þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware
(State or other jurisdiction of incorporation of organization) |
20-5657551
(I.R.S. Employer Identification Number) |
Large Accelerated Filer o | Accelerated Filer þ |
Non-accelerated Filer
o
(Do not check if a smaller reporting company) |
Smaller Reporting Company o |
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PART I. | ||||||||
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Item 1. | ||||||||
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Item 2. | 13 | |||||||
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Item 3. | 16 | |||||||
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Item 4. | 16 | |||||||
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PART II. | ||||||||
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Item 1. | 17 | |||||||
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Item 2. | 17 | |||||||
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Item 3. | 17 | |||||||
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Item 4. | 17 | |||||||
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Item 5. | 17 | |||||||
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Item 6. | 18 | |||||||
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SIGNATURES | 19 | |||||||
EX-4.1 | ||||||||
EX-4.2 | ||||||||
EX-4.3 | ||||||||
EX-10.1 | ||||||||
EX-10.2 | ||||||||
EX-10.3 | ||||||||
EX-10.4 | ||||||||
EX-10.5 | ||||||||
EX-10.6 | ||||||||
EX-10.7 | ||||||||
EX-31.1 | ||||||||
EX-31.2 | ||||||||
EX-32 |
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
Item 1.
Financial Statements
CONDENSED CONSOLIDATED BALANCE SHEETS
(in thousands, except share and per-share data)
September 30,
December 31,
2009
2008
(Unaudited)
(Note B)
$
13,203
$
28,149
881
20,184
23,365
498
1,014
767
767
4,392
4,718
39,925
58,013
16,292
17,515
21,441
5,158
6,957
2,543
4,025
2,412
2,605
3,232
$
91,245
$
88,873
$
2,194
$
2,188
5,950
8,196
3,851
3,283
11,995
13,667
2,954
1,389
14,949
15,056
242
241
123,530
118,588
(47,818
)
(45,280
)
261
187
81
81
76,296
73,817
$
91,245
$
88,873
Table of Contents
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
(in thousands, except share and per-share data)
Three Months Ended
Nine Months Ended
September 30
September 30
2009
2008
2009
2008
$
16,475
$
23,703
$
52,714
$
62,961
10,034
13,019
31,786
33,521
8,000
6,789
25,130
21,181
(781
)
(781
)
160
380
391
1,844
17,413
20,188
56,526
56,546
(938
)
3,515
(3,812
)
6,415
(27
)
(31
)
(83
)
(93
)
7
145
30
610
(4
)
(238
)
(166
)
(154
)
(962
)
3,391
(4,031
)
6,778
264
(1,289
)
1,493
(2,596
)
$
(698
)
$
2,102
$
(2,538
)
$
4,182
$
(0.03
)
$
0.09
$
(0.11
)
$
0.18
$
(0.03
)
$
0.09
$
(0.11
)
$
0.17
24,142,000
23,978,000
24,127,000
23,450,000
24,142,000
24,638,000
24,127,000
24,604,000
Table of Contents
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(in thousands)
Nine Months Ended
September 30
2009
2008
$
7,502
$
8,335
(20,186
)
(881
)
1,998
(1,774
)
(9,080
)
(22,841
)
(7,082
)
5
137
63
55
251
396
392
319
980
74
74
(14,946
)
2,307
28,149
30,473
$
13,203
$
32,780
$
1,526
$
$
47
$
94
$
250
$
4,636
Table of Contents
September 30, 2009
(Unaudited)
(in thousands, except share and per-share data)
Table of Contents
Table of Contents
Three Months Ended
Nine Months Ended
September 30
September 30
2009
2008
2009
2008
24,142
23,978
24,127
23,450
45
45
615
1,109
24,142
24,638
24,127
24,604
Three Months Ended
Nine Months Ended
September 30
September 30
2009
2008
2009
2008
$
(698
)
$
2,102
$
(2,538
)
$
4,182
39
(35
)
74
74
$
(659
)
$
2,067
$
(2,464
)
$
4,256
Table of Contents
2009
0.00
%
2.37
%
67.6
%
5.2 years
Weighted-
Weighted-
Average
Number
Average
Remaining
Aggregate
of
Exercise
Contractual
Intrinsic
Options
Price
Term
Value
2,905,325
$
16.30
505,000
9.98
(52,250
)
4.82
$
307
(236,450
)
19.21
3,121,625
$
15.25
7.2 years
$
5,327
1,586,250
$
13.37
6.1 years
$
4,512
Non-vested
Stock
Outstanding
1,443,625
505,000
(245,250
)
(168,000
)
1,535,375
Table of Contents
The Air Pollution Control technology segment, which includes the Low- and Ultra-low
NOx Burners, over-fire air systems, HERT systems, NOxOUT
®
, NOxOUT
CASCADE
®
, AIG, GSG, ULTRA and NOxOUT-SCR
®
processes, for the
reduction of NOx emissions in flue gas from boilers, incinerators, furnaces and other
stationary combustion sources; and
Table of Contents
The FUEL CHEM
®
technology segment, which uses chemical processes for the
control of slagging, fouling, corrosion, opacity, acid plume and sulfur trioxide-related
issues in furnaces and boilers through the addition of chemicals into the furnace using
TIFI
®
Targeted In-Furnace Injection technology.
Three months ended
Air Pollution
FUEL CHEM
September 30, 2009
Control Segment
Segment
Other
Total
$
6,182
$
10,293
$
$
16,475
4,089
5,945
10,034
2,093
4,348
6,441
8,000
8,000
(781
)
(781
)
160
160
$
2,093
$
4,348
$
(7,379
)
$
(938
)
Three months ended
Air Pollution
FUEL CHEM
September 30, 2008
Control Segment
Segment
Other
Total
$
13,567
$
10,136
$
$
23,703
7,704
5,315
13,019
5,863
4,821
10,684
6,789
6,789
380
380
$
5,863
$
4,821
$
(7,169
)
$
3,515
Nine months ended
Air Pollution
FUEL CHEM
September 30, 2009
Control Segment
Segment
Other
Total
$
24,179
$
28,535
$
$
52,714
15,096
16,690
31,786
9,083
11,845
20,928
25,130
25,130
(781
)
(781
)
391
391
$
9,083
$
11,845
$
(24,740
)
$
(3,812
)
Nine months ended
Air Pollution
FUEL CHEM
September 30, 2008
Control Segment
Segment
Other
Total
$
35,713
$
27,248
$
$
62,961
19,507
14,013
1
33,521
16,206
13,235
(1
)
29,440
21,181
21,181
1,844
1,844
$
16,206
$
13,235
$
(23,026
)
$
6,415
Table of Contents
Three months ended September 30
Nine months ended September 30
2009
2008
2009
2008
$
14,054
$
19,319
$
43,114
$
54,845
2,421
4,384
9,600
8,116
$
16,475
$
23,703
$
52,714
$
62,961
September 30,
December 31,
2009
2008
$
82,532
$
81,241
8,713
7,632
$
91,245
$
88,873
$
265
90
(151
)
$
204
Table of Contents
Table of Contents
Three months ended September 30
2009
2008
$
16,475
$
43,856
($698
)
$
4,471
($0.03
)
$
0.19
($0.03
)
$
0.18
Nine months ended September 30
2009
2008
$
52,714
$
106,152
($2,538
)
$
9,809
($0.11
)
$
0.42
($0.11
)
$
0.40
Table of Contents
Item 2.
Managements Discussion and Analysis of Financial Condition and Results of Operations
Table of Contents
Table of Contents
Table of Contents
Item 3.
Quantitative and Qualitative Disclosures about Market Risk
Item 4.
Controls and Procedures
Table of Contents
17
18
19
Item 1.
Legal Proceedings
Item 1A.
Risk Factors
Item 2.
Unregistered Sales of Equity Securities and Use of Proceeds
Item 3.
Defaults upon Senior Securities
Item 4.
Submission of Matters to a Vote of Security Holders
Item 5.
Other Information
Table of Contents
Item 6.
Exhibits
a.
Exhibits (all filed herewith)
Instrument Constituting US $19,200 Nil Coupon Non-Redeemable Convertible Unsecured
Loan Notes of Fuel-Tech N.V., dated December 21, 1989.
First Supplemental Instrument Constituting US $3,000 Nil Coupon Non-Redeemable
Convertible Unsecured Loan Notes of Fuel-Tech N.V., dated July 10, 1990.
Instrument Constituting US $6,000 Nil Coupon Non-Redeemable Convertible Unsecured
Loan Notes of Fuel-Tech N.V., dated March 12, 1993
Employment Agreement, dated April 30, 2008, between John P. Graham and Fuel Tech, Inc.
Employment Agreement, dated February 1, 1998, between Stephen P. Brady and Fuel Tech,
Inc.
Employment Agreement, dated October 2, 2008, between Volker Rummenhohl and Fuel Tech,
Inc.
Sublease Agreement, dated January 29, 2004, between American Bailey Corporation and
Fuel Tech, Inc.
Credit Agreement dated as of June 30, 2009 by and between Fuel Tech, Inc. and
JPMorgan Chase Bank, N.A. including exhibits and schedules
First Amendment to Credit Agreement dated as of October 5, 2009 by and between Fuel Tech, Inc.
and JPMorgan Chase Bank, N.A.
Second Amendment to Credit Agreement dated as of November 4, 2009 by and between Fuel Tech, Inc.
and JPMorgan Chase Bank, N.A.
Certification of CEO pursuant to Section 302 of Sarbanes-Oxley Act of 2002
Certification of CFO pursuant to Section 302 of Sarbanes-Oxley Act of 2002
Certification of CEO and CFO pursuant to Section 906 of Sarbanes-Oxley Act of 2002
Table of Contents
Date: November 5, 2009
By:
/s/ John F. Norris Jr.
John F. Norris Jr.
Chief Executive Officer
(Principal Executive Officer)
Date: November 5, 2009
By:
/s/ John P. Graham
John P. Graham
Chief Financial Officer
(Principal Financial Officer)
1. | Definitions | |
1.1 | IN this Instrument and the Schedules hereto unless there is something in the subject or context inconsistent therewith the expressions following shall have meanings hereinafter mentioned:- | |
the Notes means the US$19,200,000 Nil Coupon Non-redeemable Convertible Unsecured Loan Notes hereby constituted or as the case may be the amount thereof for the time being outstanding; | ||
Noteholders means the several persons for the time being entered in the register provided for in the Second Schedule hereto as the holders of the Notes. | ||
1.2 | Words denoting persons shall include corporations; the masculine gender shall include the feminine, and the singular shall include the plural and vice versa. | |
1.3 | The headings are for convenience only and shall not affect the interpretation hereof. | |
2. | Amount of the Notes | |
THE principal amount of the Notes constituted by this Instrument is limited to US $19,200,000. The Notes may be issued in denominations of US $1 in nominal amount or multiples thereof to such persons at such times and on such terms and either at par or at a premium or at a discount and either for cash or for such other consideration as the Board of Directors of the Company shall determine |
3. | Eligibility | |
3.1 | THE Notes have not been registered under the United States Securities Act of 1933. Accordingly, each acquirer of Notes agrees that it will deliver to the Company, at or prior to its acquisition of Notes, a certificate stating in substance that it is not a U.S. Person and that it is not acquiring for the account of any U.S. Person. It further agrees that it will not, until the date which is 90 days after the completion of the distribution of the Notes as determined by the Company (the Season Date), offer, sell or deliver, directly or indirectly, in the United States (which term means the United States of American and its territories and possessions) or to or for the account of any U.S. Person, and such Notes. | |
3.2 | As used herein, U.S. Person means any national or resident of the United States (including the estate of any such person) and any corporation or other entity organized under the laws of the United States or any political subdivision thereof but not including a branch or agency of a bank or insurance company organized and regulated under United States law that is operating outside the United States for valid business reasons as a locally regulated branch or agency engaged in the banking or insurance business and not principally for the purpose of investing in securities not registered under the United States Securities Act of 1933. | |
4. | Status of the Notes | |
THE Notes when issued shall rank pari passu equally and ratably without discrimination or preference and as an unsecured obligation of the Company. | ||
5. | Repayment of Notes | |
AS and when the Notes or any part thereof become repayable in accordance with the provisions of this Instrument and the Conditions set forth in the First Schedule hereto the Company will pay to the Noteholders entitled thereto and the registered office of the Company or at such other place in the United Kingdom as the Directors of the Company may consider appropriate the full principal amount of the Notes to be repaid. | ||
6. | Conversion | |
6.1 | EACH holder of outstanding Notes shall (upon and subject to the provisions set out below) be entitled by serving on the Company written notice at any time after the Season Date to require the whole or any part of his holding of outstanding Notes (being an integral multiple of US $1 nominal) to be converted into new common shares in the capital of the Company at the rate, subject to adjustment under paragraph 6.2 below, of 875 new common shares (presently common shares of US $1 each ) for every |
US $10,000 nominal of Notes being converted (such rate as so adjusted from time to
time being hereinafter called the conversion rate) and so in proportion for any
greater or lesser amount of Notes converted. Within 14 days of the Company
receiving such notice of the relevant Notes shall be converted into new common
shares in the Company at the conversion rate and such shares shall be issued to
the holders of the relevant Notes fully paid in full satisfaction of all
liabilities to and right of such holders in respect of the Notes converted and the
Notes shall on such conversion be cancelled. The new common shares so issued may
contain such legends and be subject to such certification requirements or
restrictions on transfer as may be, in the Companys opinion, necessary or
advisable to comply with any applicable law or regulations. No new common shares
may be issued upon conversion of the Notes prior to the Season Date.
