Registration No. 333-______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FUEL TECH, INC.
(Exact name of registrant as specified in its charter)
DELAWARE PENDING APPLICATION
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation)
512 KINGSLAND DRIVE
BATAVIA, IL
(Address of Principal Executive Offices)
60510
(Zip Code)
1993 INCENTIVE PLAN OF FUEL-TECH N.V.
(Full title of the plan)
CHARLES W. GRINNELL, ESQ.
FUEL TECH, INC.
512 KINGSLAND DRIVE
BATAVIA, IL 60510
(Name and address of agent for service)
630-845-4437
(Telephone number, including area code of agent for service)
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Copies to:
ERNEST M. LORIMER, ESQ.
FINN DIXON & HERLING LLP
177 BROAD STREET, 15TH FLOOR
STAMFORD, CONNECTICUT 06901
(203) 325-5000
(203) 325-5001 (fax)
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities To Be Registered Registered (1) Share (2) Price (2) Registration Fee
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Common Stock, $0.01 par value 4,843,430 $14.285 $69,188,397.55 $7,403.16
per share
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(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as
amended, this registration statement includes an indeterminate number of shares
of Common Stock that may be offered or sold pursuant to the employee benefit
plan(s) described herein.
(2) In accordance with Rule 457(h)(1) of the Securities Act of 1933, as amended,
based upon the following shares and exercise prices: 4,843,430; at $14.285,
estimated solely for the purpose of calculating the registration fee, based on
the average of the high and low sales prices of the Common Stock on the Nasdaq
Stock Market on September 25, 2006, in accordance with Rule 457(f)(1) of the
Securities Act of 1933, as amended.
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EXPLANATORY NOTE
This Post Effective Amendment to the Registration Statement on Form S-8
(File No. 333-36390) filed on May 5, 2000 (the "Registration Statement"), with
the Securities and Exchange Commission (the "Commission"), is being filed
pursuant to Rule 414 of the Securities Act of 1933, as amended (the "Securities
Act"), to reflect the change in the place of incorporation of Fuel-Tech N.V.
from the Netherlands Antilles to the State of Delaware on September 30, 2006. In
accordance with Rule 414 of the Securities Act, Fuel Tech, Inc., a Delaware
corporation (the "Registrant"), as the successor issuer, hereby expressly adopts
the Registration Statement, as well as the 1993 Incentive Plan of Fuel-Tech
N.V., a Netherlands Antilles limited liability company (the "Plan"), which
relates to such Registration Statement, as its own for all purposes of the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION*
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* The information required by Items 1 and 2 of Part I of Form S-8 is omitted
from this registration statement in accordance with the Explanatory Note to Part
I of this registration statement.
Part II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents originally filed with the Commission by
Fuel-Tech N.V. are incorporated herein by reference:
(a) Fuel-Tech N.V.'s Annual Report on Form 10-K for the year ended
December 31, 2005;
(b) Fuel-Tech N.V.'s Quarterly Report on Form 10-Q for the
quarterly period ended March 31, 2006;
(c) Fuel-Tech N.V.'s Current Reports on Form 8-K, dated February
28, 2006, April 5, 2006, August 4, 2006 and August 15, 2006;
(d) Fuel-Tech N.V.'s Proxy Statement dated April 21, 2006;
(e) Fuel-Tech N.V.'s Quarterly Report on Form 10-Q for the
quarterly period ended June 30, 2006; and
(f) The description of the Registrant's common stock contained in
Amendment No. 1 to the Registrant's Registration Statement on
Form 8-A, filed on October 2, 2006.
All documents filed by the Registrant pursuant to Sections 13(a),
13(c), 14 of 15(d) of the Exchange Act after the date hereof and prior to the
filing of the post-effective amendment that indicates that all securities
offered under this registration statement have been sold or that deregisters all
securities then remaining unsold, shall be deemed to be incorporated by
reference herein and to be part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein) modifies or
supersedes such statement. Any statement so modified or superseded shall not be
deemed to constitute a part hereof except as so modified or superseded.
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ITEM 4. DESCRIPTION OF SECURITIES
Not applicable. The class of securities to be offered is registered
under Section 12 of the Exchange Act.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Charles W. Grinnell, Esq. is furnishing an opinion required for this
registration statement as to the legality of the securities to be issued under
the Plan. Mr. Grinnell is an officer, director and employee of the Registrant
and has 50,000 outstanding options to purchase shares of Common Stock of the
Registrant.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the Delaware General Corporation Law, a
corporation may indemnify a director, officer, employee or agent of the
corporation (or a person who is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise) against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the corporation and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. In the case of an action brought by or in the
right of a corporation, the corporation may indemnify a director, officer,
employee or agent of the corporation (or a person who is or was serving at the
request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise) against
expenses (including attorneys' fees) actually and reasonably incurred by him if
he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, except that no indemnification
may be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the
extent a court finds that, in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses as the
court shall deem proper.
Fuel Tech Inc.'s certificate of incorporation provides that no director
of Fuel Tech, Inc. shall be liable to Fuel Tech, Inc. or its stockholders for
monetary damages for breach of fiduciary duty as a director to the fullest
extent permitted by law.
Fuel Tech, Inc.'s certificate of incorporation also provides that Fuel
Tech, Inc. shall indemnify to the fullest extent permitted by Delaware law any
and all of its directors and officers, or former directors and officers, or any
person who may have served at Fuel Tech, Inc.'s request as a director or officer
of another corporation, partnership, joint venture, trust or other enterprise.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The following exhibits are filed as part of this registration
statement:
NUMBER DESCRIPTION
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4.1 The 1993 Incentive Plan of Fuel-Tech N.V., as amended through June
3, 2004 and the 2006 Forms of Option Agreements of Fuel Tech, Inc.
5.1 Opinion of Charles W. Grinnell, Esq.
23.1 Consent of Charles W. Grinnell, Esq. (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
24.1 Power of Attorney (included on signature page)
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ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration Fee"
table in the effective registration statement; and
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that clauses (1)(i) and (1)(ii) shall not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or Section 15(d) of the
Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the General Corporation Law of the State of Delaware,
Fuel Tech, Inc.'s Certificate of Incorporation and By-Laws, as amended, or
otherwise, the Registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in such Securities
Act, and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in such Securities Act and will be governed
by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Stamford, State of Connecticut, on this 2nd day of
October, 2006.
FUEL TECH, INC.
By: /s Ralph E. Bailey
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Name: Ralph E. Bailey
Title: Executive Chairman and Director
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Ralph E. Bailey, Charles W. Grinnell and Vincent J. Arnone, and each of
them, any of whom may act without the joinder of the other, as his or her lawful
attorneys-in-fact and agents, with full power of substitution and resubstitution
for him or her in any and all capacities, to sign any or all amendments or
post-effective amendments to this registration statement, and to file the same,
with exhibits hereto and other documents in connection therewith or in
connection with the registration of the securities under the Securities Act of
1934, as amended, with the Securities and Exchange Commission, granting unto
such attorneys-in-fact and agents full power and authority to do and perform
each and every act and thing requisite and necessary in connection with such
matters and hereby ratifying and confirming all that such attorneys-in-fact and
agents or his substitutes may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed
Signature Title Date
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/s/ Ralph E. Bailey
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Ralph E. Bailey Executive Chairman and Director October 2, 2006
/s/ John F. Norris, Jr. President, Chief Executive Officer and Director October 2, 2006
----------------------- (Principal Executive Officer)
John F. Norris, Jr.
/s/ Vincent J. Arnone Chief Financial Officer, Vice President and Treasurer October 2, 2006
--------------------- (Principal Financial and Accounting Officer)
Vincent J. Arnone
/s/ Douglas G. Bailey
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Douglas G. Bailey Managing Director October 2, 2006
/s/ Thomas J. Shaw
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Thomas J. Shaw Managing Director October 2, 2006
/s/ Miguel Espinosa
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Miguel Espinosa Managing Director October 2, 2006
/s/ Samer S. Khanachet
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Samer S. Khanachet Managing Director October 2, 2006
/s/ John D. Morrow
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John D. Morrow Managing Director October 2, 2006
/s/ Thomas L. Jones
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Thomas L. Jones Managing Director October 2, 2006
/s/ Charles W. Grinnell Managing Director, Vice President, General Counsel and October 2, 2006
----------------------- Corporate Secretary
Charles W. Grinnell