrees that any arbitration between Employee and the
Company shall be conducted under the Employment Dispute Resolution Rules of
the American arbitration Association ("AAA") then in effect before a single
neutral arbitrator in the municipality of Employee's then or last location
of employment with the Company. The Company shall pay all of the fees of
the AAA and the arbitrator. Employee does not in any such arbitration waive
any statutory remedies available to Employee. The arbitrator shall base any
award on the applicable law, setting forth in writing the basis of the
award. Any award in arbitration shall be final and binding and may be
entered in, or an order of enforcement may be obtained from, any court
having jurisdiction.
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 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 agreement and any disputes arising between the Company and
Employee shall be interpreted and governed by the law of the state of
Illinois, excluding its choice of laws rules.
15. No Oral Modifications. This written Employment Agreement is the only
employment agreement between the Company and the Employee. 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 agreement are 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 agreement as of the day and
year first written above.
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxxxxxx -Xxxxxxxx
Employee Witness
Xxxxx Xxxxxxx - Xxxxxxxx
Name (Please print or type)
FUEL TECH, INC.
By: /s/ X. X. Xxxxxxxx
Title: Vice President
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