6.2
6.2.1
Upon any issue of fully paid common shares in the capital of the Company pursuant
to a capitalization of profits or reserves (including, without limitation, share
premium account and capital redemption reserve) to any common shareholders on the
register on a record date being a date on which any Notes remain capable of being
converted, and upon any consolidation or subdivision at any time of the common share
capital of the Company for the time being, the number of common shares in the capital
of the Company to be issued in respect of Notes converted on any date following such
record date or on any date following such subdivision or consolidation shall be
increased or decreased in due proportion. No adjustment shall be made in the
conversion rate by reason only of a holder of common shares in the capital of the
Company wholly or partially foregoing his entitlement to a cash dividend and in lieu
thereof the Company making an issue to him of fully paid common shares by way of
capitalization of an amount standing to the credit of the profit and loss account or
revenue reserves equal to the amount of the cash dividend foregone.
6.2.1
If, whilst any Notes remain capable of being converted, the Company shall make any
offer of common shares (New Shares) or of rights to common shareholders of the
Company on the register on a record date being a date on which any Notes remain
capable of being converted the Company shall make, or use its best endeavors to
procure that there is made, a like offer at the same time to each Noteholder as if
his conversion rights had been exercisable and exercised in full with effect
immediately before such record date at the conversion rate then applicable. The
Company shall not make any such offer to holders of the common shares in the capital
of the Company unless it makes to each Noteholder at the same time a like offer as
referred to in the preceding sentence of this sub-paragraph.
6.3
No fraction of a common share shall be issued on conversion but any such fraction as
would otherwise fail to be issued shall be disregarded.
6.4
The Company shall keep available for issue sufficient authorized but unissued common
shares to satisfy in full all rights for the time being outstanding of conversion
into and subscription for common shares.
6.5
New common shares in the capital of the Company issued on conversion shall be
credited as fully paid and shall carry the right to receive all dividends and (unless
adjustments shall have been made in respect thereof pursuant to sub-paragraph 6.2
above) all other distributions (including, but not limited to, any issued referred to
an sub-paragraph 6.2.1 above) declared, paid or made on the common shares in the
capital of the Company after the date of issue of such new common shares and shall
rank pari passu in all other respects and form one class with the common shares in
the capital of the Company in issue on the relevant issue date.
6.6
6.6.1
If the Company commences liquidation or dissolution (whether voluntary or
compulsory) it shall forthwith give notice in writing thereof to all Noteholders.
Each Noteholder shall then in respect of the whole or any part of this Notes be
entitled, within six weeks after the service of such notice, to elect by notice in
writing to the Company to be treated as if he had converted his outstanding holding
of Notes on the day immediately preceding the date of such commencement (the Date of
Election) on the basis (including rate) of conversion then applicable (after making
any appropriate adjustments pursuant to sub-paragraph 6.2 above). Subject as
provided below in this sub-paragraph 6.6.1, in that event such Noteholder shall in
lieu of the payments which would otherwise be due in respect of his outstanding Notes
subject to an election, be entitled to participate in the assets available in the
liquidation or dissolution pari passu with the common shareholders as if he were the
holder of the common shares to which he would have become entitled had the Notes in
respect of which he shall have made such election been converted as aforesaid.
Notwithstanding the foregoing, a Noteholder making such election shall be entitled to
receive and retain any payment in respect of the Notes subject to such election which
shall have become due prior to the Date of Election as thought he had not made such
election. For the purpose of determining the assets in which any Noteholder making
an election as aforesaid shall be entitled to participate, the provisions of
sub-paragraph 6.5 above shall be deemed to apply as
if the Noteholder had converted his holding of Notes on the Election Date.
Subject to this sub-paragraph 6.6.1, the conversion rights of Noteholders shall
lapse in the event of the liquidation or dissolution of the Company.
6.6.2
If the Notes shall become immediately due and repayable in accordance with the
provisions of this Instrument (for any reason other than the liquidation or
dissolution of the Company), the Company shall forwith give notice in writing thereof
to all Noteholders. Thereupon each Noteholder shall, in respect of the whole or any
part of his Notes, be entitled within six weeks after the service of such notice to
exercise his rights of conversion (with effect as on the day prior to the date on
which the Notes shall have become so due and repayable) on the basis (including rate)
of conversion then applicable (after making any appropriate adjustments pursuant to
sub-paragraph 6.2 above) by notice in writing deposited at the registered office of
the Company prior to the expiry of such six weeks.
7.
Certificates for Notes
EACH
Certificate for Notes shall bear a denoting number and shall be
issued to a Noteholder under the name of a director or the secretary of the
Company. Every Certificate shall be in the form or substantially in the form set
out in the First Schedule hereto and shall have endorsed thereon Conditions in the
form or substantially in the form also set forth in that Schedule. The Notes
shall be held subject to such Conditions all of which shall be deemed to be
incorporated in this Instrument and shall be binding on the Company and the
Noteholders and all persons claiming through or under them respectively. The
Company shall not be bound to register more than four persons as the joint holders
of any Notes and in the case of Notes held jointly be several persons the Company
shall not be bound to issue more than one Certificate therefor and delivery of a
Certificate to one of such persons shall be sufficient delivery to all. Prior to
the Season Date, the Company shall note be bound to register the transfer of
interest in a Note if such Note is not accompanied by a certification the
transferee thereof is not a, and is not acquiring an interest in such Note for the
account of any, U.S. Person. When a Noteholder transfers or has redeemed part
only of his Notes the old Certificate shall be cancelled and a new Certificate for
the balance of such Notes issued without charge.
8.
Events on which Notes repayable
NOTWITHSTANDING
any other provisions of this Instrument or the Schedules
hereto the Notes registered in the name of any Noteholder (so far as not
previously repaid) will become immediately repayable at par in each and every of
the following events:-
9. | Covenants by Company | |
THE Company hereby covenants with the Noteholders and each of them duly to perform and observe the obligations on its part herein contained to the intent that this Instrument shall enure for the benefit of all Noteholders each of whom may sue for the performance or observance of the provisions hereof so far as his holding of Notes is concerned. | ||
10. | Further Notes | |
THE Company shall be entitled from time to time by resolution of the Board of Directors of the Company or of a duly authorized committee thereof to create and issue further Notes to be constituted by deed or instrument expressed to be supplement hereto so as to form a single series with the Notes previously in issue. | ||
11. | Conditions of the Issue | |
THE conditions and provisions contained in the First Second and Third Schedules hereto shall have effect in the same manner as if such Conditions and provisions were herein set forth. | ||
12. | Governing Law | |
THIS Instrument and the Schedules hereto shall be governed by and construed in accordance with English law. |
Certificate No. | Transfer No. | Amount | ||
US$ |
NAME(S) OF HOLDER(S) | AMOUNT OF NOTES |
FUELTECH N.V. | ||||||
|
||||||
Date:
|
By: | |||||
|
|
|||||
|
Title: |
1. | Repayment and Purchase | |
1.1 | UNLESS previously converted in accordance with Clause 6 of the Instrument or purchased by the Company, the Notes shall be repaid at par in the circumstances described in Clause 8 of the Instrument. | |
1.2 | The Company will be entitled at any time to purchase any Notes by tender or by private treaty or otherwise at any price agreed between the Noteholder and the Company. | |
2. | Surrender of Certificate | |
2.1 | EVERY Noteholder any part of whose Notes is due to be repaid under any of the provision of these Conditions shall not later than the due date for such prepayment deliver up to the Company at its registered office for the time being or such other place as the Company may from time to time notify the Noteholders the Certificate(s) of his Notes which are due to be repaid in order that the same may be cancelled and upon such delivery and against a receipt if the Company shall so require for the principal moneys payable in respect of the Notes to be redeemed the Company shall pay to the Noteholder the amount payable to him in respect of such redemption and such payment shall be made through a bank on behalf of the Company if the Company shall think fit PROVIDED THAT if any Certificate(s) so delivered to the Company includes any Notes not redeemable on the occasion on which it is so delivered a fresh Certificate for the balance of the Notes not redeemable on that occasion shall be issued free of charge to the Noteholder delivering such Certificate to the Company. | |
2.2 | If any Noteholder any part of whose Notes is liable to be repaid under these Conditions shall fail or refuse to deliver up the Certificate(s) for such Notes at the time and place fixed for repayment thereof or shall fail or refuse to accept payment of the redemption or the repayment moneys payable in respect thereof the moneys payable to such Noteholder shall be set aside by the Company and paid into a separate interest bearing bank account and held by the Company in trust for such Noteholder and such setting aside shall be deemed for all the purposes of these Conditions to be a payment to such Noteholder and the Company shall thereby be discharged from all obligations in connection with such Notes. If the Company shall place the said moneys on deposit at a bank the Company shall not be responsible for the safe custody of such |
moneys or for interest thereon except such interest (if any) as said moneys may earn whilst on deposit less any expenses incurred by the Company in connection therewith. Any such amount so paid or deposited which remains unclaimed after a period of twelve years from the making of the payment in or deposit shall revert to the Company notwithstanding that in the intervening period the obligations to pay the same may have been provided for in the books accounts and other records of the Company. | ||
3. | Cancellation | |
ALL Notes repaid, prepaid, purchased or redeemed by the Company shall be cancelled and the Company shall not be at liberty to keep the same of the purposes of re-issue or to re-issue the same. | ||
4. | Modification | |
THE provisions of this Instrument and the rights of the Noteholders may from time to time be modified, abrogated or compromised in any respect with the sanction of an Extraordinary Resolution of the Noteholders as defined in the Instrument and with the consent of the Company. | ||
5. | Further Issues | |
THE Instrument constituting the Notes makes provision for the Company to make further issues of Unsecured Loan Notes so as to form a single issue with the Notes constituted thereby. | ||
6. | Transfer | |
THE Notes are registered and are not transferable without the prior written consent of the Company. The Notes may not be transferred to or for the account of any U.S. Person prior to the Season Date (as both such terms are defined in the Instrument). | ||
7. | Dealings | |
THE Notes shall not be capable of being dealt in on any Stock Exchange in the United Kingdom or elsewhere and no application has been or will be made to any Stock Exchange for permission to deal in or for an official or other quotation for the Notes. | ||
8. | Form and Status | |
THIS Note constitutes an unsecured obligation of the Company. The Instrument pursuant to which this Note is issued does not contain any restrictions on borrowing, charging or disposal of assets by the Company or any of its subsidiaries. |
12. | Inspection | |
A copy of the Instrument shall be kept at the registered office of the Company. A Noteholder and any person authorized by a Noteholder may at all reasonable times during office hours inspect such copy. |
1. | Inspection | |
1.1 | THE Company shall at all times keep at its registered office or at the office of the Registrars of the Company a register showing (a) the names and addresses of the holders for the time being of the Notes; (b) the amount of the Notes held by every registered holder; (c) the date on which the name of every such registered holder is entered in respect of the Notes standing in his name; and (d) the serial number of each Certificate for the Notes issued and the date of issue thereof. The Noteholders or any of them shall be at liberty at all reasonable times during office hours to inspect the said register and to take copies of or extracts from the same or any part thereof. The said register may be closed at such times and for such times and for such periods as the Company may from time to time determine provided it shall note be closed for more than thirty days in any year and during such period the Company shall be under no obligation to register transfers of the Notes. | |
1.2 | Any change of name or address on the part of any holder of Notes shall forthwith be notified by the holder to the Company and the Company shall alter the register accordingly. | |
2. | Recognition of Noteholder as absolute owner | |
2.1 | THE Company will recognize the registered holder of any Notes as the absolute owner thereof and shall note (except as ordered by a court of competent jurisdiction) be bound to take notice or see to the execution of any trust whether express implied or constructive to which any Notes may be subjection and the receipt of the registered holder for the time being of any Notes or in the case of joint registered holders the receipt of any of them for the principal moneys payable in respect thereof or for the interest from time tot time accruing due in respect thereof or for any other moneys payable in respect thereof shall be a good discharge to the Company notwithstanding any notice it may have whether express or otherwise of the right title interest or claim of any other person to or in such Notes interest or moneys. The Company shall not be bound to enter any notice of any trust whether express implied on constructive on the register in respect of any Notes. |
3. | Exclusion of equities | |
EVERY Noteholder will be recognized by the Company as entitled to his Notes free from any equity set-off or cross-claim on the party of the Company against the original or any intermediate holder of the Notes. | ||
4. | Transferability of Notes | |
THE Notes are, subject to Condition 6 as endorsed on the Notes, transferable by instrument in writing in the usual common form (or in such other form as the Directors of the Company may approve) in amounts and multiples of US $1. There shall not be included in any instrument of transfer any Notes other than the Notes constituted by the Instrument. | ||
5. | Execution of Transfers | |
EVERY instrument of transfer must be signed by the transferor and the transferor shall be deemed to remain the owner of the Notes to be transferred until the name of the transferee is entered in the register in respect thereof. | ||
6. | Registration of Transfers | |
EVERY instrument of transfer must be left for registration at the registered office of the Company or if different the place where the register of the Notes shall for the time being be kept accompanied by the Certificate(s) of the Notes to be transferred together with such other evidence as the Directors or other officers of the Company authorized to deal with transfers may require to prove the title of the transferor or his right to transfer the Notes and if the instrument of transfer is executed by some other person on his behalf the authority of that person to do so. All instruments of transfer which shall be registered may be retained by the Company. No transfer shall be registered of Notes in respect of which a Notice of Repayment has been given. | ||
7. | No fees for registration of Transfers | |
NO fee shall be charged for the registration of any transfer or for the registration of any probate letters of administration certificate of marriage or death power of attorney or other documents relating to or affecting the title to any Notes. | ||
8. | Recognition of personal representatives | |
THE executors or administrators of a deceased registered holder of Notes (not being one of several joint registered holders) and in the case of death of one or more of several joint registered holders the survivor or survivors of such joint registered holders shall be the only person or persons recognized by the Company as having any title to such Notes. |
9. | Transmission of Notes | |
ANY person becoming entitled to any of the Notes in consequence of the death or bankruptcy of any holder of such Notes or of any other event giving rise to the transmission of such Notes by operation of law may upon producing evidence that he sustains the character in respect of which he proposes to act under this condition or of his title as the Directors shall think sufficient be registered himself as the holder of such Notes or subject to the preceding conditions as to transfer may transfer such Notes. The Company shall be at liberty to retain any payments paid upon any such Notes which any person under this provision is entitled to transfer until such person shall be registered or shall duly transfer the Notes. | ||
10. | Payment of principal | |
THE principal amount of the Notes (or any part thereof) may be paid by cheque or warrant made payable to the order of and sent to the registered address of the holder or in the case of joint registered holders made payable to the order of and sent to the registered address of that one of the joint registered holders who is first named on the register or made payable to the order of such person and sent to such address as the registered holder or all of the joint registered holders may in writing direct. Every such cheque or warrant may be sent through the post at the risk of the registered holder or joint registered holders and payment of the cheque or warrant shall be a satisfaction of the money represented thereby. All payments of principal to be made by the Company will be made after any deductions for or on account of any present or future taxation required to be deducted therefrom. | ||
11. | Receipt of Joint Holders | |
IF , several persons are entered in the resister as joint registered holders of any Notes then without prejudice to the last preceding paragraph the receipt of any one of such persons for any principal or other moneys payable in respect of such Notes shall be as effective a discharge to the Company as if the person signing such receipt were the sole registered holder of such Notes. | ||
12. | Replacement of Certificates | |
IF the Certificate for any Notes is lost defaced or destroyed it may be renewed on such terms (if any) as to evidence and indemnity as the Directors may require but so that in the case of defacement the defaced Certificate shall be surrendered before the new Certificate is issued. | ||
13. | Notice to the Noteholders | |
ANY notice or other document (including Certificates for Notes) may be given or sent to any Noteholder by sending the same by post in a pre-paid letter addressed to such Noteholder at his registered address. In the case of joint registered holders of any Notes a notice given to the Noteholder whose name stands first in the register in respect of such Notes shall be sufficient notice to all joint holders. Notice may be given to the persons entitled to any Notes in consequence of the death or bankruptcy of any Noteholder by sending the same by post in a pre-paid envelope addressed to them by name or by the title of the representative or trustees of such holder at the address (if any) supplied for the purpose by such persons or (until such address is supplied) by giving notice in the manner in which it would have been given if the death or bankruptcy had not occurred. |
14. | Notice to the Company | |
ANY notice or other document (including Certificates for Notes and transfers of Notes) may be given or sent to the Company by sending the same by post in a pre-paid letter addressed to the Company at its registered office or such other address as the Company may from time to time notify the Noteholders. | ||
15. | Service of Notices | |
ANY notices given or document sent by post shall be deemed to be served or received at the expiration of seventy-two hours after the time when it is posted and in proving such service or receipt it shall be sufficient to prove that the envelope containing the notice or document was properly addressed, stamped and posted. |
1. | Calling of meetings | |
THE Company may at any time and shall upon the request in writing signed by the registered holders of not less than one-tenth in nominal value of the Notes for the time being outstanding convene a meeting of the Noteholders to be held at such place as the Company shall determine. | ||
2. | Notice of meetings | |
AT least fourteen or in the case of a meeting convened for the purpose of passing an Extraordinary Resolution at least twenty-one clear days notice specifying the place day and hour of meeting shall be given to the Noteholders of any meeting of Noteholders in the manner hereinbefore provided. Any such notice shall specify the general nature of the business to be transacted at the meeting hereby convened but except in the case of a resolution to be proposed as an Extraordinary Resolution it shall not be necessary to specify the terms of any resolutions to be proposed. The non-receipt of notice by or the accidental omission to give notice to any Noteholder shall not invalidate any resolution passed at any such meeting. | ||
3. | Chairman of meetings | |
A person nominated by the Company shall be entitled to take the chair at any such meeting and if no such nomination is made or if at any meeting the person nominated shall not be present within fifteen minutes after the time appointed for holding the meeting the Noteholders present shall choose one of their number to be Chairman. The Directors and the Secretary of the Company and any other person authorized in that behalf by the Directors may attend at any such meetings. | ||
4. | Quorum at meetings | |
AT any such meeting convened for any purpose other than the passing of an Extraordinary Resolution persons holding or representing by proxy one-tenth in principal amount of the Notes for the time being outstanding shall form a quorum for the transaction of business. At any meeting convened for the purpose of passing an Extraordinary Resolution persons (at least two in number) holding or representing by proxy a clear majority in principal amount of the Notes for the time being outstanding shall form a quorum. No business (other than the choosing of a Chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of business. | ||
5. | Absence of quorum | |
IF within fifteen minutes from the time appointed for any meeting of the Noteholders a quorum is not present the meeting shall if convened upon the requisition of the Noteholders be dissolved. In any other case it shall stand adjourned to such day and time (being not less than fourteen days thereafter) and to such place as may be appointed by the Chairman and at such adjourned meeting the Noteholders present in person or by proxy and entitled to vote whatever the principal amount of the Notes held by them shall form a quorum and shall have power to pass any Extraordinary Resolution or other resolution and to decide upon all matters which could properly have been disposed of at the meeting from which the adjournment took place. |
6. | Notice of adjourned meetings | |
NOTICE of any adjourned meeting at which an Extraordinary Resolution is to be submitted shall be given in manner provided by these presents and such notice shall state that the Noteholders present in person or by proxy at the adjourned meeting will form a quorum. | ||
7. | Adjournment of meetings | |
THE Chairman may with the consent of (and shall if directed by) any such meeting adjourn the same from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place. | ||
8. | Resolution on show of hands | |
EVERY question submitted to a meeting of Noteholders shall be decided in the first instance by a show of hands and in case of any equality of votes the Chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) to which he may be entitled as a Noteholder or as a duly appointed proxy. | ||
9. | Demand for poll | |
AT any meeting of Noteholders unless (before or on the declaration of the result of the show of hands) a poll is demanded by the Chairman or by one or more Noteholders present in person or by proxy and holding or representing in the aggregate not less than one-twentieth in nominal value of the Notes then outstanding a declaration by the Chairman that a resolution has been carried or carried by a particular majority or lost or not carried by any particular majority shall be conclusive evidence of the fact. | ||
10. | Manner of taking poll | |
IF at any such meeting a poll is so demanded it shall be taken in such manner as the Chairman may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The demand for a poll may be withdrawn. | ||
11. | Time for taking poll | |
ANY poll demanded at any such meeting on the election of a Chairman or on any question of adjournment shall be taken at the meeting without adjournment. A poll demanded on any other question shall be taken at such time and place as the Chairman may direct. No notice need be given of a poll not take immediately. The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded. | ||
12. | THE registered holders of any of the Notes or in the case of joint holders any one of them shall be entitled to vote in respect thereof either in person or by proxy and in the latter case as if such joint holder were solely entitled to such Notes. If more than one of such joint holders be present at any meeting either personally or by proxy the vote of the senior who tenders a vote (seniority being determined by the order in which the joint holders are named in the register) shall be accepted to the exclusion of the votes of the other joint holders. | |
13. | EVERY instrument appointing a proxy must be in writing signed by the appointor or his attorney or in the case of a corporation under its common seal or signed by its attorney or a duly authorized officer and shall be in such form as the Directors may approve. Such |
instrument of proxy shall unless the contrary is stated thereon be valid as well for an adjournment of the meeting as for the meeting to which it relates and need not be witnessed. A person appointed to act as a proxy need not be a Noteholder. | ||
14. | Deposit of instrument appointing proxy | |
THE instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed or a notarially certified or office copy of such power or authority shall be deposited at such place or places as the Company may in the notice of meeting direct or if no such place is specified then at the registered office of the Company not less than forty-eight hours before the time appointed for holding the meeting or adjourned meeting or the taking of a poll at which the person named in such instrument proposes to vote and in default the instrument of proxy shall not be treated as valid. A vote given in accordance with the terms of an instrument appointing a proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the instrument of proxy or of the authority under which the instrument of proxy is given or transfer of the Notes in respect of which it is given unless previous intimation in writing of such death insanity revocation or transfer shall have been received at the registered office of the Company. No instrument appointing a proxy shall be valid after the expiration of twelve months from the date named in it as the date of its execution. | ||
15. | Votes | |
ON a show of hands every Noteholder who (being an individual) is present in person or (being a corporation) is present by a representative or by one of its officers as its proxy shall have one vote and on a poll every Noteholder present in person or by proxy shall have one vote for every US$1 in nominal amount of the Notes of which he is the holder. A Noteholder entitle to more than one vote need not use all his votes or cast all the votes he uses in the same way. | ||
16. | Powers of meetings of Noteholders | |
A meeting of the Noteholders shall in addition to any other powers have the following powers exercisable by Extraordinary Resolution namely:- |
(a) | Power to sanction any compromise or arrangement proposed to be made between the Company and the Noteholders; | ||
(b) | power to sanction any abrogation modification or compromise or any arrangement in respect of the rights of the Noteholders against the Company or its property whether such rights shall arise under these presents or otherwise; | ||
(c) | power to sanction any scheme for the reconstruction of the Company or for the amalgamation of the Company with any other company; | ||
(d) | power to sanction any scheme or proposal for the sale or exchange of the Notes for or the conversion of the Notes into shares stock debentures debenture stock or other obligations or securities of the Company or any other company formed or to be formed or cash or partly for or into such shares stock debentures debenture stock or other obligations or securities as aforesaid an partly for or into cash and for the appointment of some person with power on behalf of the Noteholders to execute an instrument of transfer of the Notes held by them in favour of the person to or with whom the Notes are to be sold or exchanged respectively; |
(e) | power to assent to any modification or abrogation of the provisions contained in these presents which shall be proposed by the Company and to authorize the Company to execute an instrument supplemental to this Instrument embodying any such modification or abrogation; | ||
(f) | power to give any authority or sanction which under the provisions of this Instrument is required to be given by Extraordinary Resolution. |
17. | Extraordinary Resolution binding all Noteholders | |
AN Extraordinary Resolution shall be binding upon all the Noteholders whether present or not present at such meeting and each of the Noteholders shall be bound to give effect thereto accordingly and the passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof the intention being that it shall test with the meeting to determine without appeal whether or not the circumstances justify the passing of such resolution. | ||
18. | Definition of Extraordinary Resolution | |
THE expression Extraordinary Resolution means a resolution passed at a meeting of the Noteholders duly convened and held in accordance with the provisions herein contained by a majority consisting of not less than three-fourths of the persons voting thereat upon a show of hands and if a poll is demanded then by a majority consisting of not less than three-fourths of the votes given on such poll. | ||
19. | Resolutions in Writing | |
A resolution in writing signed by the holders of at least 95 percent, in nominal amount of the Notes for the time being outstanding who are for the time being entitled to receive notice of meetings in accordance with the provisions herein contained shall for all purposes be as valid and effectual as an Extraordinary Resolution. Such resolution in writing may be contained in one document or in several documents in like form each signed by one or more of the Noteholders. | ||
20. | Minutes of Meetings | |
MINUTES of all resolutions and proceedings at every such meeting as aforesaid shall be made and duly entered in books to be from time to time provided for that purpose by the Company and any such Minutes if purporting to be signed by the Chairman of the meeting at which such resolutions were passed or (proceedings had) or by the Chairman of the next succeeding meeting of the Noteholders shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meeting in respect of the proceedings of which Minutes have been made shall be deemed to have been duly convened and held and all resolutions passed thereat to have been duly passed. |
FUEL TECH N.V.
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By: | J.A. De Havilland | |||
Name: | J.A. De Havilland | |||
Title: | Director | |||
(A) | This First Supplemental Instrument is supplemental to an instrument dated 21 st December 1989 (the Instrument) constituting US$19,200,000 Nil Coupon Non-redeemable Convertible Unsecured Loan Notes of the Company (the Original Notes) and entered into by the Company. | |
(B) | All of the Original Notes have been issued. | |
(C) | By virtue of Clause 10 of the Instrument the Company is entitled from time to time by resolution of the Board of Directors or of a duly constituted committee thereof to create and issue further Notes (as defined therein) to be constituted by deed or instrument expresses to be supplemental to the Instrument so as to form a single series with the Original Notes. | |
(D) | The Company has, pursuant to its Articles of Association and by resolution of its Board of Directors passed on 9 th July, 1990, created a further US$3,000,000 Nil Coupon Non-redeemable Convertible Unsecured Loan Notes (the Further Notes) to be constituted as hereinafter provided. |
1. | Subject as hereinafter provided all words and expressions defined in the Instrument shall, where the context so requires and admits, have the same meanings in this First Supplemental Instrument and in the schedule hereto. | |
2. | The principal amount of the Further Notes is limited to US$ 3,000,000. The Further Notes may be issued in denominations of US$ 1 in nominal amount or multiples thereof to such persons at such time and on such terms and either at par or at a premium to par or at a discount and either for cash or for such other consideration as the Board of Directors of the Company shall determine. | |
3. | The Further Notes shall rank pari passu in all respects with the Original Notes and shall form a single series therewith and accordingly all of the provisions of the Instrument shall apply to the Further Notes and the holders thereof as well as to the Original Notes and the holders thereof as though references therein to the Original Notes and the holders thereof were references to the Further Notes and the holders thereof respectively, save that all references to the First Schedule shall be deemed to be the Schedule of this First Supplemental Instrument and not to the First Schedule of the Instrument. | |
4. | The Instrument shall henceforth be read and construed in conjunction with this First Supplemental Instrument. |
5. | A memorandum of this First Supplemental Instrument shall be endorsed on the Instrument and any duplicate thereof. |
FUEL TECH N.V.
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By: | J.A. De Havilland | |||
Name: | J.A. De Havilland | |||
Title: | Director |
Certificate No. | Transfer No. | Amount | ||
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NAME(S) OF HOLDER(S) | AMOUNT OF NOTES |
FUELTECH N.V. | ||||||
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1. | Repayment and Purchase | |
1.1 | UNLESS previously converted in accordance with Clause 6 of the Instrument or purchased by the Company, the Notes shall be repaid at par in the circumstances described in Clause 8 of the Instrument. | |
1.2 | The Company will be entitled at any time to purchase any Notes by tender or by private treaty or otherwise at any price agreed between the Noteholder and the Company. | |
2. | Surrender of Certificate | |
2.1 | EVERY Noteholder any part of whose Notes is due to be repaid under any of the provision of these Conditions shall not later than the due date for such prepayment deliver up to the Company at its registered office for the time being or such other place as the Company may from time to time notify the Noteholders the Certificate(s) of his Notes which are due to be repaid in order that the same may be cancelled and upon such delivery and against a receipt if the Company shall so require for the principal moneys payable in respect of the Notes to be redeemed the Company shall pay to the Noteholder the amount payable to him in respect of such redemption and such payment shall be made through a bank on behalf of the Company if the Company shall think fit PROVIDED THAT if any Certificate(s) so delivered to the Company includes any Notes not redeemable on the occasion on which it is so delivered a fresh Certificate for the balance of the Notes not redeemable on that occasion shall be issued free of charge to the Noteholder delivering such Certificate to the Company. | |
2.2 | If any Noteholder any part of whose Notes is liable to be repaid under these Conditions shall fail or refuse to deliver up the Certificate(s) for such Notes at the time and place fixed for repayment thereof or shall fail or refuse to accept payment of the redemption or the repayment moneys payable in respect thereof the moneys payable to such Noteholder shall be set aside by the Company and paid into a separate interest bearing bank account and held by the Company in trust for such Noteholder and such setting aside shall be deemed for all the purposes of these Conditions to be a payment to such Noteholder and the Company shall thereby be discharged from all obligations in connection with such Notes. If the Company shall place the said moneys on deposit at a bank the Company shall not be responsible for the safe custody of such |
moneys or for interest thereon except such interest (if any) as said moneys may earn whilst on deposit less any expenses incurred by the Company in connection therewith. Any such amount so paid or deposited which remains unclaimed after a period of twelve years from the making of the payment in or deposit shall revert to the Company notwithstanding that in the intervening period the obligations to pay the same may have been provided for in the books accounts and other records of the Company. | ||
3. | Cancellation | |
ALL Notes repaid, prepaid, purchased or redeemed by the Company shall be cancelled and the Company shall not be at liberty to keep the same of the purposes of re-issue or to re-issue the same. | ||
4. | Modification | |
THE provisions of this Instrument and the rights of the Noteholders may from time to time be modified, abrogated or compromised in any respect with the sanction of an Extraordinary Resolution of the Noteholders as defined in the Instrument and with the consent of the Company. | ||
5. | Further Issues | |
THE Instrument constituting the Notes makes provision for the Company to make further issues of Unsecured Loan Notes so as to form a single issue with the Notes constituted thereby. | ||
6. | Transfer | |
THE Notes are registered and are not transferable without the prior written consent of the Company. The Notes may not be transferred to or for the account of any U.S. Person prior to the Season Date (as both such terms are defined in the Instrument). | ||
7. | Dealings | |
THE Notes shall not be capable of being dealt in on any Stock Exchange in the United Kingdom or elsewhere and no application has been or will be made to any Stock Exchange for permission to deal in or for an official or other quotation for the Notes. | ||
8. | Form and Status | |
THIS Note constitutes an unsecured obligation of the Company. The Instrument pursuant to which this Note is issued does not contain any restrictions on borrowing, charging or disposal of assets by the Company or any of its subsidiaries. |
12. | Inspection | |
A copy of the Instrument shall be kept at the registered office of the Company. A Noteholder and any person authorized by a Noteholder may at all reasonable times during office hours inspect such copy. |
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1. | Definitions | |
1.1 | IN this Instrument and the Schedules hereto unless there is something in the subject or context inconsistent therewith the expressions following shall have meanings hereinafter mentioned:- | |
the Notes means the US$6,000,000 Nil Coupon $6.50 Non-redeemable Convertible Unsecured Loan Notes hereby constituted or as the case may be the amount thereof for the time being outstanding; | ||
Noteholders means the several persons for the time being entered in the register provided for in the Second Schedule hereto as the holders of the Notes. | ||
1.2 | Words denoting persons shall include corporations; the masculine gender shall include the feminine, and the singular shall include the plural and vice versa. | |
1.3 | The headings are for convenience only and shall not affect the interpretation hereof. | |
2. | Amount of the Notes | |
THE principal amount of the Notes constituted by this Instrument is limited to US $6,000,000. The Notes may be issued in denominations of US $1 in nominal amount or multiples thereof to such persons at such times and on such terms and either at par or at a premium or at a discount and either for cash or for such other consideration as the Board of Directors of the Company shall determine |
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3. | Eligibility | |
3.1 | THE Notes have not been registered under the United States Securities Act of 1933. Accordingly, each acquirer of Notes agrees that it will deliver to the Company, at or prior to its acquisition of Notes, a certificate stating in substance that it is not a U.S. Person and that it is not acquiring for the account of any U.S. Person. It further agrees that it will not, until the date which is 90 days after the completion of the distribution of the Notes as determined by the Company (the Season Date), offer, sell or deliver, directly or indirectly, in the United States (which term means the United States of American and its territories and possessions) or to or for the account of any U.S. Person, and such Notes. | |
3.2 | As used herein, U.S. Person means any national or resident of the United States (including the estate of any such person) and any corporation or other entity organized under the laws of the United States or any political subdivision thereof but not including a branch or agency of a bank or insurance company organized and regulated under United States law that is operating outside the United States for valid business reasons as a locally regulated branch or agency engaged in the banking or insurance business and not principally for the purpose of investing in securities not registered under the United States Securities Act of 1933. | |
4. | Status of the Notes | |
THE Notes when issued shall rank pari passu equally and ratably without discrimination or preference and as an unsecured obligation of the Company. | ||
5. | Repayment of Notes | |
AS and when the Notes or any part thereof become repayable in accordance with the provisions of this Instrument and the Conditions set forth in the First Schedule hereto the Company will pay to the Noteholders entitled thereto and the registered office of the Company or at such other place in the United Kingdom as the Directors of the Company may consider appropriate the full principal amount of the Notes to be repaid. | ||
6. | Conversion | |
6.1 | EACH holder of outstanding Notes shall (upon and subject to the provisions set out below) be entitled by serving on the Company written notice at any time after the Season Date to require the whole or any part of his holding of outstanding Notes (being an integral multiple of US $1 nominal) to be converted into new common shares in the capital of the Company at the rate, subject to adjustment under paragraph 6.2 below and rounded down to the nearest common share, of one new common share of US $.01 for every US $6.50 nominal of Notes converted (such rate as so adjusted from time to time being hereinafter called the conversion rate) and so in proportion for any greater or lesser amount of Notes converted. Within 14 days of the Company receiving such notice of the relevant Notes shall be converted into new common shares in the Company at the conversion rate and such shares shall be issued to the holders of the relevant Notes fully paid in full satisfaction of all liabilities to and right of such holders in respect of the Notes converted and the Notes shall on such conversion be cancelled. The new common shares so issued may contain such legends and be subject to such certification requirements or restrictions on transfer as may be, in the Companys opinion, necessary or advisable to comply with any applicable law or regulations. No new common shares may be issued upon conversion of the Notes prior to the Season Date. | |
6.2 |
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6.2.1
Upon any issue of fully paid common shares in the capital of the Company pursuant
to a capitalization of profits or reserves (including, without limitation, share
premium account and capital redemption reserve) to any common shareholders on the
register on a record date being a date on which any Notes remain capable of being
converted, and upon any consolidation or subdivision at any time of the common share
capital of the Company for the time being, the number of common shares in the capital
of the Company to be issued in respect of Notes converted on any date following such
record date or on any date following such subdivision or consolidation shall be
increased or decreased in due proportion. No adjustment shall be made in the
conversion rate by reason only of a holder of common shares in the capital of the
Company wholly or partially foregoing his entitlement to a cash dividend and in lieu
thereof the Company making an issue to him of fully paid common shares by way of
capitalization of an amount standing to the credit of the profit and loss account or
revenue reserves equal to the amount of the cash dividend foregone.
6.2.1
If, whilst any Notes remain capable of being converted, the Company shall make any
offer of common shares (New Shares) or of rights to common shareholders of the
Company on the register on a record date being a date on which any Notes remain
capable of being converted the Company shall make, or use its best endeavors to
procure that there is made, a like offer at the same time to each Noteholder as if
his conversion rights had been exercisable and exercised in full with effect
immediately before such record date at the conversion rate then applicable. The
Company shall not make any such offer to holders of the common shares in the capital
of the Company unless it makes to each Noteholder at the same time a like offer as
referred to in the preceding sentence of this sub-paragraph.
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6.3 | No fraction of a common share shall be issued on conversion but any such fraction as would otherwise fail to be issued shall be disregarded. | |
6.4 | The Company shall keep available for issue sufficient authorized but unissued common shares to satisfy in full all rights for the time being outstanding of conversion into and subscription for common shares. | |
6.5 | New common shares in the capital of the Company issued on conversion shall be credited as fully paid and shall carry the right to receive all dividends and (unless adjustments shall have been made in respect thereof pursuant to sub-paragraph 6.2 above) all other distributions (including, but not limited to, any issued referred to an sub-paragraph 6.2.1 above) declared, paid or made on the common shares in the capital of the Company after the date of issue of such new common shares and shall rank pari passu in all other respects and form one class with the common shares in the capital of the Company in issue on the relevant issue date. | |
6.6 | ||
6.6.1 | If the Company commences liquidation or dissolution (whether voluntary or compulsory) it shall forthwith give notice in writing thereof to all Noteholders. Each Noteholder shall then in respect of the whole or any part of this Notes be entitled, within six weeks after the service of such notice, to elect by notice in writing to the Company to be treated as if he had converted his outstanding holding of Notes on the day immediately preceding the date of such commencement (the Date of Election) on the basis (including rate) of conversion then applicable (after making any appropriate adjustments pursuant to sub-paragraph 6.2 above). Subject as provided below in this sub-paragraph 6.6.1, in that event such Noteholder shall in lieu of the payments which would otherwise be due in respect of his outstanding Notes subject to an election, be entitled to participate in the assets available in the liquidation or dissolution pari passu with the common shareholders as if he were the holder of the common shares to which he would have become entitled had the Notes in respect of which he shall have made such election been converted as aforesaid. Notwithstanding the foregoing, a Noteholder making such election shall be entitled to receive and retain any payment in respect of the Notes subject to such election which shall have become due prior to the Date of Election as thought he had not made such election. For the purpose of determining the assets in which any Noteholder making an election as aforesaid shall be entitled to participate, the provisions of sub-paragraph 6.5 above shall be deemed to apply as |
5
if the Noteholder had converted his holding of Notes on the Election Date.
Subject to this sub-paragraph 6.6.1, the conversion rights of Noteholders shall
lapse in the event of the liquidation or dissolution of the Company.
6.6.2
If the Notes shall become immediately due and repayable in accordance with the
provisions of this Instrument (for any reason other than the liquidation or
dissolution of the Company), the Company shall forwith give notice in writing thereof
to all Noteholders. Thereupon each Noteholder shall, in respect of the whole or any
part of his Notes, be entitled within six weeks after the service of such notice to
exercise his rights of conversion (with effect as on the day prior to the date on
which the Notes shall have become so due and repayable) on the basis (including rate)
of conversion then applicable (after making any appropriate adjustments pursuant to
sub-paragraph 6.2 above) by notice in writing deposited at the registered office of
the Company prior to the expiry of such six weeks.
7.
Certificates for Notes
EACH
Certificate for Notes shall bear a denoting number and shall be
issued to a Noteholder under the name of a director or the secretary of the
Company. Every Certificate shall be in the form or substantially in the form set
out in the First Schedule hereto and shall have endorsed thereon Conditions in the
form or substantially in the form also set forth in that Schedule. The Notes
shall be held subject to such Conditions all of which shall be deemed to be
incorporated in this Instrument and shall be binding on the Company and the
Noteholders and all persons claiming through or under them respectively. The
Company shall not be bound to register more than four persons as the joint holders
of any Notes and in the case of Notes held jointly be several persons the Company
shall not be bound to issue more than one Certificate therefor and delivery of a
Certificate to one of such persons shall be sufficient delivery to all. Prior to
the Season Date, the Company shall note be bound to register the transfer of
interest in a Note if such Note is not accompanied by a certification the
transferee thereof is not a, and is not acquiring an interest in such Note for the
account of any, U.S. Person. When a Noteholder transfers or has redeemed part
only of his Notes the old Certificate shall be cancelled and a new Certificate for
the balance of such Notes issued without charge.
8.
Events on which Notes repayable
NOTWITHSTANDING
any other provisions of this Instrument or the Schedules
hereto the Notes registered in the name of any Noteholder (so far as not
previously repaid) will become immediately repayable at par in each and every of
the following events:-
6
(a) failure by the Company to pay on the date due any principal moneys payable on the repayment of any of the Notes; or | ||
(b) failure by the Company to observe or perform any of its obligations (other than its obligations to pay principal on the Notes) under this Instrument if such failure continues for thirty days after written notice has been given by any Noteholder requiring remedy thereof; or | ||
(c) the taking of possession by an encumbrancer or the appointment of a receiver of the whole or a substantial part of the undertaking or property of the Company; or | ||
(d) the making of an order or passing of an effective resolution for winding up the Company (other than a voluntary winding up for the purpose of amalgamation or reconstruction whereunder a successor company undertakes the obligations of the Company hereunder). |
9. | Covenants by Company | |
THE Company hereby covenants with the Noteholders and each of them duly to perform and observe the obligations on its part herein contained to the intent that this Instrument shall enure for the benefit of all Noteholders each of whom may sue for the performance or observance of the provisions hereof so far as his holding of Notes is concerned. | ||
10. | Further Notes | |
THE Company shall be entitled from time to time by resolution of the Board of Directors of the Company or of a duly authorized committee thereof to create and issue further Notes to be constituted by deed or instrument expressed to be supplement hereto so as to form a single series with the Notes previously in issue. | ||
11. | Conditions of the Issue | |
THE conditions and provisions contained in the First Second and Third Schedules hereto shall have effect in the same manner as if such Conditions and provisions were herein set forth. | ||
12. | Governing Law | |
THIS Instrument and the Schedules hereto shall be governed by and construed in accordance with English law. |
7
Certificate No.
|
Transfer No. | Amount | ||
US$ |
NAME(S) OF HOLDER(S)
|
AMOUNT OF NOTES |
FUELTECH N.V.
|
||||
Date: | By: | |||
Name: | ||||
Title: |
8
1. | Repayment and Purchase | |
1.1 | UNLESS previously converted in accordance with Clause 6 of the Instrument or purchased by the Company, the Notes shall be repaid at par in the circumstances described in Clause 8 of the Instrument. | |
1.2 | The Company will be entitled at any time to purchase any Notes by tender or by private treaty or otherwise at any price agreed between the Noteholder and the Company. | |
2. | Surrender of Certificate | |
2.1 | EVERY Noteholder any part of whose Notes is due to be repaid under any of the provision of these Conditions shall not later than the due date for such prepayment deliver up to the Company at its registered office for the time being or such other place as the Company may from time to time notify the Noteholders the Certificate(s) of his Notes which are due to be repaid in order that the same may be cancelled and upon such delivery and against a receipt if the Company shall so require for the principal moneys payable in respect of the Notes to be redeemed the Company shall pay to the Noteholder the amount payable to him in respect of such redemption and such payment shall be made through a bank on behalf of the Company if the Company shall think fit PROVIDED THAT if any Certificate(s) so delivered to the Company includes any Notes not redeemable on the occasion on which it is so delivered a fresh Certificate for the balance of the Notes not redeemable on that occasion shall be issued free of charge to the Noteholder delivering such Certificate to the Company. | |
2.2 | If any Noteholder any part of whose Notes is liable to be repaid under these Conditions shall fail or refuse to deliver up the Certificate(s) for such Notes at the time and place fixed for repayment thereof or shall fail or refuse to accept payment of the redemption or the repayment moneys payable in respect thereof the moneys payable to such Noteholder shall be set aside by the Company and paid into a separate interest bearing bank account and held by the Company in trust for such Noteholder and such setting aside shall be deemed for all the purposes of these Conditions to be a payment to such Noteholder and the Company shall thereby be discharged from all obligations in connection with such Notes. If the Company shall place the said moneys on deposit at a bank the Company shall not be responsible for the safe custody of such |
9
moneys or for interest thereon except such interest (if any) as said moneys may earn whilst on deposit less any expenses incurred by the Company in connection therewith. Any such amount so paid or deposited which remains unclaimed after a period of twelve years from the making of the payment in or deposit shall revert to the Company notwithstanding that in the intervening period the obligations to pay the same may have been provided for in the books accounts and other records of the Company. | ||
3. | Cancellation | |
ALL Notes repaid, prepaid, purchased or redeemed by the Company shall be cancelled and the Company shall not be at liberty to keep the same of the purposes of re-issue or to re-issue the same. | ||
4. | Modification | |
THE provisions of this Instrument and the rights of the Noteholders may from time to time be modified, abrogated or compromised in any respect with the sanction of an Extraordinary Resolution of the Noteholders as defined in the Instrument and with the consent of the Company. | ||
5. | Further Issues | |
THE Instrument constituting the Notes makes provision for the Company to make further issues of Unsecured Loan Notes so as to form a single issue with the Notes constituted thereby. | ||
6. | Transfer | |
THE Notes are registered and are not transferable without the prior written consent of the Company. The Notes may not be transferred to or for the account of any U.S. Person prior to the Season Date (as both such terms are defined in the Instrument). | ||
7. | Dealings | |
THE Notes shall not be capable of being dealt in on any Stock Exchange in the United Kingdom or elsewhere and no application has been or will be made to any Stock Exchange for permission to deal in or for an official or other quotation for the Notes. | ||
8. | Form and Status | |
THIS Note constitutes an unsecured obligation of the Company. The Instrument pursuant to which this Note is issued does not contain any restrictions on borrowing, charging or disposal of assets by the Company or any of its subsidiaries. |
10
12. | Inspection | |
A copy of the Instrument shall be kept at the registered office of the Company. A Noteholder and any person authorized by a Noteholder may at all reasonable times during office hours inspect such copy. |
11
1. | Inspection | |
1.1 | THE Company shall at all times keep at its registered office or at the office of the Registrars of the Company a register showing (a) the names and addresses of the holders for the time being of the Notes; (b) the amount of the Notes held by every registered holder; (c) the date on which the name of every such registered holder is entered in respect of the Notes standing in his name; and (d) the serial number of each Certificate for the Notes issued and the date of issue thereof. The Noteholders or any of them shall be at liberty at all reasonable times during office hours to inspect the said register and to take copies of or extracts from the same or any part thereof. The said register may be closed at such times and for such times and for such periods as the Company may from time to time determine provided it shall note be closed for more than thirty days in any year and during such period the Company shall be under no obligation to register transfers of the Notes. | |
1.2 | Any change of name or address on the part of any holder of Notes shall forthwith be notified by the holder to the Company and the Company shall alter the register accordingly. | |
2. | Recognition of Noteholder as absolute owner | |
2.1 | THE Company will recognize the registered holder of any Notes as the absolute owner thereof and shall note (except as ordered by a court of competent jurisdiction) be bound to take notice or see to the execution of any trust whether express implied or constructive to which any Notes may be subjection and the receipt of the registered holder for the time being of any Notes or in the case of joint registered holders the receipt of any of them for the principal moneys payable in respect thereof or for the interest from time tot time accruing due in respect thereof or for any other moneys payable in respect thereof shall be a good discharge to the Company notwithstanding any notice it may have whether express or otherwise of the right title interest or claim of any other person to or in such Notes interest or moneys. The Company shall not be bound to enter any notice of any trust whether express implied on constructive on the register in respect of any Notes. |
12
3. | Exclusion of equities | |
EVERY Noteholder will be recognized by the Company as entitled to his Notes free from any equity set-off or cross-claim on the party of the Company against the original or any intermediate holder of the Notes. | ||
4. | Transferability of Notes | |
THE Notes are, subject to Condition 6 as endorsed on the Notes, transferable by instrument in writing in the usual common form (or in such other form as the Directors of the Company may approve) in amounts and multiples of US $1. There shall not be included in any instrument of transfer any Notes other than the Notes constituted by the Instrument. | ||
5. | Execution of Transfers | |
EVERY instrument of transfer must be signed by the transferor and the transferor shall be deemed to remain the owner of the Notes to be transferred until the name of the transferee is entered in the register in respect thereof. | ||
6. | Registration of Transfers | |
EVERY instrument of transfer must be left for registration at the registered office of the Company or if different the place where the register of the Notes shall for the time being be kept accompanied by the Certificate(s) of the Notes to be transferred together with such other evidence as the Directors or other officers of the Company authorized to deal with transfers may require to prove the title of the transferor or his right to transfer the Notes and if the instrument of transfer is executed by some other person on his behalf the authority of that person to do so. All instruments of transfer which shall be registered may be retained by the Company. No transfer shall be registered of Notes in respect of which a Notice of Repayment has been given. | ||
7. | No fees for registration of Transfers | |
NO fee shall be charged for the registration of any transfer or for the registration of any probate letters of administration certificate of marriage or death power of attorney or other documents relating to or affecting the title to any Notes. | ||
8. | Recognition of personal representatives | |
THE executors or administrators of a deceased registered holder of Notes (not being one of several joint registered holders) and in the case of death of one or more of several joint registered holders the survivor or survivors of such joint registered holders shall be the only person or persons recognized by the Company as having any title to such Notes. |
13
9. | Transmission of Notes | |
ANY person becoming entitled to any of the Notes in consequence of the death or bankruptcy of any holder of such Notes or of any other event giving rise to the transmission of such Notes by operation of law may upon producing evidence that he sustains the character in respect of which he proposes to act under this condition or of his title as the Directors shall think sufficient be registered himself as the holder of such Notes or subject to the preceding conditions as to transfer may transfer such Notes. The Company shall be at liberty to retain any payments paid upon any such Notes which any person under this provision is entitled to transfer until such person shall be registered or shall duly transfer the Notes. | ||
10. | Payment of principal | |
THE principal amount of the Notes (or any part thereof) may be paid by cheque or warrant made payable to the order of and sent to the registered address of the holder or in the case of joint registered holders made payable to the order of and sent to the registered address of that one of the joint registered holders who is first named on the register or made payable to the order of such person and sent to such address as the registered holder or all of the joint registered holders may in writing direct. Every such cheque or warrant may be sent through the post at the risk of the registered holder or joint registered holders and payment of the cheque or warrant shall be a satisfaction of the money represented thereby. All payments of principal to be made by the Company will be made after any deductions for or on account of any present or future taxation required to be deducted therefrom. |
11. | Receipt of Joint Holders | |
IF , several persons are entered in the resister as joint registered holders of any Notes then without prejudice to the last preceding paragraph the receipt of any one of such persons for any principal or other moneys payable in respect of such Notes shall be as effective a discharge to the Company as if the person signing such receipt were the sole registered holder of such Notes. | ||
12. | Replacement of Certificates | |
IF the Certificate for any Notes is lost defaced or destroyed it may be renewed on such terms (if any) as to evidence and indemnity as the Directors may require but so that in the case of defacement the defaced Certificate shall be surrendered before the new Certificate is issued. | ||
13. | Notice to the Noteholders | |
ANY notice or other document (including Certificates for Notes) may be given or sent to any Noteholder by sending the same by post in a pre-paid letter addressed to such Noteholder at his registered address. In the case of joint registered holders of any Notes a notice given to the Noteholder whose name stands first in the register in respect of such Notes shall be sufficient notice to all joint holders. Notice may be given to the persons entitled to any Notes in consequence of the death or bankruptcy of any Noteholder by sending the same by post in a pre-paid envelope addressed to them by name or by the title of the representative or trustees of such holder at the address (if any) supplied for the purpose by such persons or (until such address is supplied) by giving notice in the manner in which it would have been given if the death or bankruptcy had not occurred. |
14
14. | Notice to the Company | |
ANY notice or other document (including Certificates for Notes and transfers of Notes) may be given or sent to the Company by sending the same by post in a pre-paid letter addressed to the Company at its registered office or such other address as the Company may from time to time notify the Noteholders. | ||
15. | Service of Notices | |
ANY notices given or document sent by post shall be deemed to be served or received at the expiration of seventy-two hours after the time when it is posted and in proving such service or receipt it shall be sufficient to prove that the envelope containing the notice or document was properly addressed, stamped and posted. |
15
1. | Calling of meetings | |
THE Company may at any time and shall upon the request in writing signed by the registered holders of not less than one-tenth in nominal value of the Notes for the time being outstanding convene a meeting of the Noteholders to be held at such place as the Company shall determine. | ||
2. | Notice of meetings | |
AT least fourteen or in the case of a meeting convened for the purpose of passing an Extraordinary Resolution at least twenty-one clear days notice specifying the place day and hour of meeting shall be given to the Noteholders of any meeting of Noteholders in the manner hereinbefore provided. Any such notice shall specify the general nature of the business to be transacted at the meeting hereby convened but except in the case of a resolution to be proposed as an Extraordinary Resolution it shall not be necessary to specify the terms of any resolutions to be proposed. The non-receipt of notice by or the accidental omission to give notice to any Noteholder shall not invalidate any resolution passed at any such meeting. | ||
3. | Chairman of meetings | |
A person nominated by the Company shall be entitled to take the chair at any such meeting and if no such nomination is made or if at any meeting the person nominated shall not be present within fifteen minutes after the time appointed for holding the meeting the Noteholders present shall choose one of their number to be Chairman. The Directors and the Secretary of the Company and any other person authorized in that behalf by the Directors may attend at any such meetings. | ||
4. | Quorum at meetings | |
AT any such meeting convened for any purpose other than the passing of an Extraordinary Resolution persons holding or representing by proxy one-tenth in principal amount of the Notes for the time being outstanding shall form a quorum for the transaction of business. At any meeting convened for the purpose of passing an Extraordinary Resolution persons (at least two in number) holding or representing by proxy a clear majority in principal amount of the Notes for the time being outstanding shall form a quorum. No business (other than the choosing of a Chairman) shall be transacted at any meeting unless the requisite quorum be present at the commencement of business. | ||
5. | Absence of quorum | |
IF within fifteen minutes from the time appointed for any meeting of the Noteholders a quorum is not present the meeting shall if convened upon the requisition of the Noteholders be dissolved. In any other case it shall stand adjourned to such day and time (being not less than fourteen days thereafter) and to such place as may be appointed by the Chairman and at such adjourned meeting the Noteholders present in person or by proxy and entitled to vote whatever the principal amount of the Notes held by them shall form a quorum and shall have power to pass any Extraordinary Resolution or other resolution and to decide upon all matters which could properly have been disposed of at the meeting from which the adjournment took place. |
16
6. | Notice of adjourned meetings | |
NOTICE of any adjourned meeting at which an Extraordinary Resolution is to be submitted shall be given in manner provided by these presents and such notice shall state that the Noteholders present in person or by proxy at the adjourned meeting will form a quorum. | ||
7. | Adjournment of meetings | |
THE Chairman may with the consent of (and shall if directed by) any such meeting adjourn the same from time to time and from place to place but no business shall be transacted at any adjourned meeting except business which might lawfully have been transacted at the meeting from which the adjournment took place. | ||
8. | Resolution on show of hands | |
EVERY question submitted to a meeting of Noteholders shall be decided in the first instance by a show of hands and in case of any equality of votes the Chairman shall both on a show of hands and on a poll have a casting vote in addition to the vote or votes (if any) to which he may be entitled as a Noteholder or as a duly appointed proxy. | ||
9. | Demand for poll | |
AT any meeting of Noteholders unless (before or on the declaration of the result of the show of hands) a poll is demanded by the Chairman or by one or more Noteholders present in person or by proxy and holding or representing in the aggregate not less than one-twentieth in nominal value of the Notes then outstanding a declaration by the Chairman that a resolution has been carried or carried by a particular majority or lost or not carried by any particular majority shall be conclusive evidence of the fact. | ||
10. | Manner of taking poll | |
IF at any such meeting a poll is so demanded it shall be taken in such manner as the Chairman may direct and the result of such poll shall be deemed to be the resolution of the meeting at which the poll was demanded. The demand for a poll may be withdrawn. | ||
11. | Time for taking poll | |
ANY poll demanded at any such meeting on the election of a Chairman or on any question of adjournment shall be taken at the meeting without adjournment. A poll demanded on any other question shall be taken at such time and place as the Chairman may direct. No notice need be given of a poll not take immediately. The demand for a poll shall not prevent the continuance of a meeting for the transaction of any business other than the question on which the poll has been demanded. | ||
12. | THE registered holders of any of the Notes or in the case of joint holders any one of them shall be entitled to vote in respect thereof either in person or by proxy and in the latter case as if such joint holder were solely entitled to such Notes. If more than one of such joint holders be present at any meeting either personally or by proxy the vote of the senior who tenders a vote (seniority being determined by the order in which the joint holders are named in the register) shall be accepted to the exclusion of the votes of the other joint holders. | |
13. | EVERY instrument appointing a proxy must be in writing signed by the appointor or his attorney or in the case of a corporation under its common seal or signed by its attorney or a duly authorized officer and shall be in such form as the Directors may approve. Such |
17
instrument of proxy shall unless the contrary is stated thereon be valid as well for an adjournment of the meeting as for the meeting to which it relates and need not be witnessed. A person appointed to act as a proxy need not be a Noteholder. | ||
14. | Deposit of instrument appointing proxy | |
THE instrument appointing a proxy and the power of attorney or other authority (if any) under which it is signed or a notarially certified or office copy of such power or authority shall be deposited at such place or places as the Company may in the notice of meeting direct or if no such place is specified then at the registered office of the Company not less than forty-eight hours before the time appointed for holding the meeting or adjourned meeting or the taking of a poll at which the person named in such instrument proposes to vote and in default the instrument of proxy shall not be treated as valid. A vote given in accordance with the terms of an instrument appointing a proxy shall be valid notwithstanding the previous death or insanity of the principal or revocation of the instrument of proxy or of the authority under which the instrument of proxy is given or transfer of the Notes in respect of which it is given unless previous intimation in writing of such death insanity revocation or transfer shall have been received at the registered office of the Company. No instrument appointing a proxy shall be valid after the expiration of twelve months from the date named in it as the date of its execution. | ||
15. | Votes | |
ON a show of hands every Noteholder who (being an individual) is present in person or (being a corporation) is present by a representative or by one of its officers as its proxy shall have one vote and on a poll every Noteholder present in person or by proxy shall have one vote for every US$1 in nominal amount of the Notes of which he is the holder. A Noteholder entitle to more than one vote need not use all his votes or cast all the votes he uses in the same way. | ||
16. |
Powers of meetings of Noteholders
A meeting of the Noteholders shall in addition to any other powers have the following powers exercisable by Extraordinary Resolution namely:- |
(a) | Power to sanction any compromise or arrangement proposed to be made between the Company and the Noteholders; | ||
(b) | power to sanction any abrogation modification or compromise or any arrangement in respect of the rights of the Noteholders against the Company or its property whether such rights shall arise under these presents or otherwise; | ||
(c) | power to sanction any scheme for the reconstruction of the Company or for the amalgamation of the Company with any other company; | ||
(d) | power to sanction any scheme or proposal for the sale or exchange of the Notes for or the conversion of the Notes into shares stock debentures debenture stock or other obligations or securities of the Company or any other company formed or to be formed or cash or partly for or into such shares stock debentures debenture stock or other obligations or securities as aforesaid an partly for or into cash and for the appointment of some person with power on behalf of the Noteholders to execute an instrument of transfer of the Notes held by them in favour of the person to or with whom the Notes are to be sold or exchanged respectively; |
18
(e) | power to assent to any modification or abrogation of the provisions contained in these presents which shall be proposed by the Company and to authorize the Company to execute an instrument supplemental to this Instrument embodying any such modification or abrogation; | ||
(f) | power to give any authority or sanction which under the provisions of this Instrument is required to be given by Extraordinary Resolution. |
17. | Extraordinary Resolution binding all Noteholders | |
AN Extraordinary Resolution shall be binding upon all the Noteholders whether present or not present at such meeting and each of the Noteholders shall be bound to give effect thereto accordingly and the passing of any such resolution shall be conclusive evidence that the circumstances justify the passing thereof the intention being that it shall test with the meeting to determine without appeal whether or not the circumstances justify the passing of such resolution. | ||
18. | Definition of Extraordinary Resolution | |
THE expression Extraordinary Resolution means a resolution passed at a meeting of the Noteholders duly convened and held in accordance with the provisions herein contained by a majority consisting of not less than three-fourths of the persons voting thereat upon a show of hands and if a poll is demanded then by a majority consisting of not less than three-fourths of the votes given on such poll. | ||
19. | Resolutions in Writing | |
A resolution in writing signed by the holders of at least 95 percent, in nominal amount of the Notes for the time being outstanding who are for the time being entitled to receive notice of meetings in accordance with the provisions herein contained shall for all purposes be as valid and effectual as an Extraordinary Resolution. Such resolution in writing may be contained in one document or in several documents in like form each signed by one or more of the Noteholders. | ||
20. | Minutes of Meetings | |
MINUTES of all resolutions and proceedings at every such meeting as aforesaid shall be made and duly entered in books to be from time to time provided for that purpose by the Company and any such Minutes if purporting to be signed by the Chairman of the meeting at which such resolutions were passed or (proceedings had) or by the Chairman of the next succeeding meeting of the Noteholders shall be conclusive evidence of the matters therein contained and until the contrary is proved every such meeting in respect of the proceedings of which Minutes have been made shall be deemed to have been duly convened and held and all resolutions passed thereat to have been duly passed. |
FUEL TECH N.V. | ||||||
|
||||||
|
By: |
J.A. De Havilland
|
||||
|
Name: J.A. De Havilland | |||||
|
Title: Director |
1. | Employment Status . |
2
3
|
/s/ John P. Graham | /s/ Debbie Greco | ||||||
|
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||||||
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||||||||
|
Debbie Greco | |||||||
|
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FUEL TECH, INC. | ||||
|
||||
By:
|
/s/ John F. Norris Jr.
|
|||
Title:
|
CEO and President |
4
1. | Employment Status . Employment with the Company is contingent on Employee signing this agreement, subject to the provisions regarding legal advice and rescission in §12 below. Employee is being employed as Vice President, Fuel Chemicals Sales & Marketing on a full time basis as of the date written above at the initial annual base salary of $135,000 per year. Employee shall also be entitled to participate in such other benefits as the Company provides to its employees generally. It is understood that this agreement, including §2 below, does not and is not intended to create or provide for any agreed term of employment for the Employee by the Company. The Employees employment shall be at will and may be terminated with or without cause and with or without notice at any time by the Employee or the Company. | |
2. | Stay Bonus . The Company agrees, in addition to Employees base salary and benefits mentioned above, to pay Employee on the third (3rd) anniversary of employment (the Anniversary Date), the amount> of One Hundred Eighty Thousand Dollars ($180,000) (the Bonus). If the Employees employment terminates prior to the Anniversary Date on account of death or a disability which renders Employee permanently unable to perform his responsibilities for the Company based on the opinion of a Company medical advisor, the Bonus shall be paid to the Employee or Employees legal representative on a pro-rated monthly basis from commencement of employment to termination over a term of thirty-six (36) months. If, prior to the Anniversary Date Employee resigns from the Company or the Company terminates Employees employment for cause, no portion of the Bonus shall be paid to Employee. If the Employee is terminated prior to the Anniversary Date without cause, the Employee shall be paid on termination all of the Bonus. Cause for purposes of this agreement shall mean persistent insubordination; or any single instance of substance abuse, fraud, embezzlement, self-dealing, insider trading, physical harm to another employee or sexual harassment or conviction of or a plea of guilty to a charge constituting a felony. | |
3. | Best Efforts . The Employee while employed by the Company shall devote all of Employees best efforts and all of Employees 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 Companys requirements for proper business conduct. | |
4. | Disclosure . Employee shall disclose promptly to the Company in writing and shall respond to all inquiries by the Company whether during or after employment with respect to, all inventions, programs, processes, data, formulae, trade secrets, ideas, concepts, discoveries and developments (Developments) 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 Employees work for the Company may be concerned; | ||
(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 Companys time, material or facilities. |
5. | Assignment . At all times during and after Employees 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. Employee agrees that Developments shall be and remain the property of the Company or its nominees. | |
6. | Development Compensation . Employee shall receive no compensation for actions required of the Employee under the requirements of Sections 4 and 5 above whether during or after termination of employment provided , however, that Employee shall be reimbursed by the Company for any of Employees reasonable out of pocket expenses necessarily arising out of such actions and which are approved in advance by the Company. | |
7. | Confidentiality; Non-Use . At all times during and after Employees 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 Employees own benefit any Developments or any secret or confidential Company information relating to research and development programs, products, customer information customer lists and business, sales plans and the contents of this agreement. | |
8. | Company Property . Employee shall carefully preserve the Companys property and not convert it to personal use. At the termination of Employee I 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 medial engineering records, drawings; and also any keys, key cards, credit cards, computers, equipment and vehicles. | |
9. | Competition . Employee agrees that after termination of Employees employment Employee shall: |
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 arising out of Employees employment with the Company or this agreement, the Employee now and will in the future: |
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 State and municipality where Employee is employed by 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. 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. | Legal Advice; Rescission . Employee agrees that this agreement involves Employees 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 Employees 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 Employees 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. | ||
13. | Law . This agreement and any disputes arising between Company and Employee shall be interpreted and governed by the law of the state where Employee is employed by the Company. | |
14. | 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 holding shall not invalidate any of the other agreements, covenants, restrictions and waivers herein, it being intended that such are to be severable and the invalidity of one shall not invalidate the others. |
/s/ Stephen P. Brady
|
/s/ Steven C. Argabright | |||||
|
|
|||||
|
||||||
|
Steven C. Argabright
|
FUEL TECH, INC. | ||||
|
||||
By:
|
/s/ Scott Schecter | |||
|
|
2
3
|
/s/ Volker Rummenhohl | /s/ Gina Wesanko | ||||||
|
|
|
||||||
|
||||||||
|
Gina Wesanko | |||||||
|
|
FUEL TECH, INC. | ||||
|
||||
By:
|
/s/ John F. Norris Jr. | |||
Title: |
CEO and President |
4
1
(a) | The construction costs of Tenants Installation of the Premises as assumed by Sublandlord as Tenant under Exhibit C of the Overlease, as amended; | ||
(b) | Fixed Rent; | ||
(c) | Additional Rent; and | ||
(d) | Sublandlords direct cost of maintaining the Premises, in addition to Additional Rent, if any, including without limiting the generality of the foregoing, utilities and cafeteria subsidy. |
(a) | make any material alterations or additions to the Premises or Subpremises; | ||
(b) | transfer, hypothecate, assign, conveyor mortgage this Sublease or any interest therein or allow any lien thereon; or | ||
(c) | take any action or fail to take any action in connection with the Premises or Subpremises as a result of which Sublandlord would be in default under the Overlease. |
2
Fuel Tech, Inc. | American Bailey Corporation | |||||||||
|
||||||||||
By:
|
/s/ Charles W. Grinnell | By: | /s/ Douglas G. Bailey | |||||||
|
3
Office | Allocation Percentage | Allocation of New Space (Sq. Ft.) | ||||||||||||||||||||||
Number | Individual | Fuel Tech | ABC | Office Size | Fuel Tech | ABC | ||||||||||||||||||
103 |
Betsy Kenyon
|
75 | % | 25 | % | 253 | 190 | 63 | ||||||||||||||||
104 |
Doug Bailey
|
25 | % | 75 | % | 369 | 92 | 277 | ||||||||||||||||
105 |
Ralph Bailey
|
75 | % | 25 | % | 373 | 280 | 93 | ||||||||||||||||
106 |
Nolan Schwartz
|
100 | % | 0 | % | 295 | 295 | | ||||||||||||||||
107 |
Tracy Krumme
|
100 | % | 0 | % | 157 | 157 | | ||||||||||||||||
108 |
Pat Fern
|
100 | % | 0 | % | 157 | 157 | | ||||||||||||||||
109 |
Eleanor Skolnick
|
100 | % | 0 | % | 157 | 157 | | ||||||||||||||||
110 |
Bill Cummings
|
100 | % | 0 | % | 235 | 235 | | ||||||||||||||||
111 |
Alex Dainoff
|
100 | % | 0 | % | 157 | 157 | | ||||||||||||||||
112 |
John OLeary
|
100 | % | 0 | % | 157 | 157 | | ||||||||||||||||
113 |
Brad Hittle
|
0 | % | 100 | % | 220 | | 220 | ||||||||||||||||
114 |
Bill Drake
|
0 | % | 100 | % | 242 | | 242 | ||||||||||||||||
115 |
Sophia Mattus
|
0 | % | 100 | % | 120 | | 120 | ||||||||||||||||
117 |
ABC File Room and Equipment Area
|
0 | % | 100 | % | 166 | | 166 | ||||||||||||||||
118 |
FT File Room
|
100 | % | 0 | % | 82 | 82 | | ||||||||||||||||
119 |
Bari Veno
|
100 | % | 0 | % | 102 | 102 | | ||||||||||||||||
125 |
ABC Guest Workstation
|
0 | % | 100 | % | 94 | | 94 | ||||||||||||||||
N/A |
FT Dedicated File Areas
|
100 | % | 0 | % | 65 | 65 | | ||||||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Total Direct Space
|
3,401 | 2,126 | 1,275 | |||||||||||||||||||||
|
||||||||||||||||||||||||
Percent of Direct Space
|
100.0 | % | 62.5 | % | 37.5 | % | ||||||||||||||||||
|
||||||||||||||||||||||||
Common Area (Allocated on %
Direct)
|
62.5 | % | 37.5 | % | 3,747 | 2,342 | 1,405 | |||||||||||||||||
|
||||||||||||||||||||||||
|
||||||||||||||||||||||||
Total Space Rented
|
||||||||||||||||||||||||
|
7,148 | 4,468 | 2,680 | |||||||||||||||||||||
|
Page | ||||
|
||||
ARTICLE I DEFINITIONS
|
1 | |||
SECTION 1.01. Defined Terms
|
1 | |||
SECTION 1.02. Classification of Loans and Borrowings
|
14 | |||
SECTION 1.03. Terms Generally
|
14 | |||
SECTION 1.04. Accounting Terms; GAAP
|
14 | |||
ARTICLE II THE CREDITS
|
15 | |||
SECTION 2.01. Commitments
|
15 | |||
SECTION 2.02. Loans and Borrowings
|
15 | |||
SECTION 2.03. Borrowing Procedures; Requests for Revolving Borrowings
|
15 | |||
SECTION 2.04. Intentionally Omitted
|
16 | |||
SECTION 2.05. Letters of Credit; Letters of Guaranty
|
16 | |||
SECTION 2.06. Funding of Borrowings
|
18 | |||
SECTION 2.07. Interest Elections
|
18 | |||
SECTION 2.08. Termination of Commitments
|
19 | |||
SECTION 2.09. Repayment of Loans; Evidence of Debt
|
19 | |||
SECTION 2.10. Prepayment of Loans
|
20 | |||
SECTION 2.11. Fees
|
20 | |||
SECTION 2.12. Interest
|
21 | |||
SECTION 2.13. Alternate Rate of Interest
|
21 | |||
SECTION 2.14. Increased Costs
|
22 | |||
SECTION 2.15. Break Funding Payments
|
22 | |||
SECTION 2.16. Taxes
|
23 | |||
SECTION 2.17. Payments Generally; Allocation of Proceeds; Sharing of Set-offs
|
24 | |||
SECTION 2.18. Indemnity for Returned Payments
|
24 | |||
ARTICLE III Representations and Warranties
|
24 | |||
SECTION 3.01. Organization; Powers
|
24 | |||
SECTION 3.02. Authorization; Enforceability
|
24 | |||
SECTION 3.03. Governmental Approvals; No Conflicts
|
25 | |||
SECTION 3.04. Financial Condition; No Material Adverse Change
|
25 | |||
SECTION 3.05. Properties
|
25 | |||
SECTION 3.06. Litigation and Environmental Matters
|
25 | |||
SECTION 3.07. Compliance with Laws and Agreements
|
26 | |||
SECTION 3.08. Investment Company Status
|
26 | |||
SECTION 3.09. Taxes
|
26 | |||
SECTION 3.10. ERISA
|
26 | |||
SECTION 3.11. Disclosure
|
26 | |||
SECTION 3.12. Material Agreements
|
26 | |||
SECTION 3.13. Solvency
|
27 | |||
SECTION 3.14. Insurance
|
27 | |||
SECTION 3.15. Capitalization and Subsidiaries
|
27 | |||
SECTION 3.16. Intentionally Omitted
|
27 | |||
SECTION 3.17. Employment Matters
|
27 | |||
ARTICLE IV CONDITIONS
|
27 | |||
SECTION 4.01. Effective Date
|
27 | |||
SECTION 4.02. Each Credit Event
|
29 | |||
ARTICLE V AFFIRMATIVE COVENANTS
