exv4w8






Exhibit 4.8




RESTRICTED STOCK UNIT AGREEMENT




     This Restricted Stock Unit Agreement (the “Agreement”) is hereby entered into effective as of
________________, 2010 (the “Award Date”), by and between Fuel Tech, Inc. (the “Company”), 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. Award of Restricted Stock Units. In accordance with the terms of the Plan and
subject to the terms and conditions of this Agreement, the Company hereby awards the Participant
________________ Restricted Stock Units (“RSUs”), effective as of the Award Date. Each vested RSU
entitles the Participant to receive one share of the Company’s common stock (a “Share”) on the
Participant’s Distribution Date (as defined below). The value of the Share on the Participant’s
Distribution Date will be the Fair Market Value Per Share.



     2. Vesting of RSUs. All RSUs awarded to the Participant will vest according to the
following schedule:




     (a) one-half of the RSUs awarded shall vest on the second anniversary of the Award
Date, provided that Participant’s status as a Participant under this Agreement has not
terminated before that date;




     (b) an additional one-fourth of the RSUs awarded shall vest on the third anniversary of
the Award Date, provided that Participant’s status as a Participant under this Agreement has
not terminated before that date; and




     (c) a final one-fourth of the RSUs awarded shall vest on the fourth anniversary of the
Award Date, provided that Participant’s status as a Participant under this Agreement has not
terminated before that date.


Notwithstanding the foregoing, the Participant’s outstanding, unvested RSUs shall immediately vest
upon a Change of Control of the Company in accordance with the Plan. If the Participant’s status
as a Participant under this Agreement terminates before the lapse of vesting restrictions on the
RSUs because the Participant dies or becomes Totally Disabled, then effective the earlier date of
either such event, as applicable, all then unvested RSUs shall be forfeited.




     3. Termination of Status as Participant. Upon the termination of Participant’s status
as a Participant under this Agreement (e.g., termination of employment with the Company),




     (a) The Participant will forfeit any RSUs that have not vested under Section 2 above;
and




     (b) The Company will distribute to the Participant Shares equal to the number of RSUs
already vested regardless of whether or not the Participant had elected to defer under
Section 4 below.



     Notwithstanding anything in this Agreement to the contrary, if the Participant’s status as a
Participant under this Agreement (e.g., termination of employment with the Company) terminates for
Cause (as defined below), the Participant shall forfeit all RSUs that have not vested under Section
2 above and all RSUs that the Participant has elected to defer under Section 4 below.



     4. Deferral of Award. The Participant may elect to defer the receipt of Shares beyond
the vesting date of the underlying RSUs shown in Section 2 above. 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 Award Date. If a













 




Participant elects a deferral period but thereafter Participant’s status as a Participant
terminates after the RSU vests but before the elected deferral period expires, then, subject to the
forfeiture provisions of Sections 3 and 8, share distribution for the Participant’s vested RSUs
will occur within thirty (30) days after the date the Participant’s status as such terminates.
This deferral period will apply only to deferral elections made on the Company’s then-current
Deferral Election Form. Any such deferral election shall apply to receipt of all Shares underlying
the entire Award; for example, a deferral period of seven (7) years would result in the Participant
receiving Shares underlying the entire Award seven (7) years from the Award Date regardless of the
fact that the RSUs may have vested at differing times.




     5. Distribution of Shares. As soon as practicable after the Participant’s
Distribution Date, the Company may either (i) issue to the Participant or the Participant’s
personal representative a Share certificate or (ii) deposit Shares with an online broker or other
service provider contracted by the Company for such purpose, subject to Section 8 below and
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. The
Company will pay to the Participant in cash an amount in lieu of any fractional RSU, based on the
Fair Market Value Per Share of the Shares. Until such time as Shares have been issued to the
Participant under this Section, the Participant shall not have any rights as a holder of the Shares
underlying this Award including but not limited to voting rights or dividends, if and when the
Company declares same. RSUs represent only hypothetical Shares and, therefore, the Participant is
not entitled to any of the rights or benefits generally accorded to stockholders with respect
thereto.



     6. 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.



     7. Nontransferability. RSUs awarded under this Agreement, and any rights and
privileges pertaining thereto, 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.