|
29 | |||
SECTION 5.01. Financial Statements; Borrowing Base and Other Information
|
29 | |||
SECTION 5.02. Notices of Material Events
|
30 | |||
SECTION 5.03. Existence; Conduct of Business
|
31 |
i
Page | ||||
|
||||
SECTION 5.04. Payment of Obligations
|
31 | |||
SECTION 5.05. Maintenance of Properties
|
31 | |||
SECTION 5.06. Books and Records; Inspection Rights
|
31 | |||
SECTION 5.07. Compliance with Laws
|
32 | |||
SECTION 5.08. Use of Proceeds and Letters of Credit
|
32 | |||
SECTION 5.09. Insurance
|
32 | |||
SECTION 5.10. Casualty and Condemnation
|
32 | |||
SECTION 5.11. Depository Banks
|
32 | |||
SECTION 5.12. Further Assurances
|
32 | |||
ARTICLE VI NEGATIVE COVENANTS
|
33 | |||
SECTION 6.01. Indebtedness; Certain Equity Securities
|
33 | |||
SECTION 6.02. Liens
|
33 | |||
SECTION 6.03. Fundamental Changes
|
34 | |||
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions
|
34 | |||
SECTION 6.05. Asset Sales
|
35 | |||
SECTION 6.06. Sale and Leaseback Transactions
|
35 | |||
SECTION 6.07. Swap Agreements
|
35 | |||
SECTION 6.08. Restricted Payments
|
35 | |||
SECTION 6.09. Transactions with Affiliates
|
35 | |||
SECTION 6.10. Restrictive Agreements
|
36 | |||
SECTION 6.11. Amendment of Material Documents
|
36 | |||
SECTION 6.12. Additional Subsidiaries
|
36 | |||
SECTION 6.13. Capital Expenditures
|
36 | |||
SECTION 6.14. Financial Covenants
|
36 | |||
ARTICLE VII EVENTS OF DEFAULT
|
37 | |||
ARTICLE VIII MISCELLANEOUS
|
39 | |||
SECTION 8.01. Notices
|
39 | |||
SECTION 8.02. Waivers; Amendments
|
40 | |||
SECTION 8.03. Expenses; Indemnity; Damage Waiver
|
41 | |||
SECTION 8.04. Successors and Assigns
|
42 | |||
SECTION 8.05. Survival
|
43 | |||
SECTION 8.06. Counterparts; Integration; Effectiveness
|
43 | |||
SECTION 8.07. Severability
|
43 | |||
SECTION 8.08. Right of Setoff
|
44 | |||
SECTION 8.09. Governing Law; Jurisdiction; Consent to Service of Process
|
44 | |||
SECTION 8.10. WAIVER OF JURY TRIAL
|
44 | |||
SECTION 8.11. Headings
|
45 | |||
SECTION 8.12. Confidentiality
|
45 | |||
SECTION 8.13. Nonreliance; Violation of Law
|
45 | |||
SECTION 8.14. USA PATRIOT Act
|
45 | |||
SECTION 8.15. Disclosure
|
45 | |||
ARTICLE IX LOAN GUARANTY
|
45 | |||
SECTION 9.01. Guaranty
|
45 | |||
SECTION 9.02. Guaranty of Payment
|
46 | |||
SECTION 9.03. No Discharge or Diminishment of Loan Guaranty
|
46 | |||
SECTION 9.04. Defenses Waived
|
46 | |||
SECTION 9.05. Rights of Subrogation
|
47 | |||
SECTION 9.06. Reinstatement; Stay of Acceleration
|
47 | |||
SECTION 9.07. Information
|
47 | |||
SECTION 9.08. Termination
|
47 | |||
SECTION 9.09. Taxes
|
47 | |||
SECTION 9.10. Maximum Liability
|
47 | |||
SECTION 9.11. Contribution
|
48 |
ii
Page | ||||
|
||||
SECTION 9.12. Liability Cumulative
|
48 |
iii
Revolver | ||||||||||||||||
Revolver | Eurodollar | Letter of Credit | Commitment Fee | |||||||||||||
Leverage Ratio | CBFR Spread | Spread | Rate | Rate | ||||||||||||
Category 1
≤ .75 to 1.0 |
0 | 2.50 | % | 2.0 | % | .25 | % | |||||||||
Category 2
> .75 to 1.0 but ≤ 1.25 to 1.0 |
.25 | % | 2.75 | % | 2.25 | % | .25 | % | ||||||||
Category 3
> 1.25 to 1.0 |
.50 | % | 3.00 | % | 2.5 | % | .25 | % |
2
3
4
5
6
7
8
9
10
11
12
13
14
(i) | the aggregate amount of the requested Borrowing; | ||
(ii) | the date of such Borrowing, which shall be a Business Day; | ||
(iii) | whether such Borrowing is to be a CBFR Borrowing or a Eurodollar Borrowing; and | ||
(iv) | in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term Interest Period. |
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
Period | Maximum Capital Expenditures | |||
Borrowers Fiscal Year
|
$ | 10,000,000.00 |
35
Period | Net Income | |||
6/30/09
|
($2,000,000.00 | ) | ||
9/30/09
|
$ | 750,000.00 |
Period | Ratio | |||
12/31/09
|
2.0:1.0 | |||
3/31/10 and each quarter-end thereafter
|
1.5:1.0 |
36
37
38
(i) | if to any Loan Party, to the Borrower at: | ||
Fuel Tech, Inc.
27601 Bella Vista Parkway Warrenville, IL 60555 Attention: John Graham, CFO Telephone No.: (630) 845-4493 Facsimile No: (630) 845-4501 |
|||
(ii) | if to the Lender, to JPMorgan Chase Bank, N.A. at: | ||
JPMorgan Chase Bank, N.A.
111 East Busse Avenue Mount Prospect, IL 60056 Attention: Lewis E. Rieck Telephone No.: 847-506-8406 Facsimile No: 847-590-3745 |
|||
with a copy to: | |||
Locke Lord Bissell & Liddell LLP
111 West Wacker Drive Chicago, IL 60606 Attention: Kenneth M. Lodge Facsimile: 312-896-6478 |
39
40
41
42
43
44
45
46
47
FUEL TECH, INC.,
a Delaware corporation |
||||
By: | /s/ John P. Graham | |||
Name: | John P. Graham | |||
Title: | Chief Financial Officer | |||
FUEL TECH S.r.l.,
organized under the laws of the Italian Republic |
||||
By: | /s/ John P. Graham | |||
Name: | John P. Graham | |||
Title: | Director | |||
JPMORGAN CHASE BANK, N.A.
|
||||
By: | /s/ Eric Devereaux | |||
Name: | Eric Devereaux | |||
Title: | Vice President | |||
1. | I have reviewed the terms of the Agreement and I have made, or have caused to be made under my supervision, a detailed review of the transactions and conditions of the Borrower and its Subsidiaries during the accounting period covered by the attached financial statements and such financial statements present fairly in all material respects the fmancial condition and results of operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in accordance with GAAP consistently applied, subject to normal year-end audit adjustments and the absence of footnotes; | |
2. | The examinations described in paragraph 2 did not disclose, except as set forth below, and I have no knowledge of (i) the existence of any condition or event which constitutes a Default during or at the end of the accounting period covered by the attached financial statements or as of the date of this Certificate or (ii) any change in GAAP or in the application thereof that has occurred since the date of the audited financial statements referred to in Section 3.04 of the Agreement; | |
3. | I hereby certify that the Borrower has not changed (i) its name, (ii) its chief executive office, (iii) principal place of business, (iv) the type of entity it is or (v) its state of incorporation or organization since the date ofthe last certificate; | |
4. | Schedule I attached hereto sets forth financial data and computations evidencing the Borrowers compliance with certain covenants of the Agreement, all of which data and computations are true, complete and correct; and | |
5. | Schedule II hereto sets forth the computations necessary to determine the Applicable Rate commencing on the Business Day this certificate is delivered. |
FUEL TECH, INC. | ||||||
|
||||||
|
By: | |||||
|
||||||
|
Name: | |||||
|
||||||
|
Title: | |||||
|
[NEW SUBSIDIARY] | ||||||
|
By: | |||||
|
||||||
|
Name: | |||||
|
||||||
|
Title: | |||||
|
Acknowledged and accepted: | ||||
|
||||
JPMORGAN CHASE BANK, N.A. | ||||
|
||||
By:
|
||||
|
||||
Name:
|
||||
|
||||
Title:
|
||||
|
CASH INVESTMENT POLICY
|
2 | |||
|
||||
OVERVIEW
|
2 | |||
|
||||
ADOPTION
|
2 | |||
|
||||
SCOPE
|
2 | |||
|
||||
INVESTMENT OBJECTIVES
|
2 | |||
Preservation of Capital
|
2 | |||
Maintain Liquidity
|
2 | |||
Maximize Return
|
3 | |||
Specific Obligations and Future Needs
|
3 | |||
|
||||
AUTHORIZED INVESTMENTS AND ALLOWABLE CREDIT RATING
|
3 | |||
|
||||
INVESTMENT ALLOCATION
|
5 | |||
|
||||
AUTHORIZED BROKER DEALERS and QUALIFICATIONS
|
5 | |||
|
||||
MONITORING OF OBJECTIVES AND RESULTS
|
5 | |||
|
||||
ADDENDUM A AUTHORIZED INVESTMENT PERSONNEL
|
6 | |||
|
||||
ADDENDUM B AUTHORIZED INVESTMENT BROKERS and DEALERS
|
7 |
2
Minimum Allowable Credit | ||||
Security | Rating | Maximum Duration/Maturity | ||
Direct obligations of the U.S. Treasury, including Bills, Notes and Bonds
|
N/A | 1 Year | ||
|
||||
Federal Agency and Government Sponsored Entity Securities e.g. FNMA, GNMA, FHLB, Freddie Mac
|
N/A | 1 Year | ||
|
||||
Corporate Obligations, including Commercial Paper, Bonds and Notes as issued by either domestic or foreign entities
|
Rated A1 by Standard and Poors, Rated P1 by Moodys or Rated AAA by Standard & Poors, Rated Aaa Moodys | 1 Year | ||
|
||||
Municipal Notes and Bonds
|
Rated SP1 by Standard and Poors, Rated MIG1 by Moodys | 1 Year | ||
|
||||
Money Market Mutual Funds
|
Rated AAA by Standard & Poors,
Rated Aaa Moodys |
1 Year | ||
|
||||
Money Market Instruments, including Certificates of Deposits, Bankers Acceptances, Bank Time Deposits, Repurchase Agreements
|
Rated A1 by Standard & Poors,
Rated P1 by Moodys or Rated AAA by Standard & Poors, Rated Aaa Moodys |
1 Year |
3
Minimum Allowable Credit | ||||
Security | Rating | Maximum Duration/Maturity | ||
Asset-Backed Securities
|
Rated AAA by Standard & Poors,
Rated Aaa Moodys |
1 Year |
4
5
Name | Title | |
John P. Graham
|
Chief Financial Officer, Sr. Vice President, Treasurer | |
Sandra K. Brunk
|
Manager Treasury Operations, Assistant Treasurer | |
Ellen T. Albrecht
|
Vice President, Controller |
6
Broker Dealer Name | ||
Bank of America
|
||
JPMorgan Chase
|
7
Legal Name | Jurisdiction of Formation | |
Fuel Tech Jamaica Limited
|
Jamaica | |
Fuel Tech Targeted Injection
|
||
Chemicals, Ltd.
|
Canada | |
Fuel Tech Holdings N.V.
|
Netherlands | |
Fuel Tech S.r.L.
|
Italy | |
Fuel Tech (HK) Holding Limited
|
Hong Kong |
Measurement Date | Ratio | |
12/31/09
|
2.0:1.0 | |
3/31/10 and each quarter thereafter
|
1.5:1.0 |
BORROWER:
FUEL TECH, INC., a Delaware corporation |
||||
By: | /s/ John P. Graham | |||
Name: | John P. Graham | |||
Title: | Chief Financial Officer | |||
FUEL TECH S.r.l.,
organized under the laws of the Italian Republic |
||||
By: | /s/ John P. Graham | |||
Name: | John P. Graham | |||
Title: | Director | |||
LENDER:
JPMORGAN CHASE BANK, N.A. a national association |
||||
By: | /s/ Jennifer Folsom | |||
Name: | Jennifer Folsom | |||
Title: | AVP | |||
1
Measurement Date | Ratio | |
3/31/10 | 2.75:1.0 | |
6/30/10 and the last day of each quarter thereafter | 1.5:1.0 |
2
3
4
BORROWER:
FUEL TECH, INC., a Delaware corporation |
||||
By: | /s/ John P. Graham | |||
Name: | John P. Graham | |||
Title: | Chief Financial Officer | |||
FUEL TECH S.r.l.,
organized under the laws of the Italian Republic |
||||
By: | /s/ John P. Graham | |||
Name: | John P. Graham | |||
Title: | Director | |||
LENDER:
JPMORGAN CHASE BANK, N.A. a national association |
||||
By: | /s/ Jennifer Folsom | |||
Name: | Jennifer Folsom | |||
Title: | AVP | |||
5
Date: November 5, 2009 | By: | /s/ John F. Norris Jr. | ||
John F. Norris Jr. | ||||
Chief Executive Officer
(Principal Executive Officer) |
Date: November 5, 2009 | By: | /s/ John P. Graham | ||
John P. Graham | ||||
Chief Financial Officer
(Principal Financial Officer) |
Date: November 5, 2009 | By: | /s/ John F. Norris Jr. | ||
John F. Norris Jr. | ||||
Chief Executive Officer
(Principal Executive Officer) |
||||
Date: November 5, 2009 | By: | /s/ John P. Graham | ||
John P. Graham | ||||
Chief Financial Officer
(Principal Financial Officer) |
||||