     8. Non-Competition and Non-Solicitation Restrictive Covenants. In order to protect
the Confidential Information (as defined below), customer relationships, and other legitimate
business interests of the Company, during the Participant’s 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 Company’s 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 8, 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



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effect from the Company: (i) any and all RSUs awarded granted to him or her under the Plan
and this Agreement, including vested RSUs or Shares; (ii) any Shares acquired under this Award, and
(iii) any profit the Participant has realized on the vesting or sale of any Shares acquired under
this Award, which Participant may be required to repay to the Company). The forfeiture provisions
of this Section 8 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 8, 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 8. In the event that the Participant is found to have
breached any provision set forth in this Section 8 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.




     9. 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.



     10. 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 the Award Agreement. The
Participant acknowledges he/she must rely solely on such advisors and not on 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.



     11. No Limitation on the Company’s Rights. The granting of RSUs shall not in any way
affect the Company’s 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.



     12. 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 Participant’s 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 service with the Company
or any subsidiary or affiliate thereof.



     13. 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.



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     14. 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: General Counsel



The Company may change the person and/or address to which the Participant must give notice under
this Section 14 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 Participant’s executors, personal representatives or distributees, if the
Participant is deceased, or the assignees of the Participant, at the Participant’s most recent home
address on the records of the Company.




     15. 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.



     16. 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.



     17. 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 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.



     18. 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.



     19. 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 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) Each Award 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.



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     (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 an Award 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 before the date that is six (6) months after the date of Separation from
Service or, if earlier, the date of the Participant’s death.



     20. Counterparts. This Agreement may be executed in one or more counterparts, all of
which together shall constitute but one Agreement.



     21. 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 Company’s 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 Participant’s employment or service shall be deemed to have terminated
for Cause if, after the Participant’s 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 Participant’s 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 Participant’s 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 Company’s express written permission, use Confidential Information for the
Participant’s own benefit or the benefit 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



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is required in connection with the performance of Participant’s duties for the Company
or (ii) any disclosure requested by a court or regulatory authority with jurisdiction over
the subject matter, in which event 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) “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 an RSU
vests; provided that, the Distribution Date for a Participant who elects to defer the
distribution of his or her Shares will be the earlier of (i) the date the Participant’s
status as a Participant under this Agreement terminates or (ii) the end of the deferral
period specified by the Participant.




     (e) “Person” means an individual or any type of business entity.




     (f) “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.




     (g) “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 Participant’s 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.




     (h) “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.




     (i) “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.



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     (j) “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).



     In Witness Whereof, the parties have executed this Agreement effective as of the date
first above written.



	 	 	 	 	 

	 	 	Fuel Tech, Inc.
	 
	 	 	 	 
	

	 	By:	 	 
	 

	 	 	 	 
	Participant

	 	Its:	 	 
	 

	 	 	 	 










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RESTRICTED STOCK UNIT AGREEMENT

DEFERRAL ELECTION FORM




          This Restricted stock Unit (“RSU”) Award Agreement Deferral Election Form (“Deferral Election
Form”) is entered into by and between Fuel Tech, Inc. (the “Company”) and _________________ (the
“Participant”), who received an Award of RSUs under the Fuel Tech, Inc. Incentive Plan, as amended
(the “Plan”) and a Restricted Stock Unit Agreement (the “Agreement”), which Agreement was legally
effective [insert date of RSU Agreement]. 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 Participant any right to continue to be employed by or
perform services for the Company or any subsidiary or affiliate thereof.



1. Deferral of Restricted stock Units




          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 Award Date.



Deferral election must be made within thirty (30) days of the Award Date.



Any such deferral must apply to receipt of all Shares underlying the entire Award; for example, a
deferral period of seven (7) years would result in the Participant receiving Shares underlying the
entire Award seven (7) years from the Award Date regardless of the fact that the 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 Participant, her/his signed and dated Deferral Election Form within the required
election period, Shares will be issued as described in the Agreement as soon as practicable upon
vesting of the RSUs.




	 	o	 	No deferral. I wish to receive Shares upon vesting of each installment of
RSUs.
	 
	 	o	 	I wish to defer receipt of all Shares until ____ years (minimum of 5)
after the Award 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 Award Date set forth in the Agreement, i.e., _________________, and will become
irrevocable on such date. The Participant may revise this Deferral Election with respect to the
deferral period no later than such due date, by contacting the Vice President, Corporate Controller
of the Company in writing in accordance with the Notice provision set forth in Section 14 of the
Agreement.




	 	 	 	 	 
	 	
PARTICIPANT




 	 
	 	Date: